Castillo v Presmist Formwork Contractors Pty Ltd

[2019] NSWDC 6

District Court

New South Wales

Medium Neutral Citation:

Castillo v Presmist Formwork Contractors Pty Ltd [2019] NSWDC 6

Hearing dates:

11, 12, 13 September and 2 November 2018

Date of orders:

01 February 2019

Decision date:

01 February 2019

Jurisdiction:

Civil

Before:

Judge Levy SC

Decision:

1. Verdict and judgment for the plaintiff in the amount of $138,515.06;

 

2. The exhibits are to be returned;

 

3. The defendant is to pay the plaintiff's costs of the proceedings on the ordinary basis unless a party is able to demonstrate an entitlement for some other costs order;

 4. Liberty to apply on 7 days’ notice if further or other orders are required, including as to costs.

Catchwords:

TORTS – occupier’s liability – injury to labour-hire employee on defendant’s building construction site – plaintiff’s claim of negligence on the part of the defendant – defendant’s claim of contributory negligence on the part of the plaintiff – defendant’s claim of notional negligence of plaintiff’s employer – issues to be determined according to provisions of Civil Liability Act 2002 and s 151Z(2) of the Workers Compensation Act 1987; DAMAGES – assessment of claimed heads of damage

Legislation Cited:

Civil Liability Act 2002, s 5B, s 5C, s 5D, s 5E, s 5R, s 5S, s 13, s 15, s 16
Evidence Act 1995, s 60
Uniform Civil Procedure Rules 2005, Sch 7, cl 5(1)(c), r 31.27(1)(c)
Work Health and Safety Act (NSW) 2011
Workers Compensation Act 1987, s 151L, s 151Z, s 152

Cases Cited:

Alcan Gove Pty Ltd v Zabic [2015] HCA 33; (2015) 257 CLR 1
Azar v Kathirgamalingan [2012] NSWCA 429; (2012) 62 MVR 462
Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25
Glen v Sullivan [2015] NSWCA 191
Jurox Pty Ltd v Fullick [2016] NSWCA 180
Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638
Mt Isa Mines Ltd v Pusey [1970] HCA 60; (1970) 125 CLR 383
Penrith City Council v Parks [2004] NSWCA 201
Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164
State of NSW v Moss [2000] NSWCA 133, (2000) 54 NSWLR 536
Strong v Woolworths Ltd [2012] HCA 5, (2012) 246 CLR 182
Watts v Rake [1960] HCA 58; (1960) 108 CLR 158

Category:

Principal judgment

Parties:

Patricio Castillo (Plaintiff)
Presmist Formwork Contractors Pty Ltd (Defendant)

Representation:

Counsel:
Mr A Campbell (Plaintiff)
Mr W McManus (Defendant)

  Solicitors:
Marshall & Gibson (Plaintiff)
Colin Biggers & Paisley (Defendant)

File Number(s):

2017/138804

Publication restriction:

None

Judgment

Table of Contents

Factual background and nature of the case	[1] – [4]
Issues	[5]
Evidence overview	[6] – [7]
Facts emerging from oral evidence	[8] – [31]
The plaintiff	[9] – [13]
Mr Guiseppe Angiletta	[14] – [19]
Mr Iara	[20] – [24]
Mr Cerqueira	[25]
Mr Salvatore Angiletta	[26] – [30]
Dr Conrad	[31]
Findings on disputed matters of fact	[32] – [76]
(1) Plaintiff’s background circumstances	[33]
(2) Plaintiff’s pre-accident medical records	[34] – [36]
(3) Accident circumstances	[37] – [41]
(4) Injuries and initial treatment	[42] – [48]
(5) Subsequent medical and allied reviews	[49]
(6) Dr Conrad’s oral evidence	[50] – [59]
(7) Resolution of issues raised on the medical evidence	[60] – [63]
(8) Disabilities that remain	[64] – [65]
(9) Work effects	[66] – [70]
(10) Domestic effects	[71]
(11) Mitigation	[72]
(12) Plaintiff’s most likely pre-accident circumstances	[73] – [76]
Issue 1 – Risk of harm and duty of care	[77] – [78]
Issue 2 – Duty of care and breach	[79] – [95]
Requirements of s 5B(1) of the CL Act	[84] – [87]
Requirements of s 5B(2) of the CL Act	[88] – [92]
Other principles to be considered: s 5C of the CL Act	[93] – [94]
Conclusions as to breach of duty of care and negligence	[95]
Issue 3 – Contributory negligence	[96] – [103]
Issue 4 – Causation	[104] – [106]
Issue 5 – Consideration of s 151Z(2) of the WC Act	[107] – [113]
Issue 6 – Assessment of damages	[114] – [141]
Actuarial factors	[115]
Non-economic loss	[116] – [119]
Past economic loss	[120] – [126]
Fox v Wood	[127]
Future economic loss	[128] – [131]
Past domestic assistance	[132]
Future domestic assistance	[133] – [137]
Future treatment expenses	[138] – [139]
Past out-of-pocket expenses	[140]
Summary of damages assessment	[141]
Disposition	[142]
Costs	[143]
Orders	[144]

Factual background and nature of the case

1. The plaintiff, Mr Patricio Castillo, now aged 70 years, brings these proceedings seeking damages for an injury he claims to have sustained at about 10.45am on Friday 29 May 2015, whilst manipulating a large and heavy sheet of formwork plywood in preparation for a remedial concrete pour to fill a concreting gap on a hotel construction site at 1019 O’Riordan Street, Mascot, occupied by the defendant, Presmist Formwork Contractors Pty Ltd.

2. The defendant was a sub-contractor providing formwork and concreting services on that site. The defendant was not the direct employer of the plaintiff. It had obtained the plaintiff’s labour from a labour hire company, Valeron Construction Pty Ltd, which is not a party to the proceedings.

3. The defendant denies it was negligent. In the alternative, it has raised a defence of alleged contributory negligence by the plaintiff. Pursuant to s 151Z of the Workers Compensation Act 1987 (“WC Act”), the defendant seeks a reduction in any damages awardable to the plaintiff on account of an alleged breach of care on the part of the plaintiff’s employer.

4. The plaintiff’s claim and the defendant’s defences must be determined in accordance with the requirements of the Civil Liability Act 2002 (“CL Act”).

Issues

5. Apart from matters concerning the credibility and reliability of testimony, the issues calling for decision in this case may be conveniently identified as follows:

1. Identification of the relevant risk of harm and related questions of the scope and content of the duty of care owed to the plaintiff;

2. Whether the defendant negligently breached the duty of care owed to the plaintiff;

3. Whether there was contributory negligence on the part of the plaintiff;

4. Whether the plaintiff’s injuries, disabilities and claimed losses were relevantly caused by negligence on the part of the defendant;

5. Whether there should be a reduction in the amount of the plaintiff’s damages on an application of s 152 of the WC Act by reason of alleged negligence on the part of the plaintiff’s employer;

6. The assessment of the plaintiff’s entitlement to damages.

Evidence overview

6. The plaintiff was the only witness to give oral evidence in his case on factual matters. He called oral evidence from Dr Peter Conrad a consultant surgeon on contested medical issues. The remainder of the plaintiff’s case consisted of documentary evidence.

7. In the defendant’s case, oral evidence on factual matters was given by Mr Guiseppe Angiletta, Mr Rene Iara and Mr Phillip Cerqueira, who were formwork carpenters working on the site at the time, and Mr Salvatore Angiletta, who was a director of the defendant company.

Facts emerging from oral evidence

8. In the paragraphs that follow, I set out a summary of the factual evidence, which I accept, unless otherwise indicated. I will also identify my conclusions concerning the credibility and the reliability of the testimony given by the respective witnesses who gave oral evidence.

The plaintiff

9. The plaintiff left school at Year 10 level when he was aged 16 years. Due to political turmoil in Chile, he moved to Peru where he worked as a welder and completed a motor mechanics course. After arrival in Australia at age 30, he worked in a furniture store for three months before finding work in the construction industry. He has worked for various employers in that industry. At the time of his injury he was carrying out casual work on the defendant’s construction site which is the subject of this claim.

10. The plaintiff has limited fluency in the English language and gave most of his evidence through a Spanish interpreter. He has four children. His three sons are independent adults. He has a dependent teenage daughter living with his ex-wife in Chile. At the time of the subject accident, he was providing his daughter with financial support from his earnings in Australia. A key motivational factor for him continuing to work was so that he could remit some of his earnings to support his daughter.

11. In the years leading to the subject injury, the plaintiff had always engaged in relatively heavy work. It is therefore understandable that over time, he incurred a number of work-related injuries. These included a dislocated shoulder in 1983, a left knee injury in 1995, a lumbar spine injury also in 1995, which resulted in a lumbar fusion, a right knee injury and a right shoulder injury in 2004, a work-related neck injury in 2006, and a neck injury in a motor vehicle accident in 2006. His neck injury resulted in discectomy, rhizolysis and cervical fusion surgery in 2011: Exhibit “A”.

12. Between 2000 and 2003, the plaintiff had moved back to live in Chile. On his return to Australia in 2003 he returned to work in the formwork and construction industry. In March 2015, the plaintiff commenced casual work on the defendant’s construction site. He was working on the site in question on the day of the subject accident. Despite his history of previous injury, before the subject accident the plaintiff remained sufficiently fit to enable him to continue to work as a formworker on construction sites.

13. Although in his evidence the plaintiff was at times forthright and anxious to explain matters, I considered him to be a truthful witness whose evidence could be relied upon in determining key matters of fact in dispute.

Mr Guiseppe Angiletta

14. The defendant called Mr G Angiletta, a formwork carpenter and site foreman to give oral evidence: T81 – T91. He described the work on the site in general terms. The hierarchal arrangement was that he reported to his son, Mr Sam Angiletta, the site supervisor, who was not on site all of the time: T82.42 – T82.49. Mr G Angiletta was the one who gave the plaintiff his daily work instructions every morning: T84.46 – T85.16.

15. Mr G Angiletta denied that the plaintiff had ever told him that he had been injured on the site: T85.5 – T85.15; T89.29; T90.9. He stated that he communicated with the plaintiff in the Italian language although the plaintiff was not very fluent in that language: T86.43. He described the plywood formwork sheets on the site as being 1.8m long, 1.2m wide and 17mm thick. The weight of the sheets varied depending on the age of the piece and the degree of moisture content that had been absorbed: T87 – T88.

16. Mr G Angiletta agreed that the plaintiff was a good formwork carpenter who was fit and capable, and who did his job as was required: T89.31 – T90.2.

17. Mr G Angiletta denied the plaintiff’s assertion that at the time in question the plaintiff had been engaged in applying remedial formwork to cover defects or gaps that remained in an area where concrete had previously been poured for a lift shaft: T90.33. I do not accept that denial.

18. I consider Mr G Angiletta’s evidence to be of limited probative value because it seemed to me that his denial of the detail of the plaintiff’s assigned work tasks was based on a general assumption by him as to the method by which the lift shaft formwork was fabricated and without due regard to the actual remedial task in which the plaintiff was engaged at the time.

19. I do not accept Mr G Angiletta’s denials of the plaintiff’s work tasks or his denial that the plaintiff had informed him that he had been injured on the site.

Mr Iara

20. The defendant called evidence from Mr Rene Iara, a fellow formwork carpenter on the site. He gave evidence about the general nature and the system of formwork construction on the defendant’s site: T106 – T112. He had worked on the site with the plaintiff for about 3 weeks: T107.50 – T108.9. He also hailed from Chile and had social contact with the plaintiff whilst on the site during meal breaks but they did not work together on the same team: T108.

21. The substance of Mr Iara’s evidence in chief seemed to be that the plaintiff had never told him he had been injured on the job: T108.36. That evidence was inconsistent with a statement he made on 3 July 2018: Exhibit “F”, par 9 and par 10.

22. His evidence was of no material relevance as he was not in a position to witness the plaintiff being injured. He said that the plaintiff had never reported his injury to him: T109.14.

23. Mr Iara had signed a witness statement on 3 July 2018, some 38 months after the plaintiff’s accident: T110.12 – T110.17. In cross-examination, when his memory was refreshed from the content of that statement, he acknowledged that the plaintiff had told him he needed to speak to Joe about having hurt himself: T111.27. Mr Iara acknowledged that after the plaintiff had spoken to Joe he then stopped working on the site: T111.46.

24. Other aspects of Mr Iara’s evidence revealed him to have an uncertain and confused memory of the events. I do not accept his evidence where it is in conflict with the evidence of the plaintiff.

Mr Cerqueira

25. The defendant called evidence from Mr Phillip Cerqueira, another formworker on the site: T113 – T116. He said he had no conversation with the plaintiff about being injured on the job: T115.21. He gave no evidence of relevance.

Mr Salvatore Angiletta

26. The defendant called evidence from Mr Salvatore (Sam) Angiletta, a formworker and director of the defendant company: T123 – T131. He had no recollection of a gap in the concrete which required the plaintiff to undertake the consequential remedial formwork that was described in the plaintiff’s evidence: T124.1 – T124.5. He had no direct supervisory role over the plaintiff’s work: T125.50.

27. Mr S Angiletta recalled the fact of the plaintiff’s employment and stated that the plaintiff never reported the subject accident to him: T130.1 – T130.5. He gave flippant answers to some questions which indicated that he had not given the matter serious attention. In my view, he gave no evidence of relevance that was either confirmatory or contradictory of the plaintiff’s case.

28. The oral evidence of Mr S Angiletta was based on a witness statement he had signed on 13 September 2018, which was the third day of the hearing: Exhibit “6”. Some parts of that statement were the subject of successful objections: T122.43.

29. That statement makes it clear that Mr S Angiletta’s role with the defendant company was in connection with the commercial site next door to the site where the plaintiff was working. However, he went on to describe the general method of formwork used on the site and stated that the gaps in concrete pours as described by the plaintiff were “extremely rare” when that method was used: Exhibit “6”, par 5.

30. There was nothing in the admitted evidence of Mr S Angiletta that contradicted the plaintiff’s version of the events concerning the work tasks in which he was engaged when he sustained the injury that he described, and which I accept.

Dr Conrad

31. Dr Peter Conrad’s medical opinions were not contradicted by oral evidence from any other medical expert. No questions arose concerning either the credibility or the reliability of his evidence.

Findings on disputed matters of fact

32. In the paragraphs that follow, unless otherwise qualified, I set out my findings of fact concerning: (1) the plaintiff’s background circumstances; (2) the plaintiff’s previous medical records; (3) the circumstances of the accident; (4) his injuries and initial treatment; (5) the subsequent medical and allied reviews of the plaintiff’s post-injury condition; (6) Dr Conrad’s evidence; (7) resolution of matters arising from the medical evidence; (8) the plaintiff’s remaining disabilities; (9) the effect of the injuries on the plaintiff’s work capacity; (10) the domestic effects of the plaintiff’s injuries; (11) matters of mitigation; (12) the plaintiff’s most likely circumstances but for the subject accident.

(1) Plaintiff’s background circumstances

33. Before setting out the factual events and circumstances of the accident that is the subject of these proceedings, in addition to noting the background matters set out at paragraph [9] above, it is relevant to set out the known facts of the plaintiff’s pre-accident medical history concerning injuries or problems relating to his cervical and lumbar spines for which he has had fusion surgery in each instance, his shoulders, his hips and his knees in the context of prior medical treatment, and his workers’ compensation claims, in respect of which the evidence is very sparse: Exhibit “B”, Tab 1, p 7. Not all of those historical matters were documented in detail in the evidence.

(2) Plaintiff’s pre-accident medical records

34. The defendant tendered selected parts of the plaintiff’s pre-accident medical records which, when arranged in chronological order, revealed the following matters:

1. On 14 May 1995, the plaintiff’s general practitioner, Dr Carlos Robalino, referred the plaintiff to Dr L Rozario for treatment of a back injury that occurred two months earlier, and for treatment of a left knee injury consisting of a damaged meniscus that occurred in February 1995. At the time it was noted that the plaintiff had been receiving physiotherapy for his left knee injury: Exhibit “1”, Tab 3, p 49;

2. On 1 June 1995, at the referral of Dr Robalino, the plaintiff was examined by Dr Jayker Davé, an orthopaedic surgeon, for assessment and treatment of a torn medial meniscus, for which arthroscopic repair was recommended: Exhibit “1”, Tab 4, p 50;

3. On 1 September 1995, Dr Davé issued a progress report concerning the plaintiff’s left knee, noting the cause of the plaintiff’s chronic pain in the knee was unclear. He certified the plaintiff was unfit for activity involving squatting or heavy lifting, but was fit for selected duties: Exhibit “1”, Tab 5, p 51;

4. On 18 September 1995, at the request of Mr Stephen Hodges, solicitor, Dr Davé issued a progress report on the plaintiff’s left knee condition. He noted that injury had resulted from a twisting movement at work, and was treated by meniscectomy, but that the plaintiff remained affected by chronic left knee pain. Dr Davé predicted an eventual fitness to return to labouring work: Exhibit “1”, Tab 6, pp 52 – 54;

5. On 9 July 1996, the plaintiff underwent a bone scan study for bilateral knee pain, noting that the left was worse than the right. Moderate synovitis/arthritis was noted to be affecting the left knee, suggestive of degenerative changes: Exhibit “1”, Tab 7, p 55;

6. On 4 November 1997, at the request of Dr Davé, the plaintiff underwent an MRI scan of his left knee, which identified a focal cartilaginous defect in the articular surface of the patellar groove in the medial aspect, consistent with Grade III – IV chondral damage, with a focal deficit in the central portion of the medial meniscus, and with an associated peripheral oblique tear: Exhibit “1”, Tab 8, pp 56 – 57;

7. On 20 November 1997, Dr Davé commented on the MRI scan of the plaintiff’s left knee and suggested an arthroscopic examination of that knee: Exhibit “1”, Tab 9, p 58;

8. On 6 May 1998, Dr Robalino issued a medical report stating the plaintiff suffers from chronic back pain, with pain to his legs and pain in his left knee as a result of a work injury, rendering him “totally and permanently unfit to work for life”, and needing “further surgical treatment of his back and knee”, with physiotherapy and frequent painkilling medication: Exhibit “1”, Tab 10, p 59;

9. On 13 July 2004, Dr Robalino wrote a referral to a Dr O’Neal seeking a review of the plaintiff’s lower back pain, noting also that the plaintiff had developed diabetes, gastric ulcers and intense knee pains related to his work and degenerative conditions: Exhibit “1”, Tab 11, p 60;

1. On 13 July 2004, Dr Robalino also referred the plaintiff to Dr Davé for complaints of an exacerbation of his knee pains: Exhibit 1, Tab 11, p 61;

2. On 3 December 2012, at the request of Firths Lawyers, the plaintiff was examined by Dr Elias Mataloni, an occupational physician, for a medico-legal assessment of injuries he sustained on 17 June 1995 (back injury), and 26 August 2004 (right shoulder, right knee). Dr Mataloni referred to his earlier reports of 11 April 2011 and 14 November 2011, which were not in evidence in these proceedings: Exhibit “1”, Tab 12, pp 62 – 70.

35. The defendant tendered two sets of the plaintiff’s medical records kept by treating general practitioners. The first was from the Fairfield Chase Medical Centre: Exhibit “1”, Tab 13, pp 71 – 135. The defendant only referred to two entries in those records. First, namely an entry on 19 September 2014 citing the plaintiff being adamant about his inability to work (at p 119). Secondly, a reference to the plaintiff’s court appearance on 16 June 2014 relating to an unfitness for any work due to chronic pain (at p 122), where the plaintiff’s general practitioner had noted on an informal assessment, that the plaintiff was walking and sitting, and that on observation, he “rises brisk”. The second set of medical records was obtained from the Castlecrag Medical Practice: Exhibit “1”, Tab 14, pp 136 – 146. No detailed reference was made to those records in the course of cross-examination of the plaintiff, or submissions.

36. The impressive fact to emerge from the above pre-accident medical history is that the plaintiff was working at the time of the subject accident, despite that significant previous injury history.

(3) Accident circumstances

37. Before the plaintiff commenced employment at the defendant’s site he had undergone a site induction: T15.44. His work on the day in question involved making and placing plywood formwork boxes in preparation for a revised concrete pour to repair a defect from a previous pour. His work tasks on the site were the subject of directions issued to him by Mr Guiseppe Angiletta, also known as Joe: T16.34.

38. On the day of the accident Mr G Angiletta had directed the plaintiff to do some remedial formwork to rectify a concreting defect that had been discovered when formwork from a previous pour was being stripped: T17.19. He was directed to undertake that work in the vicinity of an intended elevator shaft on the ground floor of the site: T18.1 – T18.8. I accept that Mr G Angiletta had told the plaintiff to create some remedial formwork in preparation for an anticipated remedial concrete pour. The work was conducted in a hurried fashion on that site, according to the directions of Mr G Angiletta: T52.23.

39. The plaintiff was required to do that work without manual or mechanical assistance. He was required to pick up large sheets of plywood which had become soaked with water due to exposure to rainwater, which increased its weight. The estimate of the wet weight of the plywood sheeting varied from 20 to 40kgs: T63.22; T87.10; T87.31.

40. At the time of the accident, whilst standing on a scaffolding plank in a confined area, he lifted the plywood sheet in question to his chest, but in doing so, when it made contact with his chest, he lost his balance. He then slipped and fell to his left, hitting his head, his backside, his left leg and left knee, whilst he was still inside the elevator shaft enclosure: T18.35 – T18.46.

41. At that time, the plaintiff had been standing in a precarious position on a plank located on some metal scaffolding that was between about a metre to two metres above the ground, and otherwise described as being at floor level: T19.12. He was working in poor light conditions. He had asked Mr G Angiletta to bring him some lighting which did not immediately occur: T19.22. He was required to undertake those tasks without other manual or mechanical assistance: T19.45; T53.11. There was other evidence of a shortage of manpower on the site at that time.

(4) Injuries and initial treatment

42. At the time of the described incident, the plaintiff said that he felt a lot of pain and swelling in his left leg and knee: T19.49. No-one witnessed the incident so there was a delay before someone came to his assistance: T20.28.

43. The defendant claimed that the plaintiff had not been working on the site on the day in question, and challenged the plaintiff’s version of the events. I do not accept that challenge. The documents, when read as a whole, do not support that challenge. I accept the plaintiff’s evidence as to the circumstances of his injury and the tasks he had been performing when he was injured.

44. The plaintiff said, somewhat emotively, that he could have died at that time because no-one had come to his assistance: T20.27. He said that eventually he managed to go to the first aid shed at the site, but no-one was there. He obtained some painkilling medication and kept on working until about 1.00pm in the afternoon that day: T20.32. He said that he did so, in pain, because he did not want to lose his job: T21.26.

45. On the day in question the plaintiff tried to report the accident to someone in charge but the person who normally took such reports was not on site because he was apparently at an off-site meeting: T20.38 – T20.43. Instead, he spoke to a representative of the head contractor who, in the plaintiff’s opinion, did not pay too much attention to the plaintiff’s report: T21.5. However, the plaintiff said that person did take some notes of that discussion: T22.37 – T22.39.

46. Later that day, the plaintiff said that when Mr G Angiletta saw him limping on the site, Mr G Angiletta dismissed him and told him to take his tools and leave the site: T21.35. The plaintiff then collected his tools, and left the site and did not return: T22.6.

47. The plaintiff later saw his general practitioner: T22.47. He was then referred to Dr Davé. He did so after first seeing a Dr Meagher, who had declined to issue him with a WorkCover certificate: T23.

48. The plaintiff stated that before the subject injury, in his own assessment he was 100 per cent fit for his work: T24.33. He said he felt very strong and that he had intended to continue working for as long as his body kept on working because he was sending money to Chile to support his daughter: T25.15 – T25.33.

(5) Subsequent medical and allied reviews

49. Following his injury, and the initial treatment, the plaintiff underwent a number of medical and allied reviews, in the following chronological sequence:

1. On 13 June 2015, at the request of his solicitor, the plaintiff was examined by Ms Caroline Grinter, an occupational therapist: Exhibit “B”, Tab 4, pp 14 – 19. The purpose of that assessment was to seek to define the plaintiff’s need for injury-related domestic assistance. That matter will be taken up in the analysis of the claim for damages for that head of damage;

2. On 29 February 2016, at the request of his solicitor, the plaintiff was examined by Dr Peter Conrad, a consultant surgeon, in relation to the subject accident: Exhibit “B”, Tab 1, pp 1 – 4;

3. On 5 December 2016, the plaintiff was re-examined by Dr Conrad: Exhibit “B”, Tab 2, pp 5 – 10. He noted the plaintiff’s 1995 injury which was not known to him when he previously examined the plaintiff. Dr Conrad stated his view (at pp 7 – 8) that at age 67, the plaintiff would not be able to re-enter the workforce and that his prognosis for recovery was poor;

4. On 23 January 2017, at the request of the solicitor for the plaintiff, Dr Conrad prepared a supplementary commentary on some identified medical material he was asked to review: Exhibit “B”, Tab 3, pp 11 – 13. He stated (at p 12), “In the accident of 29 May 2015, Mr Castillo re-injured the left knee, which had been injured in the past”. His earlier expressed view on the plaintiff’s work capability remained unchanged;

5. On 17 February 2017, Dr Davé, the plaintiff’s treating orthopaedic surgeon, prepared a commentary on some reports he had written about the plaintiff in 1995 and 2015: Exhibit “B”, Tab 4, pp 20 – 21. Dr Davé apparently conducted a paper review without a further examination of the plaintiff at this point. He reviewed the previous history, reports and scan results. He noted the plaintiff had in fact returned to work on 8 September 1995, but with ongoing knee symptoms. Dr Davé noted that the plaintiff had also sustained a further work injury on 6 September 2004 resulting in shoulder and right knee problems. He considered (at p 21), that the plaintiff’s prognosis was guarded because the plaintiff was likely to develop ongoing arthritic pains and may go on to require a (left) knee replacement. Significantly, Dr Davé stated (at p 21), that the plaintiff’s left knee injury on 29 May 2015 was a new injury rather than one involving ongoing problems from the previous injury in 1995;

6. On 22 January 2018, the plaintiff was re-examined by Dr Conrad: Exhibit “B”, Tab 5, pp 22 – 27. Dr Conrad considered (at p 24), that the plaintiff had sustained an internal derangement of his left knee in the accident on 29 May 2015, and that this was aggravated by a further twisting injury on 19 July 2017 when the knee gave way at work, the combined effect of which gave rise to a continuing incapacity to work;

7. On 3 April 2018, at the request of the solicitor for the defendant, the plaintiff was examined by Dr Seamus Dalton, a consultant in rehabilitation medicine: Exhibit “1”, Tab 1, pp 1 – 16. Dr Dalton considered (at p 11), that there was no evidence to support the claim that the plaintiff sustained an injury to his back, right buttock, right thigh or both hips in the subject accident. He stated that the plaintiff most likely suffered a soft tissue injury to his left leg and knee, which did not result in a tear of the posterior horn of the medial meniscus, and was unlikely to have resulted in any material exacerbation or acceleration of the underlying osteoarthritis. Dr Dalton stated (at p 12), that the plaintiff had most likely recovered from that soft tissue injury and that his current problems, including his inability to work, are due to osteoarthritis in the left knee and longstanding lumbar problems, very poor flexibility, and probable osteoarthritis affecting both hips and his right shoulder;

8. On 1 May 2018, at the request of the solicitor for the plaintiff, Dr Conrad prepared an updated commentary: Exhibit “B”, Tab 6, pp 28 – 30. In that commentary, Dr Conrad stated his opinion (at p 28), that the plaintiff’s incapacity for work continues, and this has resulted from the injuries he sustained on 29 May 2015 and 19 July 2017. He set out his reasons for that view, namely that the effects of the 29 May 2015 injury had caused the plaintiff’s left knee to give way on 19 July 2017 in a further twisting injury;

9. On 1 May 2018, at the request of the solicitor for the defendant, the plaintiff underwent a vocational capacity assessment that was carried out by Professor Robert Pryor, a vocational psychologist, and Ms Christine Leaver, a physiotherapist: Exhibit “1”, Tab 2, pp 17 – 48. Their report concluded (at pp 40 – 41), that the plaintiff’s language problems made the test scores difficult to interpret despite the assistance of a Spanish interpreter. The report concluded that there were a number of alternative avenues of light employment open for the plaintiff to consider. In my view, those recommendations, such as assembly line work, ticket collector, service station console operator, traffic controller, crossing supervisor and caretaker, were theoretical and were impractical, given the plaintiff’s physical and language limitations;

10. On 19 June 2018, at the request of the solicitor for the plaintiff, Dr Conrad prepared a commentary on the opinions within the report of Dr Dalton as well as the opinions within the Vocational Capacity Report: Exhibit “B”, Tab 7, pp 31 – 35. Dr Conrad took issue with those reports and he explained his view in that regard in his oral evidence.

(6) Dr Conrad’s oral evidence

50. The defendant required the attendance of Dr Conrad for cross-examination on his reports: T92 – T103.

51. In his evidence in chief, Dr Conrad was taken to the final paragraph of Dr Davé’s report dated 17 February 2017, which was in the following terms:

“I would consider the left knee injury 29 May 2015 to be a new injury rather than ongoing problems from an old injury as at the time of arthroscopy in 1995 there were no arthritic changes within the knee. The knee had recovered enough for Mr Castillo to return back to work which he did for quite a few years. Also, he had a specific injury to the left knee on 29 May 2015, from which he dates his ongoing symptoms to the left knee.”

[T92.41 – T92.47]

52. Dr Conrad observed that Dr Davé’s stated view, which was unchallenged, also supported his own view that the plaintiff’s 29 May 2015 left knee injury was a fresh injury unrelated to any prior injury to that knee.

53. Dr Conrad went on to explain that the 29 September 2015 MRI scan of the plaintiff’s left knee not only showed an area of full thickness wear and tear, but it also showed a complex tear of the medial meniscus in that knee, which was in the opinion of Dr Conrad, clearly a traumatic event, and inculpated the 29 May 2015 incident as the cause: T95.39 – T96.13.

54. On that basis, Dr Conrad disagreed with Dr Dalton’s opinion that the plaintiff’s left knee problems were due to osteoarthritis. Dr Conrad said that Dr Dalton’s commentary had ignored the fact that the MRI scan showed a complex tear of the posterior horn and body of the medial meniscus: T96.30.

55. Dr Conrad expressed his total disagreement with Dr Dalton’s view that the plaintiff’s left knee problems were “almost certainly degenerative”, and were instead due to trauma: T96.35 – T96.40. He developed his reasoning for that view by pointing out that the plaintiff’s “Parrot beak tear of the medial meniscus” is quite a small tear, which was quite different to the much more complex tear to the posterior horn of the left medial meniscus, which occurred after the plaintiff’s 2015 accident and was in a different location: T97.18 – T97.36.

56. Dr Conrad went on to explain that his view was based on the evidence of a focal meniscal defect described by Dr Sachinwalla in his imaging report dated 4 November 1997, describing it as an oblique tear comprising a 1mm – 2mm peripheral tear or crack in the cartilage, not a displaced tear as is evident in the more complex posterior horn tear that was seen post-accident, and which was quite a different injury: T98.23 – T98.40; T102.5; Exhibit “1”, Tab 8, pp 56 – 57.

57. Dr Conrad acknowledged that the 1997 imaging of the plaintiff’s left knee showed probable age-related wear and tear in that knee: T98.46. He disagreed that this was representative of arthritis because radiological findings, without symptoms, do not amount to arthritis: T99.23.

58. Dr Conrad went on to comment that it was significant that despite the pre-accident imaging changes seen in the plaintiff’s left knee, he continued to work until the time of the subject May 2015 accident. He stated that the MRI scan provided objective evidence of a complex tear which was a much more painful condition than any pre-accident arthritic pain the plaintiff might have had in his left knee before his 29 May 2015 injury: T102.36 – T102.46.

59. Dr Conrad acknowledged that in expressing his opinion that the plaintiff would not be able to re-enter the workforce, his pre-2015 injuries would be a contributing factor to that circumstance: T103.35 – T103.40. There was no re-examination of Dr Conrad to seek to explore or to clarify that evidence.

(7) Resolution of issues raised on the medical evidence

60. The task of achieving a reasoned reconciliation or determination of contested medical issues is a more burdensome task than need be the case where one of the experts opposing expert opinion givers was not called to give oral evidence or have their contested opinions tested by cross-examination. The conflicting opinions must nevertheless be grappled with and resolved according to whether the reasoning of the respective expert is acceptable and as to whether the opinions in question provide a rational basis for preferring the opinion of one expert over another: UCPR r 31.27(1)(c); Sch 7, cl 5(1)(c).

61. In this case there was a potential problem for analysis concerning the evidence of Dr Conrad because he had prepared a report dated 29 February 2016 for the plaintiff’s solicitor and that report was not tendered. This was in circumstances where the uncontroversial requirement is that all of the opinions of an expert should be available for examination. That said, the defendant raised no objections on that account.

62. As it transpired, the absence of Dr Conrad’s earlier report dated 29 February 2016 was adequately explained in this case, as is evident from the content of his report dated 5 December 2016, where he identified his earlier opinion, and then qualified and altered that opinion after identifying it, and taking further relevant information into account: T94.26.

63. In the absence of oral evidence from Dr Dalton that engaged with Dr Conrad’s views as cited above, where Dr Conrad’s views were adequately reasoned as is required by UCPR r 31.27(1)(c); Sch 7, cl 5(1)(c), notwithstanding that Dr Dalton was not required for cross-examination, I prefer Dr Conrad’s reasoned opinions to those of Dr Dalton, because Dr Dalton’s opinions were not as developed as the reasoning process that was undertaken by Dr Conrad.

(8) Disabilities that remain

64. The plaintiff continues to experience disabilities from the subject injury. He has continuing pain in his left knee. Prolonged walking is painful for him. He spends most of his time at home lying down. He continues to pursue hydrotherapy for his left knee. He cannot afford the recommended surgical treatment: T28.1 – T28.10. Psychologically, he has not reacted well to his disabilities: T51.50. He has never recovered from that injury: T66.44.

65. I accept the unchallenged medical summaries of the plaintiff’s histories which include continuing left knee and thigh pain, with restricted flexion and extension movements, a limited standing and walking tolerance, difficulty negotiating stairs, difficulty squatting and lifting weights, swelling, a need to take painkilling medication daily, and a depressed and frustrated mood: Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25; s 60 of the Evidence Act 1995.

(9) Work effects

66. The plaintiff has not worked since the subject accident. To obtain damages for those circumstances, the plaintiff must prove that his inability to work is due to the effects of the accident: s 5D and s 5E of the CL Act.

67. Dr Conrad stated that there were several contributing causes to the plaintiff’s inability to work, including substantial contributory pre-accident causes. That evidence was not taken up by way of further exploration or analysis: T103.36.

68. In view of the absence of medical evidence called on behalf of the plaintiff to seek to disentangle the extent to which those respective contributing causes have operated to produce the plaintiff’s symptoms, where the plaintiff carries that onus in this case, I am unable to conclude that the plaintiff’s inability to work has been entirely or relevantly caused by his injury on 29 May 2015: Azar v Kathirgamalingan [2012] NSWCA 429; (2012) 62 MVR 462, at [134]; Glen v Sullivan [2015] NSWCA 191, at [43] – [47]; Alcan Gove Pty Ltd v Zabic [2015] HCA 33; (2015) 257 CLR 1, at [44]; Mt Isa Mines Ltd v Pusey [1970] HCA 60; (1970) 125 CLR 383, at [18]; Watts v Rake [1960] HCA 58; (1960) 108 CLR 158, at [8]; Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164, at [4]; s 5D and s 5E of the CL Act.

69. Notwithstanding that view, the fact remains that the plaintiff was working at the time of his accident. By itself, that fact is a relevant and compelling circumstance. That said, in view of Dr Conrad’s evidence as to the existence of other contributing causes, the fact the plaintiff was working does not necessarily suggest an ongoing earning capacity that would have continued unimpeded but for the subject accident: s 5D(1) and s 5D(2) of the CL Act.

66. In my assessment, the fact that the plaintiff was working at the time of his injury, in casual employment, and for sound reasons, namely for support of his young daughter in Chile, are factors that must be accommodated in assessing appropriate buffer amounts for post and future economic loss.

(10) Domestic effects

71. The plaintiff claims that his ability to perform necessary commonplace domestic tasks has been adversely affected by the subject accident. That claim, and his evidence, along with that of Ms Grinter, will be analysed in connection with the assessment of the plaintiff’s entitlement to damages on that account.

(11) Mitigation

72. The plaintiff was under a common law duty to mitigate his damages. In this case, unlike a case for work injury damages brought against an employer, to which s 151L of the WC Act 1987 applies, the plaintiff does not bear the onus of showing he has taken reasonable steps to mitigate his loss. The defendant carries that onus in this case. It has not been satisfactorily demonstrated in the evidence that there was such a failure on the plaintiff’s part. The plaintiff’s inability to pay for the operative treatment that had been recommended to him should not be seen to be a failure to mitigate on his part.

(12) Plaintiff’s most likely pre-accident circumstances

73. In assessing the plaintiff’s claim for future economic loss it is necessary to identify what the plaintiff’s most likely circumstances would have been if the subject accident had not occurred: s 13 of the CL Act.

74. In this case, the plaintiff’s prior injury and underlying degenerative left knee conditions, and his pre-accident history of surgery to his neck, back and left knee, together with his age and limited employment options, including his casual employment status, all operated as potential contributing causes to an impairment of his earning capacity. He was vulnerable to being limited in his ability to exercise an earning capacity irrespective of the occurrence of the subject accident.

75. In those circumstances, despite the plaintiff’s stated intentions as to his continual working, and his sound motivation for continuing to work, I consider it was most unlikely the plaintiff would have been able to retain full time employment for anything other than in casual short term work, and not for the years until age 72 that have been claimed on his behalf. In those circumstances, I propose to award the plaintiff compensation for past and future economic loss by way of buffer amounts: State of NSW v Moss [2000] NSWCA 133, (2000) 54 NSWLR 536; Penrith City Council v Parks [2004] NSWCA 201.

76. I now turn to my consideration of the issues calling for decision.

Issue 1 – Risk of harm and duty of care

77. The plaintiff relied upon two reports from Mr Ian Burn, a consulting engineer. Those reports were respectively dated 23 December 2015 and 21 January 2016: Exhibit “B”, Tabs 9 & 10, pp 36 – 56.

78. In essence, Mr Burn was of the opinion that in the plaintiff’s assigned work task, manipulating and edge fixing heavy formwork sheets, unassisted, whilst standing on a scaffolding plank, raised an obvious risk of the plywood sheeting coming free before being fixed into position, thereby risking injuring the worker attempting that task: Exhibit “B”, Tab 8, pp 39 – 41. This raised a relevant risk of harm to the plaintiff and this engaged a duty of care by those responsible for assigning work tasks to the plaintiff and supervising him.

Issue 2 – Duty of care and breach

79. As the occupier of the site where the plaintiff was required to work, the defendant owed the plaintiff a duty to take reasonable care for his safety. That duty extended to ensuring the plaintiff was provided with assistance when manipulating heavy objects and that he be provided with an adequately illuminated environment in which he could carry out his assigned tasks, including the provision of appropriate supervision for the assigned task. The plaintiff’s claim that the defendant was negligent in its occupation and management of the site must be evaluated in that context.

80. The plaintiff pleaded some 18 separate particulars of alleged negligence against the defendant, as follows:

1. Allowing the plaintiff to commence the task allocated to him inside the lift shaft area without providing adequate lighting and an adequate lighting extension cord inside the area to provide a safe working environment.

2. Failing to recognise that the task allocated to the plaintiff inside the lift shaft of affixing form ply of the dimensions particularised above, both at ground level and above ground level, was a joint manual handling task requiring at least two workers.

3. Failing to provide the plaintiff, before allocating him the task of securing the sheets of form ply to the lift shaft wall, with an assistant form worker to assist him with lifting the sheets of form ply and to hold the sheets in position until the plaintiff had secured the sheets, using a hand drill tool to apply screws to the sheets, and allowing the plaintiff to work in such circumstances.

4. Failing to heed the plaintiff's request before he commenced the task allocated to him to provide him with both adequate lighting and with an assistant form worker to carry out the allocated task.

5. Failing to heed the plaintiff’s repeated request made throughout his performance of the allocated task of the need of another form worker to assist him in the lifting and securing of the sheets of form ply, and allowing the plaintiff to work in such circumstances.

6. Failing to provide the plaintiff with a safe place to carry out the work task allocated to him and allowing him to work in an unsafe place of work.

7. Failing to provide the plaintiff with a safe system of carrying out the work task allocated to him and allowing him to work with an unsafe system of work.

8. Failing to warn the plaintiff of the hazard and risk of injury to which he was exposed by failing to provide him with adequate lighting during the whole of the time he was performing the allocated task of lifting and securing the sheets of form ply.

9. Failing to warn the plaintiff of the hazard and risk of injury to which he was exposed by failing to provide him with an additional form worker to assist him in the allocated task of lifting and securing the sheets of form ply.

10. Failing to arrange with the head contractor a delay in the concrete pour due the next day associated with the lift shaft until adequate assistance could be provided to the plaintiff to allow for safe lifting and securing of the form ply sheets.

11. Failing to warn the plaintiff of the hazard and risk of injury to which he was exposed in working at a height above ground level on scaffolding in circumstances where a sheet of form ply could fall from a height above him and strike him and cause him to fall from a height from the scaffold platform to ground level.

12. Failing, in circumstances where the plaintiff was allocated a task without either adequate lighting and or another form worker to assist him with lifting and holding the sheets of form ply in place while he affixed them by screws to the wall, to provide the plaintiff with adequate rest breaks to mitigate the risk of fatigue and injury.

13. Failing at all to adequately supervise the plaintiff in the task to ensure the plaintiff was provided with adequate lighting and another form worker to assist him in the task when it became apparent that the task required additional lighting and an assistant form worker.

14. Failing to implement and or carry out an appropriate risk assessment or any risk assessment so as to identify hazards and risks of injury associated with the task allocated to the plaintiff, and to prioritize the risks of injury, eliminate the risks and or to control the risk of injury.

15. Failing to have in place an appropriate risk assessment process so as to enable the identification of hazards and risks of injury associated with the manual handling task allocated to the plaintiff.

16. Failing to have in place or to carry out a risk assessment review process so as to identify the hazards and risk of injury associated with the task allocated to the plaintiff.

17. Failing to follow best industry practice of having in place a risk assessment and risk assessment review process so as to identify the hazards and risk of injury associated with the task allocated to the plaintiff.

18. Failing to heed the recommendations both express and implied in the Work Health and Safety Act (NSW) 2011 to have in place risk assessment processes and risk assessment review processes so as identify the hazard and risk of injury to which the plaintiff was exposed by the task allocated to him as particularised above, and to prioritize the risk of injury, eliminate and or control the risk of injury.

81. In my view, for analysis purposes, those particulars of negligence may be conveniently summarised into the formulation of successive failures to provide the plaintiff with manual assistance with the awkward task required of him, failure to provide adequate lighting where he was required to work, and failure to provide proper site supervision of the progress of the works assigned to him so as to reduce the risk of injury to him. The question of whether or not the defendant had been negligent in those respects must be determined according to the provisions of s 5B and s 5C of the CL Act.

82. Section 5B of the CL Act provides:

5B General principles

(1) A person is not negligent in failing to take precautions against a risk of harm unless:

(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and

(b) the risk was not insignificant, and

(c) in the circumstances, a reasonable person in the person’s position would have taken those precautions.

(2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things):

(a) the probability that the harm would occur if care were not taken,

(b) the likely seriousness of the harm,

(c) the burden of taking precautions to avoid the risk of harm,

(d) the social utility of the activity that creates the risk of harm.

83. Section 5C of the CL Act provides:

5C Other principles

In proceedings relating to liability for negligence:

(a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and

(b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and

(c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk.

Requirements of s 5B(1) of the CL Act

84. To establish negligence on the part of the defendant the plaintiff must satisfy the three preconditions set by s 5B(1)(a), (b) and (c) of the CL Act.

Whether the risk was foreseeable: s 5B(1)(a) of the CL Act

85. The plaintiff was required to lift, awkwardly lift and manipulate heavy formwork plywood without assistance. I accept Mr Burn’s unchallenged opinion that such work should be considered hazardous: Exhibit “A”, Tab 9, p 41. It follows that the risk of injury to the plaintiff in that work was inherent and foreseeable: s 5B(1)(a) of the CL Act.

Whether the risk was not insignificant: s 5B(1)(b) of the CL Act

86. I accept the unchallenged opinion of Mr Burn that the manhandling of heavy formwork plywood sheets without assistance and attempting to fix such a sheet into position by lifting it from foot to chest level raised a “not insignificant” risk of injury: s 5B(1)(b) of the CL Act; Exhibit “B”, Tab 9, p 41.

Precautions against risk: s 5B(1)(c) of the CL Act

87. The plaintiff asked for another worker to be assigned to assist him with the task he was allocated to perform by himself. I consider that a reasonable person in the position of the defendant would have taken that precaution against injury without being asked to do so. I also find that the failure to comply with the plaintiff’s request for assistance and illumination was unreasonable in the circumstances: s 5B(1)(c) of the CL Act.

Requirements of s 5B(2) of the CL Act

88. Before making a finding of negligence, I must consider the factors required by s 5B(2) of the CL Act.

Probability of harm if care was not taken: s 5B(2)(a) of the CL Act

89. In circumstances where the work assigned to the plaintiff was normally done by two workers but left to him to carry out alone, there was a high probability that the plaintiff would sustain injury if he was not provided with such assistance: s 5B(2)(a) of the CL Act.

Likely seriousness of the harm: s 5B(2)(b) of the CL Act

90. I consider that if the defendant did not make arrangements to assist the plaintiff to manipulate plywood sheeting then there was a real likelihood of the plaintiff sustaining serious bodily injury: s 5B(2)(b) of the CL Act.

Burden of taking precautions: s 5B(2)(c) of the CL Act

91. The likely burden on the defendant of taking the precaution of assigning additional labour to assist the plaintiff to manipulate and fix in place the heavy plywood sheet was, in the context of having formworkers on a building site, relatively insignificant, if not negligible: s 5B(2)(c) of the CL Act.

Social utility of the activity: s 5B(2)(d) of the CL Act

92. The question of social utility does not relevantly arise. There can be no social utility in conducting construction work in an unsafe manner or environment.

Other principles to be considered: s 5C of the CL Act

93. To sustain a finding of negligence, the factors required by s 5C of the CL Act must also be considered.

94. The burden of taking precautions against the risk of the plaintiff being unable to maintain the heavy sheet of formwork in position was unique to the defendant’s premises: s 5C(a) of the CL Act. There was a different or alternative course open to be taken by the defendant, namely to take reasonable care to ensure appropriate assistance including that an adequate foothold and lighting was available to the plaintiff: s 5C(b) of the CL Act. There was no other practical course open to the defendant consistent with reasonable care for addressing the risk of injury: s 5C(c) of the CL Act.

Conclusion as to breach of duty of care and negligence

95. The plaintiff has satisfied the requirements of s 5B and s 5C of the CL Act. The defendant failed to allocate sufficient assistance to the plaintiff to carry out his allocated task, which the plaintiff was required to fulfil in awkward conditions in circumstances of inadequate illumination, all of which materially contributed to the plaintiff’s injury. I accept the unchallenged opinion of Mr Burn in that regard: Exhibit “B”, Tab 9, p 50.

Issue 3 – Contributory negligence

96. For the defendant to sustain an allegation that the plaintiff was contributorily negligent, it must satisfy the preliminary requirements of s 5B, s 5C, s 5R and s 5S of the CL Act, as well as the causation requirements of s 5D of the CL Act.

97. The defendant relied upon the following pleaded particulars of alleged contributory negligence on the plaintiff’s part:

1. failing to have sufficient regard for his own safety;

2. failing to observe his surroundings; and

3. failing to exercise the necessary degree of caution in the circumstances.

98. Those formulaic general allegations remained non-specific and were not supported by expert evidence.

99. Section 5R of the CL Act provides the standard for establishing contributory negligence, as follows:

5R Standard of contributory negligence

(1) The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm.

(2) For that purpose:

(a) the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and

(b) the matter is to be determined on the basis of what that person knew or ought to have known at the time.

100. Section 5S of the CL Act provides a basis for a claim such as the plaintiff’s to be defeated by a finding of contributory negligence. I do not accept that such a result arises on the facts of this case.

101. In the plaintiff’s situation, he had two principal options. The first option was to recognise that without the benefit of the assistance he had requested, he was at risk of sustaining an injury, and he could have declined to perform the tasks allocated to him by the defendant. That was not an option in his situation. He said he needed the job.

102. The second option was to use his best endeavours to oblige the defendant’s request in circumstances where the defendant controlled the nature of the work tasks and the plaintiff was the labourer employed to carry out that task. The amorphous allegations of contributory negligence raised by the defendant in this case do not reasonably sustain a finding of contributory negligence. At best, if the plaintiff was negligent, which I do not accept, it was a casual act in compliance with a work directive in a flawed work system not of his making and not under his control.

103. I therefore reject the claim that the plaintiff was contributorily negligent in the circumstances of his injury. Accordingly, his damages will be assessed without any reduction for contributory negligence.

Issue 4 - Causation

104. The question of causation of the plaintiff’s injury and losses must be determined according to s 5D of the CL Act, which provides as follows:

5D General principles

(1) A determination that negligence caused particular harm comprises the following elements:

(a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and

(b) that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (scope of liability).

(2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.

(3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent:

(a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and

(b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.

(4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.

105. I find that but for the negligence of the defendant in failing to provide the plaintiff with assistance and a safe position, including an adequately illuminated position from which to perform his assigned work task, the plaintiff would not have suffered the fall and the debilitating injury to his left knee: s 5D(1)(a) of the CL Act; Strong v Woolworths Ltd [2012] HCA 5, (2012) 246 CLR 182.

106. In my view, in circumstances where the defendant had engaged labour for building work in order to seek a commercial advantage, it is appropriate that the scope of the defendant’s liability extends to the circumstances of the plaintiff’s injury: s 5D(1)(b) of the CL Act. No exceptional circumstances arise on the evidence in this case: s 5D(4) of the CL Act.

Issue 5 – Consideration of s 151Z(2) of the WC Act

107. A claim by a defendant notionally invoking s 151Z(2) of the WC Act against an employer, as in the present case, must be determined according to Pt 1A of the CL Act, particularly according to the requirements of s 5B of the CL Act: Jurox Pty Ltd v Fullick [2016] NSWCA 180, at [88] to [94].

108. Section 151Z(2) of the WC Act provides:

151Z Recovery against both employer and stranger

(1) …

(2) If, in respect of an injury to a worker for which compensation is payable under this Act:

(a) the worker takes or is entitled to take proceedings independently of this Act to recover damages from a person other than the worker’s employer, and

(b) the worker also takes or is entitled to take proceedings independently of this Act to recover damages from that employer,

the following provisions have effect:

(c) the damages that may be recovered from the person by the worker in proceedings referred to in paragraph (a) are to be reduced by the amount by which the contribution which the person would (but for this Part) be entitled to recover from the employer as a joint tortfeasor or otherwise exceeds the amount of the contribution recoverable,

(d) the amount of the contribution that the person is entitled to recover from the employer as a joint tortfeasor or otherwise is to be determined as if the whole of the damages were assessed in accordance with provisions of Division 3 as to the award of damages,

(e) if the worker does not take proceedings against that employer or does not accept satisfaction of the judgment against that employer, subsection (1) applies as if the worker had not been entitled to recover damages from that employer, except that:

(i) if the compensation paid by that employer exceeds the amount of the contribution that could be recovered from that employer as a joint tortfeasor or otherwise—the indemnity referred to in subsection (1) (d) is for the amount of the excess only, and

(ii) if the compensation paid by that employer does not exceed the amount of that contribution—subsection (1) (d) does not apply and the employer has, to the extent of the compensation so paid, a defence to an action for such a contribution.

109. The focus for the determination of whether the plaintiff’s damages should be reduced on account of alleged negligence on the part of his employer raises questions of control of the plaintiff’s labour and the supervision of his arranged work tasks.

110. In this case, the plaintiff underwent a site safety induction. Following that induction, the plaintiff was assigned to carry out casual work under the supervision of the defendant’s employees, notably, Mr G Angiletta who whilst not present when the plaintiff was injured, had required the plaintiff to undertake the remedial formwork which led to his injury. This was in circumstances where he was not under direct supervision at the time.

111. In undertaking this aspect of the analysis I have put aside and not considered the factual matters raised in Mr Burn’s report (at Exhibit “B”, Tab 8, p 49), relating to a shortage of workers on the site due to an industrial issue in which a number of workers on the site had resigned the day before the plaintiff’s injury. That matter remained unexplored and it therefore does not form a sufficiently reliable basis upon which to make conclusions as to safety or a lack of safety on the site.

112. The question must be asked as to what the plaintiff’s employer, as a labour hire company, could have reasonably done as a precaution against injury other than to provide the plaintiff with a safety induction. This is particularly so where the plaintiff, as a formworker, was to carry out semi-skilled work such that it was the requirement of the defendant, and not the employer, who devised the work tasks and undertook the responsibility to supervise the plaintiff in the performance of those tasks. There is no evidence that the plaintiff’s employer had special supervisory knowledge or skill in formwork.

113. For the defendant to sustain a claim for a breach of the employer’s duty of care, evidence would have been required to show that the employer was aware of the risks to the plaintiff in the work the defendant assigned to him. In this case, I find that the defendant has failed to satisfy those requirements. The dynamic nature of those risks was a matter within the particular knowledge of the defendant, and this arose on an ad hoc basis. I therefore reject the defence claimed pursuant to s 151Z(2) of the WC Act.

Issue 6 – Assessment of damages

114. In the paragraphs that follow, after identifying some actuarial considerations for assessment, I set out my assessment of the plaintiff’s entitlement to damages.

Actuarial factors

115. At the age of 70 years, the plaintiff has an estimated statistical median life span of a remaining 15 years, for which the 5 per cent projection multiplier of 550.0 applies.

Non-economic loss

116. The plaintiff submitted that his damages for non-economic loss pursuant to s 16 of the CL Act should be assessed at 27 per cent of a most extreme case. In contrast, the defendant submitted that such damages should be assessed at 17 per cent.

117. In my view, having regard to the plaintiff’s disabilities as outlined at paragraph [64] above, I consider the defendant’s assessment to represent an inadequate reflection of the way in which the accident has adversely affected the plaintiff’s ability to enjoy the amenity of his life. In contrast, I consider the plaintiff’s submission on this head of damage to be apt to the circumstances.

118. I take that view because, between the ages of 67 and 70, the plaintiff was, despite his earlier history of injury, working and enjoying the amenity of life relatively unrestricted by his earlier history of injury and operative treatment. The subject accident has now reduced his functioning, and his ability to provide economic assistance to his child living overseas, and he now must endure ongoing pain, the prospect of knee replacement surgery, and he has an adverse psychological outlook. Those matters justify acceptance of the plaintiff’s submission concerning the assessment of damages for non-economic loss.

119. I therefore assess the plaintiff’s damages for non-economic loss at 27 per cent of a most extreme case, which equates to the amount of $63,500.

Past economic loss

120. The plaintiff submitted that his damages for past economic loss should be assessed at the rate of $800 per week net for 171 weeks in the amount of $136,800: MFI “9”.

121. In contrast, the defendant submitted that the plaintiff’s claim for past economic loss was not supported by the evidence: MFI “10”, par 53 – par 71. In making that submission, the defendant pointed to the relatively short period of the plaintiff’s pre-accident employment at the defendant’s site, his prolonged absence from the workforce whilst he was caring for an elderly person with disabilities, an activity for which he was in receipt of a carer’s pension, his work on the defendant’s site was of a non-permanent and casual nature, and the argued improbability of the plaintiff, at 67, with his past history of injury, continuing to maintain heavy work until the age of 72 years, noting that he presently received an aged pension.

122. The defendant made no alternative monetary submission to the plaintiff’s submission of $136,800.

123. The defendant’s submission has some superficial attraction but I do not accept it in its entirety because of two principal factors. First, the plaintiff was working despite his history of injury. Secondly, he was no longer tied to his role of carer for which he was receiving a carer’s allowance. Thirdly, he had a compelling motive to continue to earn money for so long as he was able to do so in order to remit funds to Chile to support his daughter. Fourthly, the aged pension only followed after his post-accident inability to continue working.

124. Taking those factors into account, the defendant must take the plaintiff as he is found: Mt Isa Mines Ltd v Pusey [1970] HCA 60; (1970) 125 CLR 383. That said, in light of his prior history of injury and his age, I consider it unlikely that but for his injury, the plaintiff would have continued working in steady but nevertheless heavy casual work on a continuous basis.

125. There are no bright lines in the evidence that assist to define the plaintiff’s past loss of earning capacity so as to enable a precise calculation of loss even though the plaintiff had an earning capacity which became impaired by the contributing effects of the accident. In those circumstances, I consider that a buffer amount should be assessed for past economic loss.

126. Consistent with my findings as identified at paragraph [123] above, I assess the plaintiff’s damages for past economic loss in the buffer amount of $40,000.

Fox v Wood

127. The amount of tax deducted from the plaintiff’s weekly workers’ compensation payments is $2703.20: MFI “9”. I therefore assess the plaintiff’s Fox v Wood damages in the amount of $2703.20.

Future economic loss

128. In my view similar considerations to those matters taken into account in respect of the claim for past economic loss also apply to the claim for future economic loss, but to a diminished extent.

129. I accept that at the plaintiff’s age, he may have been able to find occasional work within his abilities, including through a labour hire company. He had jet black hair and did not look as old as his age. He may have been occasionally selected for labouring work within his self-disclosed limitations.

130. Given the plaintiff had other significant contributing causes for his inability to work, the longer term prospects of him gaining and sustaining continuous work to age 72 must be seen to be in doubt. This calls for the award of a relatively modest cushion for future economic loss.

131. I therefore assess the plaintiff’s damages for future economic loss in the buffer amount of $15,000.

Past domestic assistance

132. The plaintiff has obtained some domestic assistance following the subject accident. His evidence on that topic was vague and limited: T29 – T30. It did not meet the assessment threshold criteria as required by s 15 of the CL Act. I therefore make no award of damages for past domestic assistance.

Future domestic assistance

133. The plaintiff makes a claim for future care or domestic assistance in the amount of $42,180. That sum was calculated on the basis of 2 hours per week at $38 per hour for 15 years, without discount.

134. That claim seems to be based on the analysis prepared by Ms Grinter dated 20 July 2016, and Dr Conrad’s report dated 22 January 2018 which suggests a need for the plaintiff to have assistance for the heavier aspects of housework: Exhibit “B”, Tab 6, pp 22 – 27.

135. Medical opinions of the kind cited in support of claims for domestic assistance must be shown to be suitably qualified: Sampco Pty Ltd v Wurth [2015] NSWCA 117, at [83]; [92]. Dr Conrad’s opinion in this case on the issue of the need for domestic assistance did not fulfil that requirement.

136. I do not regard Ms Grinter’s opinion as being relevantly supportive of this aspect of the plaintiff’s claim because of Dr Conrad’s evidence of the existence of other contributing causes of the plaintiff’s disability. The plaintiff carries the burden of proof on that matter and it has not been discharged on the evidence adduced: s 5D and s 5E of the CL Act.

137. I therefore make no award of damages for future domestic assistance.

Future treatment expenses

138. Dr Conrad has identified the possibility the plaintiff might need a left knee replacement at an estimated cost of $25,000 at some uncertain time in the future: Ex “B”, Tab 1, pp 7 – 8. Accordingly, Dr Conrad’s estimate must be significantly discounted on account of that uncertain possibility: Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638, at pp 642 – 643. I consider that an appropriately discounted amount is $10,000.

139. I therefore assess the plaintiff’s damages for future treatment expenses in the discounted buffer amount of $10,000.

Past out-of-pocket expenses

140. The plaintiff’s out-of-pocket expenses are assessed in the agreed amount of $7,311.86.

Summary of damages assessment

141. My assessment of the plaintiff’s damages is summarised as follows:

(a) Non-economic loss	$63,500
(b) Past economic loss	$40,000
(c) Future economic loss	$15,000
(d) Past domestic assistance	$Nil
(e) Future domestic assistance	$Nil
(f) Fox v Wood	$2,703.20
(g) Future out-of-pocket expenses	$10,000
(h) Past out-of-pocket expenses	$7,311.86
Total	$138,515.06

Disposition

142. The plaintiff has established his entitlement to a damages award for $138,515.06. The defendant has failed to establish the defence claimed pursuant to s 151Z of the Workers’ Compensation Act 1987.

Costs

143. As the plaintiff has succeeded in obtaining a judgment in his favour, he should have an order that the defendant should pay his costs of the proceedings on the ordinary basis unless a party can show an entitlement to some other costs order, for which there should be liberty to apply.

Orders

144. I make the following orders:

1. Verdict and judgment for the plaintiff in the amount of $138,515.06;

2. The exhibits are to be returned;

3. The defendant is to pay the plaintiff’s costs of the proceedings on the ordinary basis unless a party is able to demonstrate an entitlement for some other costs order;

4. Liberty to apply on 7 days notice if further or other orders are required, including as to costs.

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Decision last updated: 01 February 2019