Chandra v Bunnings Group Ltd - [2009] NSWDC 194

CITATION: Chandra v Bunnings Group Ltd [2009] NSWDC 194

HEARING DATE(S): 5, 6 May and 18 June 2009

JUDGMENT DATE:
6 November 2009

JURISDICTION: Civil

JUDGMENT OF: Levy SC DCJ

DECISION: 1. Verdict for the plaintiff in the sum of $402,624.
2. Defendant to pay the plaintiff’s costs.

CATCHWORDS: TORTS – negligence – occupier’s liability – slip and fall – plaintiff an employed delivery driver injured at premises occupied by defendant – plaintiff slipped whilst walking over submerged and concealed forklift tines covered by pooled water on the floor of a flooded warehouse access way to the car park – liability considerations – whether occupier negligent – whether “obvious risk” within meaning of s 5F of Civil Liability Act 2002 - PRACTICE AND PROCEDURE – adjournment – refusal of defendant’s application for an adjournment for purpose of obtaining a medical examination of plaintiff – consideration of mandatory requirements of s 56 of Civil Procedure Act 2002 - DAMAGES – assessment of multiple heads of damage under Civil Liability Act 2002

LEGISLATION CITED: Civil Liability Act 2002

CASES CITED: Angel v Hawkesbury City Council [2008] NSWCA 130
Dennis v Australian Broadcasting Corporation [2008] NSWCA 37
Presidential Security Services Pty Ltd v Brilley [2008] NSWCA 204
State of Queensland v JL Holdings Pty Ltd [1997] HCA; (1997) 189 CLR 146

PARTIES: Joseph Chandra (Plaintiff)
Bunnings Group Ltd (Defendant)

FILE NUMBER(S): 3844 of 2008

COUNSEL: Mr R Goodridge (Plaintiff)
Mr N Polin (Defendant)

SOLICITORS: Firths – The Compensation Lawyers (Plaintiff)
Wotton + Kearney (Defendant)

JUDGMENT

A. INTRODUCTION

Nature of case

1. The plaintiff claims damages for negligence in respect of injuries he received in a slip and fall incident that occurred at about 1.00pm on Monday 5 June 2006 within premises occupied by the defendant, the Bunnings Group Ltd. At the time the premises were flooded due to an accumulation of pooled rainwater which had obscured the submerged tines of the defendant’s forklift truck that had been parked behind a pillar within the premises so that it was concealed from the plaintiff’s view. The plaintiff was an employee of his own company that was a contractor undertaking deliveries of items of hardware for customers of the defendant. The plaintiff was otherwise familiar with the premises.

Issues to be determined on the question of liability

2. The following liability issues arose for determination:

Issue 1

Issue 2

Issue 3

obvious risk

Civil Liability Act

Issue 4

Worker’s Compensation Act

Issue 5

Credit issues

3. The plaintiff was cross-examined as to the circumstances of his injury however the defendant called no oral evidence to contradict the plaintiff’s version of the events. The plaintiff gave his evidence clearly with quick and accented speech. That said, I do not make any demeanour based credit findings. In my view the plaintiff gave a credible account of the circumstances of his injury. The account he gave was not glaringly improbable. Although he was also cross-examined on the content of statements he had made, I accept that the plaintiff had reading and writing difficulties such that the statements in question may not have been entirely in his words. Nevertheless, in my view, those statements really only concerned the allegations of contributory negligence and do not contradict the evidence the plaintiff gave concerning the manner in which he slipped, fell and sustained his injury. I accept the plaintiff’s version of events as described in his evidence as being a truthful account. Following my review of the medical evidence, I accept the plaintiff’s evidence of the nature, extent and effect of his injuries and disabilities.

Summary of findings

4. The defendant made an application for an adjournment at the outset of the trial. That application was refused for the reasons I have outlined. I have found the defendant to have been negligent in the events which led to the plaintiff’s injury. I have found that there was no contributory negligence on the plaintiff’s part. I have found that the defence under s 5F of the Civil Liability Act 2002 has not been made out. I have found that the plaintiff is not liable to have his damages reduced on account of the provisions of s 151Z(2) of the Worker’s Compensation Act 1987. I have assessed damages in the sum of $402,624.

Assessed heads of damage

5. A total of nine claimed heads of damage required assessment. These are listed below together with paragraph references:

Head of Damage

Paragraphs

(a) Non economic loss [117]

(b) Past loss of earnings [118] - [120]

(c) Future loss of earning capacity [121] - [123]

(d) Past loss of superannuation [124]

(e) Future loss of superannuation [125]

(f) Fox v Wood [126]

(g) Future treatment expenses [127] - [128]

(h) Future domestic assistance [129] - [134]

(i) Past out-of-pocket expenses [135]

Refusal of defendant’s application for an adjournment

6. The defendant applied for an adjournment at the commencement of the hearing. In refusing the application for an adjournment I found it relevant to review the procedural history of the matter which I set out in the ensuing paragraphs.

7. At a call-over on 18 March 2009 the matter was allocated a hearing date to commence on 5 May 2009. On that day the matter was listed in the reserve list. Before the List Judge, his Honour Judge Garling DCJ, the defendant sought an adjournment of the proceedings on the ground that it wished to have the plaintiff medically examined. That application was refused by the List Judge.

8. Subsequently the matter was allocated to be heard. When the matter was called on the defendant renewed the application for an adjournment on the same grounds and on the same evidence that was before the List Judge. The defendant’s renewed application was refused. I indicated that I would set out my reasons for refusing an adjournment when giving my reasons for determining the substantive issues in the proceedings and I now do so.

9. The plaintiff’s proceedings were filed on 20 August 2008 at which time the matter was entered into the General List and a timetable and standard directions were issued. The aim of those directions was to afford the parties an early trial date without undue delay. The directions provided for a pre-trial conference date of 16 October 2008 and for a status conference date of 18 March 2009. The expectation of the Court and the parties was that these dates would be observed unless there was good reason to depart from the standard directions.

10. Thereafter, an appearance was filed by the defendant on 19 September 2008. At the scheduled pre-trial conference the defendant consented to an unremarkable series of standard orders that provided a timetable for the filing of a defence, replying to particulars, the serving of medical and expert evidence by the plaintiff by 18 December 2008 and likewise by the defendant by 15 February 2009. On this basis a status conference scheduled to take place before the Judicial Registrar on 18 March 2009 was confirmed. A defence was filed on 27 October 2008.

11. On 18 March 2009, at the status conference before the Judicial Registrar, the parties appeared and a hearing date of 5 May 2009 was allocated with an estimate of 2 days. At that time it was noted that the standard orders were to apply.

12. The evidence in support of the application for an adjournment demonstrated that the solicitor for the defendant had made a forensic decision to defer appointing medical examinations of the plaintiff in order to await the results of inspection of subpoenaed materials relating to some damages issues. The matter was allocated a hearing date before the defendant had taken the step of issuing requests for the plaintiff to submit to medical examinations. It appears that the non-production of documents required by the issued subpoenas was influential in the delayed timing of the defendant’s requests for medical examinations. The defendant did not seek to vary the time tabled directions in light of these events but instead appointed medical examinations that would have necessarily involved reports being generated in response, which if the defendant wished to rely upon them, meant they would have to be served outside the applicable time frame for such service as was provided by the timetable ordered by the Judicial Registrar. Unsurprisingly, in view of the timetable in place without variation, the plaintiff declined to attend the appointment so arranged.

13. On 8 April 2009 the defendant filed a notice of motion returnable on 24 April 2009 seeking orders for the plaintiff to attend an examination with a general surgeon and an occupational therapist nominated by the defendant and related orders. On the return date of that notice of motion the Judicial Registrar made orders dismissing the motion, confirming the hearing date already fixed for 5 May 2009 and ordering the defendant to pay the plaintiff’s costs of the motion.

14. On 1 May 2009 the defendant filed a further notice of motion returnable on 4 May 2009 which was the day before the fixture for the hearing. In that motion the defendant sought a series of orders including the vacation of the hearing date, the attendance of the plaintiff at examinations nominated by the defendant, an extension of time for the defendant to serve its medical evidence and the re-listing of the matter for hearing on another date.

15. On 4 May 2009 when the motion was due to be heard there was no appearance by the defendant because both counsel and the solicitor for the defendant were unable to appear. The List Judge then stood the motion over for hearing on the trial date scheduled for the following day. On 5 May 2009 the List Judge heard the motion which was opposed by the plaintiff. The defendant’s application for the vacation of the hearing date and other orders was refused with the costs of the application ordered to be paid by the defendant. The substantive matter was then allocated to be heard before me.

16. When the matter was called on for hearing the defendant renewed its application for an adjournment. I now set out my reasons for refusing the renewed application for an adjournment. Before doing so I will review the applicable principles.

17. Sections 56 and 58 of the Civil Procedure Act 2005 provide the guiding principles by which litigation should proceed in this state. The over-riding purpose to be observed by the parties and their legal representatives in the conduct of litigation is the facilitation of the quick, just, cheap and therefore efficient disposition of the issues between the parties. This requires that the respective interests of the parties be balanced along with the requirements of the proper administration of justice, taking into account the public interest in ensuring the efficient and equitable utilisation of public resources.

18. In this case the interest of the plaintiff was to have his case listed, heard and determined at the earliest opportunity whilst at the same time affording the defendant a reasonable opportunity to take the necessary steps to defend the plaintiff’s claim. The interest of the defendant was to avail itself of the reasonable opportunity to take steps aimed at assisting it to meet and defend the plaintiff’s claim. The expectation is that both of these aims be pursued in a timely manner without injustice to either party. To that extent the respective interests of the parties coincide. Otherwise the aims of the respective parties are in conflict insofar as the desired outcome of the litigation is concerned.

19. In this case the plaintiff complied with the procedural directions that were given and served medical evidence with his particulars. This was done on 20 August 2008. The consequence of such compliance was the expectation of the timely allocation of a hearing date for a trial of the issues.

20. The medical evidence served by the plaintiff disclosed the plaintiff had a prior back injury and previous knee problems. On 21 October 2008 the solicitor for the defendant sought her client’s instructions, presumably from an insurer, to have the plaintiff medically examined by an orthopaedic surgeon. On 29 October 2008 those instructions were forthcoming but came with the rider that the appointment for examination should be deferred until the production on subpoena of documents held by the treating general practitioner “to ensure that the surgeon had before him/her a relevant medical history in order to assist in the examination and preparation of his/her report” in contrast to the usual course in which the examiner takes the history from the examinee and provides a report which may or may not be followed with further information depending on the nature of the case.

21. Clearly, in the circumstances, the defendant made a forensic decision concerning the manner in which it would seek to defend the plaintiff’s claim, using the opportunity for a medical examination for investigatory purposes. Be that as it may, the decision to do so and the timing of those arrangements had procedural consequences for the defendant.

22. In personal injury litigation it is well known that orthopaedic appointments involve some delay between the time of the request and the time of the appointment and are generally not readily obtainable at short notice. In view of this well known fact the defendant ought to have known that the course it intended to pursue would have placed the procedural timetable for the proceedings out of kilter. In those circumstances, if the defendant wished to proceed along its desired course, it was obliged to apply to seek a variation in the timetable in the event that consent for such variation was not forthcoming beforehand. In this case the evidence does not reveal any attempts by the defendant to secure the plaintiff’s consent for medical examinations to be convened outside the directed timetable before the matter came before the Judicial Registrar on 18 March 2009.

23. Instead, by emailed letter timed at 11.35am on 18 March 2009 the solicitor for the defendant simply appointed examinations of the plaintiff with Dr Edwards, an orthopaedic surgeon, on 26 March 2009 and with Ms McKenzie, an occupational therapist, on 27 April 2009, and advised the plaintiff’s solicitor accordingly. That emailed advice was in the context of a status conference fixed for 2.45pm before the Judicial Registrar on that day.

24. At the status conference the defendant’s desire for a medical examination was ventilated before the Judicial Registrar who confirmed the hearing date without variation of the timetable. This led to further correspondence. By letter dated 25 March 2009 the solicitor for the defendant foreshadowed the filing of a notice of motion seeking orders that the plaintiff attend examinations appointed by the defendant with Dr Edwards on 26 March 2009 and also with Ms Mills on 27 March 2009. The letter from the solicitor for the defendant foreshadowed:

“3. … We expect that if the medical examinations proceed, the trial date of 5 May 2009 may be maintained.
4. Our client will suffer significant prejudice if it is forced to defend the matter at a hearing without any medical evidence and will no doubt appeal any judgment which may be entered against it.”

25. The foreshadowed motion was filed on 8 April 2009 and was made returnable on 24 April 2009 at which time the Judicial Registrar made orders dismissing the motion with costs and confirming the hearing date. A further motion was filed by the defendant and was returnable on 4 May 2009. The representatives of the defendant were unable to appear on that occasion and the List Judge stood the motion over to a directions hearing the following day, which was the date fixed for hearing. As already described, on that occasion the List Judge declined to make the orders sought. I took the same course when the motion and application for an adjournment was re-agitated before me.

26. Whereas in bygone days, a party who had failed to comply with case management orders setting out procedural timetables was at times permitted extensions of time and indulgences subject to the imposition of appropriate orders for costs, the advent of s 56 of the Civil Procedure Act 2005 now requires that applications for such indulgences should be considered in the context of adherence to the overriding purpose as provided by that section. The application of the section is no longer discretionary but is instead mandatory and paramount in its application : Dennis v Australian Broadcasting Corporation [2008] NSWCA 37 per Spigelman CJ at [28] – [29] distinguishing State of Queensland v JL Holdings Pty Ltd [1997] HCA; (1997) 189 CLR 146.

27. In this case the defendant sought the indulgence at the commencement of the trial. The need for the indulgence sought did not arise from unforseen events or from circumstance outside of the control of the defendant. Instead, the application arose from the consequences of a forensic stance taken by the defendant in the face of, and in conflict with, timetabling directions for case management.

28. In my view in such circumstances the prejudice to the plaintiff of an adjournment, with concomitant delay, outweighed the potential for prejudice to the defendant that may have resulted from having only a limited, and less than hoped for, armamentarium in its means of defence to the plaintiff’s claim on damages. I took this view particularly having regard to the manner in which these circumstances arose with regard to the forensic decisions made by the defendant, the timing of those decisions and the impact such decisions would have on the facilitation of the quick, just and cheap disposition of the issues between the parties.

29. It is instructive to look at the reason for the defendant’s position. Early in the proceedings the plaintiff had disclosed previous back and knee injuries, including a spinal fusion. It was not as if the plaintiff was concealing such matters. In my view, a defendant’s medical examiner with expertise in the field of orthopaedics ought to have been in a position to elicit these matters of history from the plaintiff and appropriately consider them in order to express a causal opinion on them or if not, then be in a position to suggest the obtaining of possible further information if necessary. An example of such further information would be obtaining x-rays before expressing a concluded view on matters such as causation of injury and resultant disability.

30. Instead, the defendant took a considered stance of seeking to gather evidence before embarking on appointing such an examination. In my view that course was unreasonable in the circumstances of this case because it would have necessarily caused a breach of the timetable. The defendant obviously delayed appointing medical examinations for a perceived tactical advantage which, in this instance, has not favoured the defendant. I took the view that the plaintiff should not be delayed or inconvenienced by such a decision.

31. Accordingly, I dismissed the application for an adjournment and the matter proceeded to a final hearing.

32. It is noteworthy that when the trial proceeded the defendant was able to avail itself of a number of expert reports, including from orthopaedic surgeons who had been engaged by the workers’ compensation insurer.

B. LIABILITY

Facts

33. The plaintiff was the sole employee, director and shareholder of Pro Metro Pty Ltd. He was employed as a delivery driver by that company, which was contracted to the defendant to deliver hardware goods to the defendant’s customers. Previously he had been employed by the defendant in the same capacity. At the time of the incident the plaintiff was walking towards an exit door within the defendant’s hardware warehouse and towards his truck that was parked in the yard of the premises. He was carrying some heavy timber gluts or load spacing timbers on his shoulder to load them onto his truck in preparation for making his deliveries to customers. On the plaintiff’s description those gluts were about 1.5m in length and the plaintiff carried them protruding forward of his right shoulder by a length of about three quarters of a metre.

34. The floor of the defendant’s premises on which the plaintiff had to walk had earlier become flooded by water that had pooled due to a heavy deluge of rain. The plaintiff had to walk through this pooled water in order to gain access to his truck in order to load it for deliveries. As the plaintiff walked through this pooled water he was carrying the gluts over his right shoulder and he placed his foot on a submerged forklift tine. As he did this he realised that his foothold slipped on that tine and he then fell to the floor and landed in a seated position thereby causing a jarring injury to his back and to his right knee.

35. After the fall it was ascertained that a forklift truck belonging to the defendant had been parked behind a pillar within the premises in a position where it’s presence was obscured to the plaintiff’s view by reason of the presence of that pillar. The tines of the parked forklift truck were left protruding forward at ground level but these tines were covered by water that had pooled on the floor. The water was pooled to a sufficient depth to conceal the tines from the plaintiff’s view. The plaintiff claims that the fall occurred when he slipped on one of these concealed tines as he walked through the area covered by the pooled water. He was wearing work boots at the time of the incident.

36. The plaintiff stated that he was familiar with the premises. He said that he was not expecting to find the forklift truck parked in that position. He was not warned of its presence nor was he able to detect the tines which had been extended and submerged in some inches of water. The plaintiff stated that the incident occurred as he walked through a doorway that was about six metres wide and which was also used by members of the public to access the defendant’s store. The doorway and its adjacent pillar separated the internal area and the outside yard where the plaintiff’s truck was parked. He said he was aware of the fact that in periods of heavy rain water became pooled in that area which had a slight gully or dished section within the concrete floor. He also stated that such pooled water usually drained away and that he was accustomed at such times to walk through it or around the more shallow sections of it in order to traverse the area in question. The photographs that were tendered do not demonstrate the dished area of the concrete floor however I do not consider that anything turns on this because it must be recognised that caution is required in interpreting these photographs due to variables that can arise in the way in which such photographs may have been taken. No photographs were taken on the day of the incident but the photograph comprising Exhibit “3”, which was contrived after the event for demonstration purposes, provides a perspective view of the scene to aid an understanding of how the incident occurred.

37. There was an element of confusion in the recorded descriptions of the plaintiff’s fall. The plaintiff has consistently stated that he slipped, ascertaining after he fell that he had slipped on the extended forklift tine. A witness statement by an employee of the defendant, a Mr Buhagiar, stated that he saw the plaintiff trip and fall. The defendant’s building co-ordinator Mr Pradham filled out an incident report which referred to the plaintiff having tripped when he fell. Having heard the plaintiff’s account in which he said he slipped I prefer his version to the untested account in the statements which suggests he tripped.

38. Mr Pradham’s statement was tendered as Exhibit “E”, he confirmed that on the day the forklift tines were covered by water just enough for them not to be visible which explains why the plaintiff did not see them at the time. He stated that the forklift had earlier been improperly parked and not moved because it was wet.

39. The defendant contested the plaintiff’s version of events and claimed that the plaintiff had slipped and fell because he was not watching where he was walking. The defendant argued that in doing so the plaintiff had failed to observe the position of the forklift truck and its tines and had therefore failed to take care for his own safety thus causing his fall in which he sustained the injuries of which he complained. The defendant further argued that the circumstances in question posed an obvious risk which the plaintiff assumed when he walked over the area where the water had pooled.

Issue 1 - Was the plaintiff’s fall due to negligence on the part of the defendant

40. There can be no dispute that as occupier of the premises the defendant owed the plaintiff a duty of care which included the duty to warn of a foreseeable risk of injury by reason of the condition or state of the premises.

41. This well settled statement has to be read in conjunction with the provisions of the Civil Liability Act 2002 concerning the principles by which liability for negligence should be determined in such cases.

42. In my view the defendant's conduct in parking or permitting the forklift truck to be parked with its tines extended at floor level in proximity to a known pedestrian access route within the premises posed a foreseeable risk of injury to persons, including the plaintiff, when they walked through that area : s 5B(1)(a) of the Act. Further, when the additional factor of the presence of pooled water sufficient to conceal the tines is then added to the consideration this heightens the foreseeability of the risk of injury to such persons. Such a risk was not insignificant : s 5B(1)(b) of the Act. Otherwise, the plaintiff had not anticipated a moving forklift as he would have heard the safety beeping of its approach. Accordingly, the submerged forklift tines represented a concealed danger and a foreseeable source of potential injury.

43. In the circumstances described I consider that a reasonable person in the position of the defendant occupier would have taken precautions so that persons such as the plaintiff would not be injured : s 5B(1)(c) of the Act. Such precautions were not all that onerous or burdensome and could have readily included one or more of the following simple steps, such as pumping or sweeping out the water, or if that was not possible, providing a duckboard or other form of walkway above the water or, if that was not possible, placing an appropriately prominent warning sign or simply stationing an employee at the site to verbally warn persons walking by of the risk of proceeding in such circumstances. Further, it would have been a relatively simple matter to arrange for some qualified person to move the forklift or to adjust the height of its tines to ensure that the tines were not in the water and were not concealed by the water. I consider that all these steps could have been realised to have been reasonably necessary on a simple inspection by a store employee without special skills or training. I do not consider any of these measures to have been unduly burdensome on an occupier of commercial premises that were open to the public as was the case here: s 5B(2)(e) of the Act.

44. I consider that a reasonable person in the position of the defendant would have taken steps of the kind I have outlined with the aim of taking precautions against the risk of injury to persons on the premises in recognition of what I consider to have been the high probability of injury occurring to someone if such precautions were not taken: s 5B(2)(a) and (b) of the Act. Accordingly, I consider that the occupier’s failure to take precautions along the lines I have outlined, in the presence of pooled water across an access way where pooled water concealed from view the presence of submerged forklift tines was a departure from the required standard of care and was therefore negligent. I therefore find that the defendant was negligent.

45. It is necessary to consider whether the defendant's negligence caused the plaintiff's injury. For the reasons that follow I consider that the plaintiff has established that the negligence of the defendant caused the injuries in question.

46. I consider that without the presence of the concealed forklift tines it is most unlikely that the plaintiff would have slipped and fell if he was merely walking through pooled water without hurrying, running or otherwise moving inappropriately. This case is unexceptional and I consider that the defendant occupier should bear the responsibility for the plaintiff's injury: s 5D of the Act. I find this to be so because I consider that if the plaintiff had been traversing the area in question absent the presence of the forklift tines it is most unlikely that he would have slipped and fallen if he had simply walked towards his truck in the manner he described. Further, had there been precautions taken along the lines I have outlined so that the plaintiff would have been given a warning of the risk posed by the submerged tines, he would have been in a position to assess the risk himself and to take a course that would have avoided him walking onto the tines, slipping, falling and thereby sustaining injury.

Issue 2 - Alleged contributory negligence on the part of the plaintiff

47. The defendant claims that the plaintiff’s injury was caused by contributory negligence on his part. In particular the defendant claims that the plaintiff had adopted a system of loading goods that was unsafe in the circumstances. The defendant also alleged that the plaintiff failed to take adequate, or any, care for his own safety, failed to exercise caution in the circumstances and failed to keep a proper, or any, lookout where he was walking. It is for the defendant to prove these matters. In the paragraphs that follow I will review the allegations of contributory negligence.

Allegation of adopting a system of loading goods that was unsafe in the circumstances

48. In my view there was nothing unsafe about the system which the plaintiff had adopted to load the goods. The evidence described the need to load large pieces of timber onto the truck by means of manual handling. The evidence does not suggest that the timber pieces were too large for manual handling so as to require more than one person to manage the task or to use some form of mechanical assistance to load the timber onto the truck. The “system of loading” required that the plaintiff walk across the floor of the warehouse premises to gain access to his truck. He said, and I accept, he had adopted a clear straight path to walk towards his vehicle. In my view there was nothing unusual or unsafe about the loading system. Rather, it was the wet condition of the floor of the premises that was unsafe because of the pooled water. I reject the submission that the plaintiff was contributorily negligent on account of an argued lack of safety in the system adopted for the loading of goods in the circumstances.

Allegation of failure to take adequate, or any, care for his own safety

49. In my view the evidence does not disclose that the activity undertaken by the plaintiff and which led to his injury involved a want of adequate care for his own safety. The plaintiff was walking on a wet floor towards his truck whilst carrying a bearable manual load that was neither too heavy or too awkward in size or shape, across the warehouse floor and car park of the premises with which he was familiar. The only added factor of risk that was apparent to him was that the floor was wet and that water had pooled on the floor to a depth that was not identified in the evidence other than to say it was a few inches deep and of sufficient depth to cover the tines of the forklift. The important point to note was that there is no evidence that anyone had drawn the water depth to the attention of the plaintiff and the plaintiff had no reason to suspect the presence of the concealed tines. Walking through pooled water in such circumstances, of itself, does not amount to contributory negligence. This is so particularly since the description of the manner in which the plaintiff was walking does not of itself bespeak a lack of adequate care for his own safety.

50. Whilst it is true that the activity of walking on a surface that was wet due to pooled water involves an element of risk of slipping and falling there was nothing in the plaintiff’s manner of walking or the manner in which he was load bearing that indicated he had failed to have adequate regard for his own care. In order to load the truck the plaintiff had a number of options. He could have proceeded as he did, or proceeded without the load to test the depth of the water or, if someone who had appropriate knowledge was available, he could have asked about the depth of the water. In the absence of notice of the position of the forklift truck or its concealed tines I do not consider the plaintiff to have acted without reasonable care for his own safety especially since he was familiar with the premises and knew about the water pooling phenomenon. I reject the submission that he failed to take any or any adequate care for his own safety.

Allegation of failure to exercise caution in the circumstances

51. In my view there was nothing in the plaintiff’s evidence that indicated he failed to exercise due caution in the circumstances. For example, he was not running or walking in an unusual manner. He did not slip on the floor itself, he slipped on the forklift tines that were concealed from his view. Had he slipped on the floor itself that may have been a different matter, but he did not. In the absence of evidence that the plaintiff proceeded towards his truck in an unusual manner for the prevailing circumstances, I am not prepared to find that the plaintiff failed to exercise due caution in the circumstances.

Allegation of failure to keep a proper, or any, lookout where he was walking

52. I do not accept the submission that the plaintiff failed to keep a proper or any lookout where he was walking. He had seen the accumulated pooled water that covered the particular section of the floor. He did not see the submerged tines of the forklift truck because of the presence of pooled water. Had the tines of the forklift been on view to be seen through the water, and there is no evidence that this was so, and had the plaintiff failed to observe them and slipped or tripped over them in such circumstances, that would have been a different matter but that was not the case. In the absence of evidence that he knew or was likely to know that the water covered floor had submerged obstacles in his intended path, I am unable to find that the plaintiff had not been keeping a proper lookout where he was walking. In the absence of a demonstrated need for the plaintiff to be on his guard or enquiry for his own safety, simply walking in pooled water in such premises which were familiar and in an area that provided access to the public, is not an activity that equates with a failure to keep a proper lookout. The plaintiff was walking appropriately and I do not consider that he was not looking where he was going.

53. The defendant placed some importance on the fact that by carrying the timber on his right shoulder he obscured his view to the right. Whilst that may be so, it does not equate with contributory negligence where there was no observable source of danger to the plaintiff’s right. If the potential danger was a moving forklift and it is not, the evidence was that moving forklifts emitted a beeping noise. That is not a relevant consideration here. What is relevant is that the plaintiff was not expecting the forklift to be parked where it was. Mr Pradham confirmed this. The plaintiff therefore had no reason to suspect it was parked there inappropriately and he was unable to see the tines because they were submerged. He was however watching where he was placing his feet, which is the relevant consideration which in my view negates contributory negligence on his part.

Conclusion on contributory negligence submissions

54. Accordingly, I find that the defendant has failed to discharge the burden of proving that the plaintiff’s injury was either caused by or contributed to by reason of contributory negligence on the part of the plaintiff. I find that the defence of contributory negligence has not been established by the defendant.

Issue 3 - s 5F of the Civil Liability Act 2002

55. Section 5F of the Civil Liability Act 2002 provides:

“ 5F Meaning of “obvious risk”

(1) For the purposes of this Division, an "obvious risk" to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person.
(2) Obvious risks include risks that are patent or a matter of common knowledge.

(3) A risk of something occurring can be an obvious risk even though it has a low probability of occurring.

(4) A risk can be an obvious risk even if the risk (or a condition or circumstance that gives rise to the risk) is not prominent, conspicuous or physically observable.”

56. The presumption of awareness of risk provided by s 5F is a rebuttable one so that even in the event that s 5F applied to the circumstances, the provisions of s 5G have to be considered : Angel v Hawkesbury City Council [2008] NSWCA 130 at [24].

57. In the terms of s 5F of the Civil Liability Act 2002 I do not consider that the risk of slipping on the submerged tines of the forklift truck constituted what a reasonable person in the position of the plaintiff would have considered to be an obvious risk.

58. I have come to this view because the submerged tines were not patently on view to be seen by the plaintiff at the time and he was therefore unaware of the risk of harm from slipping on one or other of those tines : s 5G of the Civil Liability Act 2002.

59. The presence of the forklift, which might have given an indication of the position and presence of the tines, was obscured from the view of the plaintiff due to the fact that it was parked behind a pillar. Accordingly, the evidence discloses that the plaintiff did not know, either commonly, expressly or by implication from the circumstances, that the tines were a present danger and therefore an obvious risk. In my view, such lack of conspicuity, prominence and observability of the submerged forklift tines contra-indicates the notion of obviousness of risk in this case.

60. A reasonable person in the position of the plaintiff ought to have been aware that the risk of slipping on a floor made wet by the presence of pooled water was an obvious risk. However, the notion of obviousness must relate to the risk under consideration. Here the plaintiff did not slip on the floor itself due to its wetness but in fact slipped on the concealed forklift tines, the presence of which were reasonably, not obvious to him because they were covered by accumulated water.

Issue 4 - s 151Z(2) issues

61. Section 151Z(2)(a) provides for circumstances such as those which pertain in this case, where an employee takes proceedings to recover damages for injury from someone other than the employer. In that event the provisions of s 151Z(2)(c) to (e) apply and the damages require reduction to accommodate any contribution from the employer where, if sued, the employer would be found to have been negligent.

62. In this case I do not see any proper basis upon which to find the plaintiff’s employer responsible for the plaintiff’s injury so as to require a contribution to or a reduction from the plaintiff’s entitlement to damages. The state of the premises and the concealed danger posed by the submerged forklift tines were the responsibility of the occupier of the premises.

63. In this case, the plaintiff was the controlling mind of the company that employed him : Presidential Security Services Pty Ltd v Brilley [2008] NSWCA 204. It is not feasible in such circumstances for him to in effect, sue himself. In any event, in the same way and for the same reasons that I have found there was no contributory negligence on the plaintiff’s part I find that the employer was not negligent so as to attract the damages reduction calculus of s 151Z(2) of the Act. In my view, if the plaintiff’s employer had been sued, it would most likely have not been liable for the plaintiff’s fall and for his injuries. Accordingly, I do not make any reduction in the plaintiff’s damages on account of s151Z(2) of the Workers’ Compensation Act 1987.

C. DAMAGES ISSUES

The plaintiff

Background

64. The plaintiff was born in Fiji in 1951. He had arrived in Australia when he was aged 20 years in 1971. He was aged 55 years when injured. He was aged 58 years at the time of the trial. The plaintiff had a limited education and did not read or write well. In Fiji, between 1966 and 1968 the plaintiff had trained and had worked as a telecommunications linesman.

Plaintiff’s work and health history

65. Following his arrival in Australia, between 1971 and 1982 the plaintiff worked as a process worker in a brewery in Sydney. In 1980, during the course of that employment he sustained a severe back injury when a metal beer keg had become dislodged from a stack of kegs and struck him in the back. The ensuing injury resulted in the plaintiff needing a surgical fusion of his lumbar spine at the levels L5 / S1.

66. After recuperating from his spinal surgery, between 1982 and 2003 the plaintiff worked as a delivery driver. Initially that work involved him in carrying out light deliveries for a number of companies. The work later changed to delivering cartons of bottled wine. He then worked for the Bunnings Group as a delivery driver. When the new owners took over he continued in that work but his employment was then with Prometro Pty Ltd which was in effect self employment with his own corporate entity.

67. His duties were essentially carrying out contract duties delivering hardware for the defendant in the Ashfield area generally. This work, which was an extension of the work he did for the defendant under its previous ownership, was based on a verbal agreement. This involved him making deliveries for the defendant of building materials such as timber, bricks, cement and gyprock. He was paid $28 per hour for this work. Before the injury which is the subject of this claim, the plaintiff did not experience difficulty with these heavier aspects of this delivery work. I accept his evidence in this regard.

68. For about seven years before his injury the plaintiff had experienced some knee pain. His evidence concerning this was that any such knee pain had not affected his ability to carry out the requirements of his work in the years before the injuries he received on 5 June 2006. I accept his evidence in this regard.

Injuries sustained

69. In the incident in question, immediately after the plaintiff fell, he realised he had sustained a sore back. He later realised he injured his left knee and left leg. He nevertheless carried out two deliveries that afternoon and then went to see a nearby general practitioner, Dr Latif whom he saw at about 3.00 to 4.00pm on that day, a few hours after being injured.

Initial treatment and medical investigations

70. Dr Latif ordered x-rays of the back, the left knee and right ankle and gave the plaintiff some medication. The plaintiff did not return to work that day or subsequently. The plaintiff did not return to see Dr Latif again, because of parking difficulties he experienced in attending the practice of Dr Latif.

71. On 10 June 2006 the plaintiff consulted his usual general practitioner, Dr Laughlin at the Merrylands Medical Centre. The plaintiff told Dr Laughlin about the incident in question and that in the incident he fell onto his back and injured it. He also told Dr Laughlin that as he fell the timber landed on his left knee and he twisted his right ankle. Dr Laughlin felt that this mechanism of injury may have contributed to injury to the left knee. On examination, Dr Laughlin observed the plaintiff’s back had spasm with associated restriction in flexion and extension. Dr Laughlin also noted that on examination the plaintiff had pain and swelling in what I infer from the context, were his left knee and right ankle.

72. Dr Laughlin arranged x-rays of the knee and ankle and these did not show any bony injury. He initially prescribed treatment with analgesia, ice packs and rest. On 13 June 2006 the plaintiff had physiotherapy at which time it was noted that he was having hip problems however this problem resolved in the short term.

73. The initial diagnosis was of soft tissue injury and strain to the affected areas.

74. Dr Laughlin continued to see the plaintiff on some 40 or so occasions at regular intervals to manage the after-effects of the injuries sustained in the incident.

75. The plaintiff has been taking Voltaren tablets daily for his back pain as well as occasionally taking Panadeine Forte but this latter medication caused him a gastrointestinal side-effect. He has also tried but ceased taking the medication Mobic. He was prescribed an anti-depressant medication but ceased this because it gave him headaches and made him feel sleepy.

Non-treating medical and allied assessments

76. In addition to being seen by general practitioners the plaintiff has been examined by various specialists. His solicitors arranged to have him assessed by Dr GD Patrick, a surgeon and Dr V Maniam, an orthopaedic surgeon. The workers’ compensation insurer arranged to have the plaintiff assessed by Professor R Bauze, an orthopaedic surgeon, Dr M Bookallil, a neurosurgeon, Dr P Miniter, an orthopaedic surgeon, Ms L West, a physiotherapist, Mr G Frost, an exercise physiologist, Ms A Pyke, Ms A McGillivray and Ms T Simpson who are occupational therapists. In the paragraphs that follow I will review these assessments of the plaintiff.

Dr Latif – initially consulted general practitioner – no report tendered

77. No medical report has been tendered from Dr Latif, the general practitioner whom the plaintiff initially consulted on the day of his injury. The plaintiff stated Dr Latif examined him, gave him medication and suggested he take a week off work. Since there is no evidence that a report has been obtained from Dr Latif I draw no inferences concerning the absence of a report from him.

Dr Laughlin – the plaintiff’s usual general practitioner

78. The defendant tendered 10 pages of handwritten clinical notes obtained from the file of the plaintiff’s treating general practitioner, Dr Laughlin. The starting date of those notes was 17 February 2002 and the end date was 17 December 2008.

79. Those notes show that on 16 February 2002 the plaintiff had been involved in a previous motor vehicle accident in which he had injured both of his knees when they came in contact with the dashboard. It was also noted that he complained of some neck pain. The last entry in the clinical notes concerning that previous injury is dated 18 April 2002. The handwriting for that entry is difficult to decipher but it seems to indicate that there was tenderness evident on examination of the medial aspect of one of the plaintiff’s knees and it was thought that there was a ligamentous injury without evidence of crepitus.

80. Those notes also show that on an uncertain date some time before 27 August 2005, amongst other things, the plaintiff had complained of low back ache for about 3 to 4 weeks. It is impossible to accurately decipher the handwriting in respect of this entry in the notes.

81. Thereafter, and significantly, there appears to be at least one page missing from Dr Laughlin’s copied handwritten notes because there is no text included concerning any consultations between the entries for 19 February 2006 and 10 July 2006.

82. The significance of these absent consultation notes is that this period covers the time when the plaintiff first consulted Dr Laughlin in respect of the injury which is the subject of this claim. The absence of this material remains unexplained however Dr Laughlin has provided a report that relevantly deals with the plaintiff’s injury.

83. On my reading of Dr Laughlin’s notes made on 10 July 2006 he recorded that the plaintiff’s ankle was better, but there was a complaint of a slight knee pain and a statement that the back pain was worse if the plaintiff coughed or sneezed. The remainder of the entry is difficult to decipher except for the notation that the plaintiff had been sent to an insurance doctor for an examination some two weeks previously.

84. I find it difficult to reliably extract any further clinical details from Dr Laughlin’s notes apart from his notations suggesting that there had been regular contact discussions between himself and representatives of the plaintiff’s workers’ compensation insurer.

85. The report of Dr Laughlin commented on the plaintiff’s back problems in the light of the findings on MRI he had arranged. He commented in the following terms:

“Mr Chandra had an MRI performed on 17 August, 2007 and I assume you have a copy of the report. Essentially this showed quite marked generalised degenerative change and some posterior protrusion of discs at various levels. There is the possibility of some narrowing of the foramen on the right side at the L5 level, and therefore the possibility of sciatica.

I should also note that there is a prior history of low back injury and a fusion procedure carried out some years prior to this incident from which Joseph had recovered and after which he was carrying out the duties which were his pre-injury duties at the time of the accident without any difficulty. Hence, I don’t consider this an aggravation but rather a new incident.
I note in other reports that where there is a finding of a back x-ray of degenerative change, that often times (sic) experts suggest that this is the cause of the problem. However, the presence of degenerative change in someone who is over 50 does not preclude worsening of symptoms as a result of a new injury, and I believe this is the case in this instance.”

Dr Vijay Maniam – orthopaedic surgeon – report dated 20 August 2008

86. On 16 June 2000 the plaintiff was assessed by Dr V Maniam at the request of his solicitors. Dr Maniam took a history from the plaintiff that he sustained an injury to his lumbar spine on 5 June 2006. In the consultation the plaintiff complained about a moderately severe lumbar spine pain with radiation into the buttocks and lower limbs. Dr Maniam reviewed the prior history of lumbar fusion and examined the MRI scan dated 17 August 2007 which revealed a moderate degree of facet joint arthropathy, a right eccentric disc bulge, facet joint hypertrophy and ligamentum flavum hypertrophy, all of which appeared to compromise the central canal along with the possibility of a right L5 nerve root foraminal narrowing. He recommended treatment along conservative lines with physiotherapy and medication.

Dr WGD Patrick – general surgeon – report dated 4 July 2007

87. On 4 July 2007 the plaintiff was examined at the request of his solicitors by Dr WGD Patrick, a general surgeon. Dr Patrick prepared a report on the same day of the examination. Dr Patrick carefully recorded the plaintiff’s complaints of post-accident problems. Dr Patrick noted an antalgic gait with the limp favouring the left lower limb. He noted the presence of thoraco-lumbar stiffness with limitation of movement and the presence of other signs. After reviewing the x-rays Dr Patrick commented that the plaintiff presented as genuine, with clinical evidence of left lower limb radiculopathy emanating from the lumbar spine. He also noted the presence of post traumatic, chondromalacia of the left patella.

88. Dr Patrick believed that the plaintiff’s employment / work was a substantial contributing factor to his injuries and continuing symptoms concerning his back, left lower limb, left knee and right ankle. Dr Patrick was of the opinion that the plaintiff was permanently incapacitated for his pre-injury work as a delivery driver and was permanently incapacitated for physical work involving heavy lifting / carrying, frequent bending, prolonged stooping, significant squatting / kneeling, handling a lot of steps / stairs or ladder work, or working on uneven ground. Dr Patrick believed that the likelihood was that the plaintiff would be permanently incapacitated for all work.

Associate Professor RJ Bauze – orthopaedic surgeon – reports dated 22 June 2006 and 5 April 2007

89. On 22 June 2006, at the request of the workers’ compensation insurer, the plaintiff was examined by Associate Professor Robert Bauze who reviewed the history of the incident, the significant past history, the history of the plaintiff’s current complaints and then conducted a physical examination. He also reviewed the products of investigations namely x-rays. Associate Professor Bauze concluded with his diagnosis that the plaintiff had aggravated degeneration in the lower lumbar spine and had also quite possibly aggravated pre-existing intervertebral joint degeneration. He agreed that the plaintiff appeared to be in extreme pain at the time of examination and was not fit for any form of work. He stated that the prognosis was guarded. He was of the opinion that the plaintiff has aggravated pre-existing degeneration of the lumbar spine and that such aggravation had not yet ceased at the time of the examination. He also concluded that the incident of 5 June 2006 was a substantial contributing factor to the current condition, as an aggravation of the pre-existing degeneration. He suggested a review of the plaintiff in three months time.

90. On 5 April 2007 Associate Professor Bauze re-examined the plaintiff and reviewed the history since his last report. He noted that the plaintiff walked very awkwardly in apparent genuine pain and noted that it was very difficult for him to get out of the chair at the time of examination. Associate Professor Bauze reiterated his earlier diagnosis, confirmed the consistency of the history and the complaints and noted that there had been minimal improvement. He accepted that the plaintiff remained with significant low back pain which, in his opinion, was genuine. He confirmed that the plaintiff was unfit for any form of work and noted that it was unlikely that he would ever be able to return to work, the aggravation of the earlier condition having not ceased.

Dr Paul Miniter – consultant orthopaedic surgeon – report dated 12 September 2007

91. On 10 September 2007, at the request of the workers’ compensation insurer, the plaintiff was examined by Dr Paul Miniter, a consultant orthopaedic specialist. Dr Miniter noted that he had read and noted the documentation which had been forwarded to him but he did not otherwise fully identify that information. It seems that Dr Miniter had at least been provided with a copy of a lumbosacral MRI scan report dated 17 February 2007.

92. Dr Miniter noted his interpretation of the plaintiff’s complaints as being poorly defined back pain extending from the mid-thoracic zone to the lumbosacral junction with pain in the left buttock made worse with sneezing and he noted the plaintiff’s complaint of an inability to return to work. He also noted a complaint of weight gain. Dr Miniter considered the plaintiff to be a particularly pain focused individual because of many non-organic signs in the presentation. He found no abnormality on examination of the left knee. He noted extensive disease affecting the entire lumbosacral spine protuberances of the L2/3, L3/4, L4/5 and L5 discs without clear evidence of nerve root compression although he acknowledged that there may be some narrowing of the right sided L5 outlet foramen and difficulty identifying the previous surgery. He found he was not certain of the cause of the plaintiff’s pain and found the diagnosis to be elusive.

93. In answer to specific questions asked of him by the insurer Dr Miniter stated that the plaintiff had non-specific back pain in the lumbosacral and thoraco-lumbar spines. He stated his disagreement with the plaintiff’s self-assessment of his own employability and regarded him as being fit to return to work. Dr Miniter gave no reasons for his view in that regard.

94. In answer to other questions he addressed the question of estimated period of incapacity and prognosis by stating that the estimated period of incapacity after an injury of the sort reported by the plaintiff was somewhere between six and eight weeks although if there had been a disc disruption this could be expected to extend to 3 months. Dr Miniter expressed the view that by the date of his examination the plaintiff could have been functional enough to return to some type of employment. He stated that the plaintiff did not require formal rehabilitation and he further stated that one would have to regard the plaintiff’s injury as an aggravation although the exact cause of the plaintiff’s problem was very difficult to determine and the cause of the pain would in all likelihood remain elusive.

95. Importantly, Dr Miniter stated that he did not regard the plaintiff to be fit for unrestricted duties and regarded him as being able to return to truck driving as long as there was no extensive loading involved in this work. He did not identify reasoning for these views as required by clause 5(c) of schedule 7 to the Uniform Civil Procedure Rules 2005.

Dr Anthony Bookallil – consultant neurosurgeon – two reports dated 25 February 2008

96. On 25 February 2008, the plaintiff was examined by Dr Anthony Bookallil at the request of the workers’ compensation insurer. The report of that examination bears the same date. Dr Bookallil reviewed the prior history and reported on the results of his physical examination. He noted that the plaintiff had impaired back movement to the extent of about half the normal range. He noted that the pain in the legs was worse with walking and was relieved by rest as was classic of lumbar canal stenosis but he also noted that the plaintiff’s most overwhelming symptom was the back pain which was constant and required painkilling medication. He was of the opinion that the plaintiff was incapacitated for all but light work, that such incapacity was indefinite, and the prognosis of the incapacity was guarded. He concluded that the plaintiff had aggravated a pre-existing condition of his back and that such aggravation had not ceased.

Peak Conditioning physiotherapy report dated 14 August 2006

97. On 14 August 2006 the plaintiff was assessed by Ms Jocelyn West, a physiotherapist engaged by the workers’ compensation insurer. The purpose of the assessment was to ascertain the feasibility of rehabilitating the plaintiff to his pre-injury duties as a truck driver and manual labourer. She recommended that that the plaintiff participate in a one month Peak Conditioning work hardening program comprising eight supervised gymnasium-based sessions and to case conferences with an exercise physiologist.

Peak Conditioning exercise physiologist’s report dated 26 September 2006

98. On 26 September 2006, Mr Glen Frost, the exercise physiologist engaged by the workers’ compensation insurer, reported upon the plaintiff’s completion of the supervised exercise sessions that had been previously recommended. By the conclusion of the programme the plaintiff had improved his functional tolerances however he was still not able to carry out his pre-injury work. It was concluded that the plaintiff was unable to reach the rehabilitation goal by the completion of the programme.

Peak Conditioning exercise physiologist’s report dated 1 December 2006

99. On 1 December 2006, Mr Frost prepared a further report following the plaintiff’s completion of a further supervised programme of exercise sessions aimed at advancing his rehabilitation. Whilst there were some exercise benefits from the sessions which improved some of the plaintiff’s fitness levels, and whilst the plaintiff was compliant with the program, he still demonstrated pain focused behaviour. Consequently, no further supervised sessions were recommended, the program ceased and the plaintiff was left to maintain his exercise program independently.

Section 40 Certificate

100. On 17 August 2007, at the request of the workers’ compensation insurer, the plaintiff was examined by Ms Azaria McGillivray, an occupational therapist and by Ms Amelia Pyke, a rehabilitation counsellor. This process involved a two and-a-half hour functional assessment and a two hour vocational assessment, which involved a combination of interview and functional activities. This process demonstrated that the plaintiff was precluded from returning to his pre-injury employment.

101. The plaintiff was considered to be unsafe for the performance of many of the postural and dynamic tasks involved in such employment, demonstrating reduced muscular strength, endurance and biomechanical control. This assessment merely resulted in recommendation for the plaintiff to participate in volunteer work or an updated work conditioning program to improve his fitness levels, postural tolerances and mobility. They thought that courses involving such tasks could possibly increase the chances of the plaintiff returning to the workforce. Referral to a rehabilitation provider was recommended as was referral to cognitive behavioural therapy to assist the plaintiff with his moderate to severe depressive symptoms. No evidence has been obtained from a psychologist or from a psychiatrist.

Work Solutions report received by workers’ compensation insurer on 28 November 2007

102. On 28 November 2007, Ms Trudy Simpson, an occupational therapist of Work Solutions sent an undated letter to the workers’ compensation insurer in which she reviewed a number of reports, including one which was not the subject of tender in evidence. She concluded that the plaintiff was not currently fit to return to work in any capacity. It was noted that further rehabilitation programmes were required in order to enhance the prospects of the plaintiff returning to work. It appears that this report was based on a review of the papers rather than being based on an actual examination of the plaintiff.

Disabilities

103. Before the injuries in question the plaintiff had episodes of back pain which he described as being slight. This was not surprising since he had previously sustained a significant back injury for which he had spinal fusion surgery. It is also unsurprising because he was engaged in heavy work which he nevertheless found manageable. His evidence was that the prior back injury did not affect his ability to do his work which consisted of loading and unloading items of hardware from his truck. Similar comments apply with regard to a previous left knee condition. I accept his evidence in that regard. It is borne out by his steady work history and by the absence of medical evidence in the records of his general practitioner as to any periods off work due to disability before the events with which this litigation is concerned.

104. Following his injury the plaintiff’s back condition changed from having what I infer was an intermittent and occasionally slight problem, to what has since become a very severe problem with back pain. He experiences pain from the mid-line of the back at about belt level from the centre extending to the hips. This prevents him from sitting for prolonged periods. He experiences a pins and needles sensation in both legs. Bending and prolonged standing are also problematic for him. The preponderance of the medical opinions is that the plaintiff has sustained a significant aggravation of an underlying back condition that has as a result become incapacitating and productive of significant pain, discomfort and restriction of movement. This aggravation has been characterised by Dr Laughlin as not so much an aggravation but a new incident. Given the opinions of Dr Patrick, Professor Bauze and Dr Bookallil, whose opinions I prefer and accept in preference to that of Dr Miniter, I do not consider it necessary to resolve the issue of whether there has been a new injury or an aggravation. Both explanations seem reasonable and plausibly explain the plaintiff’s ongoing problems which prevent him from working.

105. The plaintiff experiences continuing problems with his left knee. The knee injuries he received in a motor vehicle accident in 2002 had mostly resolved and his left knee only gave him occasional problems with pain. Now his left knee gives him considerably more problems. He feels like he is falling at times although he has not yet fallen. Dr Patrick, whose opinion I accept, identifies the condition of chondromalacia patella as the probable explanation for the knee problem.

106. The plaintiff has difficulty with mobility, climbing stairs or negotiating uneven ground. He has reduced standing and walking tolerance, having to stop walking after about 20 minutes. He experiences difficulty driving a car.

107. These problems cause him upset, he has become cranky and argumentative. He takes Voltaren and occasionally Panadeine Forte for his pain. He was trialled with anti-depressants but these gave him headaches. He continues to suffer from sleeplessness.

108. He has difficulties carrying out heavier forms of housework which involve bending and mopping. He has difficulty tying his shoelaces. These types of activities cause him to experience back pain. He intends to obtain paid help for these tasks which are presently provided to him gratuitously by his son.

Post-injury employment

109. The plaintiff has not worked since his injury. He has become and remains unfit for work. The plaintiff misses the emotional satisfaction and enjoyment that his work previously gave him. I accept the medical opinions that he remains unfit to return to work.

110. The plaintiff’s reading, writing and spelling difficulties have made it difficult for him to readily obtain alternative employment. This is readily apparent from his unsuccessful attempt at training to use a computer as part of his rehabilitation programme.

111. The plaintiff stated that he believed he could not manage to work an 8 hour day . He experiences a feeling of pins and needles on the sides of his legs and he finds difficulty with sitting for too long. He finds other activities such as climbing stairs, walking on uneven ground, driving for sustained periods up to an hour and even stacking light objects to be aggravating factors for his back pain. His walking tolerance has been reduced to about 20 minutes following which he experiences pain in all of his back. He restricts his walking to 10 minutes to go to the local shops. Even then he finds the need to take a rest break from 10 minutes of walking. He now experiences some problems with his left knee and it feels as if it is going to give way on him and may cause him to fall. The plaintiff also has left knee pain which is worse than the knee pain he experienced before his injuries. He experiences back problems and difficulty with the simple task of putting on shoes and prefers laceless shoes for this reason.

112. The foregoing problems do not auger well for placing the plaintiff in alternative employment.

Mitigation issues

113. The plaintiff presents as a challenge for rehabilitation into alternative employment. This is because of background factors concerning his age, his prior history of injury, his limited abilities with regard to reading and writing and, more significantly, the effects of his disabilities which have already been described. In my view those disabilities significantly reduce his prospects for placement in alternative employment to carry out suitable light duties.

114. This challenge has been demonstrated by the failed attempts at rehabilitation by the workers’ compensation insurer. The plaintiff could not be trained for computer skills. Although he has not worked since his injury this has not been for want of trying. He has been looking for suitable work, including in car sales and has attempted many telephone interviews without success. He remains hopeful of finding some kind of work despite the medical opinions suggesting he is unfit. His optimism may well be misplaced.

115. I consider that the plaintiff has taken reasonable steps to endeavour to mitigate his post-injury situation. On the advice of rehabilitation providers the plaintiff has carried out rehabilitative exercises. I find that the plaintiff has made reasonable efforts to mitigate the effects of his injuries and therefore his damages should not be reduced on account of any alleged failure to mitigate his loss.

Probable life span

116. The plaintiff’s claim incorporates items of future losses for treatment and for domestic assistance. Any allowances for these items of expenditure requires projection over his remaining life span. The evidence does not disclose any reason why for assessment purposes the plaintiff’s future life span should be discounted for early or greater than average mortality. According to the prospective life tables, a male aged 58 years can expect an average life span of a further 27 years. Accordingly, I propose to project the plaintiff’s future losses over a period of 27 years. The 5 per cent multiplier for 27 years is x 783. I now turn to an assessment of the individual heads of damage claimed by the plaintiff.

D. DAMAGES ASSESSMENT

Non-economic loss

117. The plaintiff’s entitlement to damages for non-economic lost is governed by s 16 of the Civil Liability Act 2002. Given the plaintiff’s present age of 58 years, his ongoing back and knee problems, the related mobility and physical restrictions imposed on him concerning every day and commonplace activities as described in the medical opinions that I have accepted, I consider that an appropriate award of damages for non-economic loss to be 28 per cent of the most extreme case pursuant to the s 16 table that was applicable at the time of the commencement of the trial. This is the equivalent of $101,200. Accordingly, I assess the plaintiff’s entitlement to damages for non-economic loss in the sum of $101,200.

Past economic loss

118. The plaintiff’s claim for past loss of earnings is at the rate of $42,056 gross per annum for 152.57 weeks from 5 June 2006 until the commencement of the hearing on 5 May 2009. The sum of $42,056 per annum gross is the equivalent of $500 per week net. The loss of $500 per week net over 152.57 amounts to sum of $76,285 net. This calculation is based on the plaintiff’s income tax return for the year ended 30 June 2005.

119. I consider this to be a very conservative basis of calculation as it makes no allowance for increments that would have applied since the time of the injury. I consider that the amount claimed to be inherently reasonable and I therefore accept the submitted sum as the appropriate basis for calculation of the plaintiff’s damages for past loss of earning capacity.

120. The plaintiff has not worked since his injury. The preponderance of the medical evidence, which I have accepted confirms that the plaintiff has been unable to work in his pre-injury employment since that time. He has undertaken reasonable attempts to mitigate his loss of earnings and has co-operated with reasonable suggestions for treatment. In these circumstances I consider that the plaintiff should be compensated at the full rate that has been submitted on his behalf. Accordingly, I assess the plaintiff’s entitlement to damages for past loss of earning capacity in the sum of $76,285.

Future loss of earning capacity

121. The plaintiff remains unfit to resume his pre-injury employment. This is confirmed by the medical evidence that I have accepted. Notwithstanding that state of unfitness, he nevertheless remains hopeful that he may find some kind of non-arduous light work that does not require full and active physical duties and full hours of work. Guided by the medical evidence that I have accepted, I consider that the plaintiff is overly optimistic in his hope of finding and sustaining such employment. However, consistent with his expectations of finding work, he has conceded a residual future earning capacity of $100 net per week. This results in a claim for $400 net per week for future loss of earning capacity. I cannot see a sound basis in the evidence for such a concession but since that concession has been formally made by counsel on his behalf, I propose to give effect to the concession.

122. The plaintiff initially claimed future loss of earning capacity until age 65 years but in accordance with more current trends of work force participation this was later amended to claim loss of earning capacity to age 67 years. I consider the amended approach to be appropriate to the times and I propose to assess the claim for future loss of capacity over the remaining nine years to age 67 at $400 per week net less a 15 per cent discount for potential adverse vicissitudes.

123. The projection of $400 per week net at 5 per cent over 9 years (x 380.1) less 15 per cent for vicissitudes yields $129,234. Accordingly, I assess the plaintiff’s entitlement to damages for future loss of earning capacity in the sum of $129,234 .

Past loss of superannuation

124. Consistent with my finding that in the period between 5 June 2006 and the date of the hearing the plaintiff has lost earning capacity in the sum of $76,285 it is necessary to assess the value of the past loss of employer funded superannuation benefits. The convention is that in the absence of actuarial evidence of that loss, 11 per cent of the net sum awarded for past loss of earning capacity is taken to represent the loss for this head of damage. Accordingly, 11 per cent of $76,285 is the equivalent of $8,391. I therefore assess the plaintiff’s entitlement to damages for past loss of superannuation benefits in the sum of $8,391.

Future loss of superannuation

125. Consistent with my findings in respect of past net employer funded superannuation losses it is necessary to assess the value of the loss to the plaintiff of future employer funded superannuation benefits, I apply a similar convention of 11 per cent of the net sum awarded for future loss of earnings to represent the loss for this head of damage. Accordingly, 11 per cent of $129,234 is the equivalent of $14,215. I therefore assess the plaintiff’s entitlement to damages for future loss of superannuation benefits in the sum of $14,215.

Fox v Wood

126. The parties have agreed that the amount of tax paid by the plaintiff on his weekly worker’s compensation benefits amounts to $13,695. Accordingly, I assess the plaintiff’s entitlement to damages for the Fox v Wood component of his damages in the sum of $13,695.

Future treatment expenses

127. The plaintiff claims the sum of $10 per week to cover the likely cost of future treatment expenses. The evidence in support of such a claim is that the plaintiff will continue to take medication and will need to periodically see a doctor. The defendant submits that such a claim is not justified and no allowance should be made on this account.

128. I consider the amount claimed for future treatment expenses to be very modest and reasonable, especially when it is gauged against the treatment costs the plaintiff has incurred to date. I think it is appropriate to allow $10 per week towards the cost of medication and the cost of occasional medical and allied treatment. I therefore allow the claim. The projection of the sum of $10 per week at 5 per cent over 27 years (x 783) yields $7,830. Accordingly, I assess the plaintiff’s entitlement to damages for future treatment in the sum of $7,830.

Future domestic assistance

129. Although no claim is made for past domestic assistance, the plaintiff makes a claim for future paid domestic assistance for 2 hours per week for the remaining 27 years of his projected life span at the rate of $20 per hour which is the equivalent of $40 per week. The basis of the claim is that the plaintiff has difficulty with the heavier forms of housework such as mopping, cleaning and scrubbing the bathroom and toilet areas of his home and occasional heavier cleaning and the bending that is associated with those tasks. In the past he has been unable to afford to engage commercial cleaners but he has said that he wishes to obtain paid domestic assistance for the provision of such services in the future.

130. The defendant submits that this component of the plaintiff’s claim ought not be allowed because the work that is the subject of the claim is presently being performed gratuitously by the plaintiff’s son who for the moment lives with him and this situation is likely to continue. The defendant submits that no liability for the cost of such assistance has or will arise for the purpose of assessing damages.

131. To recover damages for the cost of such services the plaintiff must show that the need for the claimed services is an injury created need and that the services would not have otherwise been provided in any event. If this threshold entitlement is established, as I think it has, the claim should be assessed at the commercial cost of providing such services. The defendant concedes the plaintiff’s submission that the rate of $20 per hour represents a reasonable cost of such services. I consider that rate to be more than reasonable as it is less than the hourly rate provided by s 15 of the Civil Liability Act 2002 for the assessment of claims for past domestic assistance.

132. In my view the plaintiff is entitled to be compensated for the cost of future paid domestic assistance of the kind sought. I consider that the claim for 2 hours per week is reasonable for the activities described by the plaintiff in his evidence, particularly since the medical evidence discloses that he is unfit for work that involves repeated bending and because he has difficulties with bending tasks, for example, tying his own shoelaces. I consider that but for his injuries the plaintiff would not have required such assistance.

133. I reject the submission that the services that are presently being gratuitously provided by the plaintiff’s son are likely to continue to be provided by him in that manner. The evidence discloses that the plaintiff’s son is aged 28 years. I am not prepared to infer that the plaintiff’s son will continue to live with the plaintiff for a further 27 years and will continue to provide these services gratuitously. In my view the plaintiff is entitled to be compensated for the future commercial cost of these services because these costs address an injury based need caused by the negligence of the defendant.

134. The projection of the sum of $40 per week at 5 per cent over 27 years (x 783) yields $31,320. I do not propose to discount this sum as I do not consider there to be any cogent reason to infer that the plaintiff may have needed such services in the future in any event, as he grew older. Accordingly, I assess the plaintiff’s entitlement to damages for future domestic assistance in the sum of $31,320.

Past out-of-pocket expenses

135. The parties have agreed upon the amount representing the plaintiff’s reasonable past out-of-pocket expenses in the sum of $20,454. Accordingly, I assess the plaintiff’s entitlement to damages for past out-of-pocket expenses in the sum of $20,454.

Summary of damages assessment

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

(a) Non economic loss
$101,200

(b) Past loss of earnings
$76,285

(c) Future loss of earning capacity
$129,234

(d) Past loss of superannuation
$8,391

(e) Future loss of superannuation
$14,215

(f) Fox v Wood
$13,695

(g) Future treatment expenses
$7,830

(h) Future domestic assistance
$31,320

(i) Past out-of-pocket expenses
$20,454

Total
$402,624

Disposition

137. The plaintiff has succeeded on the issue of liability without any reduction of his damages on account of alleged contributory negligence. Nor has there been any reduction in the entitlement to damages on account of s 151Z(2) of the Workers’ Compensation Act 1987. I therefore assess the plaintiff’s entitlement to damages in the sum of $402,624.

Orders

138. I make the following orders:-

(a) Verdict and judgment for the plaintiff in the sum of $402,264;
(b) Defendant to pay the plaintiff’s costs;
(c) Exhibits may be returned;
(d) Liberty to apply on 7 days notice if further orders are required.

CITATION:	Chandra v Bunnings Group Ltd [2009] NSWDC 194
HEARING DATE(S):	5, 6 May and 18 June 2009
JUDGMENT DATE:	6 November 2009
JURISDICTION:	Civil
JUDGMENT OF:	Levy SC DCJ
DECISION:	1. Verdict for the plaintiff in the sum of $402,624. 2. Defendant to pay the plaintiff’s costs.
CATCHWORDS:	TORTS – negligence – occupier’s liability – slip and fall – plaintiff an employed delivery driver injured at premises occupied by defendant – plaintiff slipped whilst walking over submerged and concealed forklift tines covered by pooled water on the floor of a flooded warehouse access way to the car park – liability considerations – whether occupier negligent – whether “obvious risk” within meaning of s 5F of Civil Liability Act 2002 - PRACTICE AND PROCEDURE – adjournment – refusal of defendant’s application for an adjournment for purpose of obtaining a medical examination of plaintiff – consideration of mandatory requirements of s 56 of Civil Procedure Act 2002 - DAMAGES – assessment of multiple heads of damage under Civil Liability Act 2002
LEGISLATION CITED:	Civil Liability Act 2002
CASES CITED:	Angel v Hawkesbury City Council [2008] NSWCA 130 Dennis v Australian Broadcasting Corporation [2008] NSWCA 37 Presidential Security Services Pty Ltd v Brilley [2008] NSWCA 204 State of Queensland v JL Holdings Pty Ltd [1997] HCA; (1997) 189 CLR 146
PARTIES:	Joseph Chandra (Plaintiff) Bunnings Group Ltd (Defendant)
FILE NUMBER(S):	3844 of 2008
COUNSEL:	Mr R Goodridge (Plaintiff) Mr N Polin (Defendant)
SOLICITORS:	Firths – The Compensation Lawyers (Plaintiff) Wotton + Kearney (Defendant)

Head of Damage	Paragraphs
(a) Non economic loss	[117]
(b) Past loss of earnings	[118] - [120]
(c) Future loss of earning capacity	[121] - [123]
(d) Past loss of superannuation	[124]
(e) Future loss of superannuation	[125]
(f) Fox v Wood	[126]
(g) Future treatment expenses	[127] - [128]
(h) Future domestic assistance	[129] - [134]
(i) Past out-of-pocket expenses	[135]

(a) Non economic loss	$101,200
(b) Past loss of earnings	$76,285
(c) Future loss of earning capacity	$129,234
(d) Past loss of superannuation	$8,391
(e) Future loss of superannuation	$14,215
(f) Fox v Wood	$13,695
(g) Future treatment expenses	$7,830
(h) Future domestic assistance	$31,320
(i) Past out-of-pocket expenses	$20,454
Total	$402,624