Collopy v Parks Victoria (No 2)
[2024] VCC 1931
•10 December 2024
| IN THE COUNTY COURT OF VICTORIA AT GEELONG COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| GENERAL LIST |
Case No. CI-20-05851
| PETER ANTHONY COLLOPY | Plaintiff |
| v | |
| PARKS VICTORIA (ABN 95 337 637 697) | Defendant |
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JUDGE: | HER HONOUR JUDGE MYERS | |
WHERE HELD: | Geelong | |
DATE OF HEARING: | 29, 30 and 31 July; 1, 2, 5, 6, 7, 8, 9, 12, 13, 14 and 16 August 2024 | |
DATE OF JUDGMENT: | 10 December 2024 | |
CASE MAY BE CITED AS: | Collopy v Parks Victoria (No 2) | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1931 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Workplace injury – negligence – breach of statutory duty – course of work claim – contributory negligence – estoppel
Legislation Cited: Parks Victoria Act2018; Occupational Health and Safety Regulations2007 (Vic); Limitation of Actions Act 1958
Cases Cited:Jones v Dunkel (1959) 101 CLR 298; Blatch v Archer (1774) 98 ER 969; Commonwealth v Verwayen (1990) 170 CLR 394; Collopy v Parks Victoria [2024] VCC 159; Czatyrko v Edith Cowan University (2005) 79 ALJR 839; McLean v Tedman (1984) 155 CLR 306; Wyong Shire Council vShirt (1980) 146 CLR 40; Swain v Waverley Municipal Council (2005) 220 CLR 517; Southern Colour (Vic) Pty Ltd v Parr [2017] VSCA 301; Cotton OnGroup Services Pty Ltd v Golowka [2022] VSCA 279; East Metropolitan Health Service v Ellis [2020] WASCA 147; Pastras v Commonwealth (1966) 9 FLR 152; Sepe v Club Italia Sporting Club Inc (Ruling) [2023] VSC 191; Moore v Goldhagen [2024] VSCA 25; Tomasevic v State of Victoria [2018] VSCA 325; Tabet v Gett (2010) 240 CLR 537; Chol v Pickwick Group Pty Ltd [2023] VCC 66
Judgment: General damages awarded to the plaintiff in the sum of $5,000 for injury to the left shoulder sustained on 16 July 2008.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms S C Bailey with Ms S Fernando | Arnold Thomas & Becker |
| For the Defendant | Mr R Kumar with Ms J E Clark | Wisewould Mahoney |
HER HONOUR:
Introduction
1The plaintiff, Mr Peter Collopy, claims that he suffered injury to his low back, both knees, his left shoulder, both wrists, both hands and a consequential psychological injury in the course of his employment as a ranger with Parks Victoria between December 2006 and December 2013.
2The defendant, Parks Victoria, is a statutory authority of the Victorian Government governed by the Parks Victoria Act 2018. Parks Victoria employed Mr Collopy as a ranger to assist in the care and maintenance of the Great Ocean Walk (“the walk”).
3The walk is an approximately 100-kilometre coastal walk from Apollo Bay to the Twelve Apostles. It is described as providing:[1]
“… a challenging and diverse experience along some of Australia’s most spectacular coastline.
… spectacular coastal and forest scenery including rocky platforms, sheltered beaches, pristine estuaries, tall forests, heathland and coastal woodland.”
[1]Exhibit P1: Map of the Great Ocean Walk
4The walk travels from sea level to elevations of up to 270 metres above sea level.
5There are seven campsites for hikers on the walk to use. These have marked camping areas, shelters, camping tables, rainwater tanks and toilets.
6Mr Collopy alleges that his injuries were caused by the negligence and/or breach of statutory duty of Parks Victoria. He claims general damages for his injuries.
7Parks Victoria deny negligence and breach of statutory duty. If liable, Parks Victoria alleges Mr Collopy was contributorily negligent.
8For reasons that follow, I find that Parks Victoria breached its duty of care and breached its statutory duty; however, Mr Collopy has not satisfied his onus to establish that such breaches were a cause of his injuries except in respect of the minor injury he sustained to his left shoulder on 16 July 2008. Mr Collopy was not contributorily negligent. I assess pain and suffering damages in the sum of $5,000.
Background
9I believe the following matters are largely uncontroversial.
10Mr Collopy is aged sixty-four years. He lives in Regional Victoria with his wife. He has two adult children and two young grandchildren. He is right-hand dominant.
11Mr Collopy was an accomplished Australian Rules football player in his youth. During Year 12, Mr Collopy suffered injuries to both knees in the form of osteochondritis dissecans. At that time, he underwent surgery to both knees performed by Mr Brendan Dooley, orthopaedic surgeon.
12After completing high school, Mr Collopy attended La Trobe University and was awarded a Botany and Zoology degree.
13Following his graduation, Mr Collopy worked for approximately four years in medical research at St Vincent’s Hospital. He left that position for better paid work as a labourer and petrol station attendant. He did this to save money to travel overseas.
14On 10 April 1986, just a week or so before his planned overseas travels, and whilst working as a labourer on a building site, Mr Collopy stepped backwards into a trench and fell about three metres onto a pipe, injuring his lower back. Apart from discussing his back injury with his father (who was a surgeon), Mr Collopy did not have any treatment for his back injury at that time.
15Mr Collopy continued with his planned travels overseas. He met his wife in Portugal and travelled to her home in Sweden. Thereafter, Mr Collopy lived in Sweden but spent time in Australia.
16Whilst living in Sweden, Mr Collopy worked for himself, proofreading and translating scientific and academic material.
17Mr Collopy had lower back pain from the time of his 1986 injury, which was periodically severe.
18On 6 December 1989, Mr Collopy underwent an L3-4 posterior lumbar interbody fusion performed by Mr Stan Schofield, orthopaedic surgeon.[2] Although the surgery led to some initial improvement in his lower back symptoms, Mr Collopy did not have a good result from that surgery.
[2]Exhibit P27: report of Mr Schofield dated 6 March 1990
19In 1991, Mr Collopy underwent a re-do fusion at L3-4, again performed by Mr Schofield. Mr Collopy said that he had a good result from that surgery. In evidence, he said that he resumed his sporting activities after recovering from the surgery. Those activities included surfing, cycling, bushwalking, skiing, tennis and football.
20In 1999, whist in Sweden, Mr Collopy was bitten by a tick and suffered neurological symptoms including memory problems and semi-paralysis on the left side. His recollection was that with treatment, those issues resolved within four to six weeks.
21In about 2002, Mr Collopy moved back to Australia with his family and has been based here since that time.
22After returning to Australia, Mr Collopy obtained employment with an organisation called Indigenous Design. His role involved office-based land management tasks as well as some hands-on planting and weed removal.
23In 2003, Mr Collopy suffered an injury to his right shoulder in a fall. Within a week of suffering that injury, he underwent arthroscopic surgery performed by Mr Francis Lyons, orthopaedic surgeon. Mr Collopy said that he had a good outcome from that surgery and did not have issues with his right shoulder over the following years.
24In mid-2005, Mr Collopy said that he was headhunted by Parks Victoria. In September 2005, he began working for Parks Victoria as an indigenous strategy and programming officer. Unfortunately, there were interpersonal issues between Mr Collopy and his manager/s. Mr Collopy believed he was bullied. As a result, Mr Collopy sought other positions within Parks Victoria.
25On 24 November 2006, Mr Collopy was offered the position of ranger on the walk, to commence on 11 December 2006.[3] The role was based at the Apollo Bay depot, and he reported to Brett Manders, tracks team leader.
[3]Exhibit D3: letter dated 24 November 2006 from Parks Victoria to Mr Collopy regarding internal fixed term appointment
26Mr Collopy said that his health was “pretty good” when he started working as a ranger. He said he was not suffering from any significant symptoms from his prior bilateral knee, lower back or right shoulder injuries. He said he was surfing, cycling, bushwalking and working.[4]
[4]Transcript (“T”) 140
27Although his role started in December 2006, Mr Collopy only began undertaking work on the walk in January 2007.
28Between 4 December 2007 and 30 June 2008, Mr Collopy took extended leave, including six months’ leave without pay, to work on a project being run by his brother at Cape Otway (referred to in this proceeding as the “Lighthouse Project”).[5]
[5]Exhibit D7: memorandum dated 21 November 2007 from Mr Collopy to the chief executive, regional manager, district chief ranger and ranger in charge of Parks Victoria regarding extended leave without pay application
29From around 2007, Mr Collopy believed there were interpersonal issues in the workplace. He lodged grievances which were the subject of investigations.
30On 27 February 2011, Mr Collopy experienced lower back pain after performing weeding with others on the track.[6] He subsequently submitted a Worker’s Injury Claim Form in respect of that injury.[7] The claim was accepted.
[6]Exhibit P13: OHS Incident/Hazard Injury Report dated 10 March 2011 in relation to an incident on 27 February 2011
[7]Exhibit P12: Worker’s Injury Claim Form signed by Mr Collopy on 3 March 2011
31Following Mr Collopy’s injury in February 2011, he was unable to work for several weeks. When he returned to work, he no longer performed any brush cutting or Whipper Snipping, and he had a lifting limit of 20 kilograms.
32On 16 April 2012, Mr Collopy underwent a left shoulder arthroscopy, subacromial decompression and rotator cuff repair performed by Mr Graeme Browne, orthopaedic surgeon.
33Mr Collopy last actively worked for Parks Victoria in December 2013. He ceased work at that time due to psychological injury caused by his workplace grievances.
34On 24 January 2014, Mr Collopy submitted a Workers Injury Claim Form for stress and anxiety due to “years of issues caused by poor management, including false accusations and allegations, inappropriate discipline and more, have caused me anxiety which is now chronic”.[8] The claim was accepted.
[8]Exhibit D4: Worker’s Injury Claim Form signed by Mr Collopy on 24 January 2014
35Mr Collopy has not worked in any capacity since December 2013. He continues to be in receipt of weekly payments for the January 2014 claim.
36In April 2016, Mr Collopy’s employment with Parks Victoria was terminated.
37After his employment was terminated, on 5 December 2016, Mr Collopy completed a Worker’s Injury Claim Form alleging that he suffered an aggravation and/or acceleration of injuries to his left shoulder, both knees, and bilateral carpal tunnel syndrome performing his usual duties in the course of his employment.[9] That claim was rejected.
[9]Exhibit P15: Worker’s Injury Claim Form signed by Mr Collopy on 5 December 2016
38Mr Collopy issued proceedings in the Magistrates’ Court and the matter was referred to the Medical Panel. Subsequently, a Medical Panel determined that Mr Collopy’s work duties were a significant contributing factor to his bilateral knee, low back, left shoulder and upper limb injuries.
The issues
39The following issues arise for determination:
(a) What findings should be made about the reliability of the lay witnesses?
(b) What, if any, Jones v Dunkel[10] inferences arise?
[10](1959) 101 CLR 298
(c) What were the nature and extent of Mr Collopy’s pre-existing medical conditions in December 2006?
(d) What were the nature of Mr Collopy’s work duties on the walk between January 2007 and December 2013?
(e) What systems, procedures and equipment did Parks Victoria have for the performance of Mr Collopy’s work duties?
(f) Is Mr Collopy estopped from relying upon complaints made to Parks Victoria?
(g) What duty of care did Parks Victoria owe to Mr Collopy?
(h) What was the relevant risk of injury against which Parks Victoria is alleged to have failed to take adequate steps to protect Mr Collopy?
(i) Was the relevant risk of injury reasonably foreseeable by a person in Parks Victoria’s position?
(j) What was the content of the duty of care owed by Parks Victoria to Mr Collopy in respect of that risk?
(k) Did Parks Victoria fail to take the reasonable and appropriate precautions which it should have taken to avert the relevant risk?
(l) Was any breach of duty a cause of injury to Mr Collopy? If so, which injury?
(m) Which of Mr Collopy’s duties involved hazardous manual handling?
(n) Did Parks Victoria breach its statutory duty in respect of hazardous manual handling?
(o) Was any breach of statutory duty a cause of injury to Mr Collopy? If so, which injury?
(p) Was Mr Collopy contributorily negligent? If so, by what percentage?
(q) What was the nature and extent of injury suffered by Mr Collopy?
(r) In what sum should general damages be assessed, if applicable?
Overview of the evidence
40The following witnesses gave oral evidence:
(a) In Mr Collopy’s case – Mr Collopy; his wife, Marge Elena Collopy (“Elena”); his brother, Richard Collopy, and his general practitioner (“GP”), Dr Mani Kutti;
(b) In Parks Victoria’s case – former ranger in charge, William Cox; former acting ranger in charge, Andrew Gardiner; former field services officer, Nathan Browne; rheumatologist, Dr Tony Kostos, and orthopaedic surgeon, Mr Rodney Simm.
41Various documents, maps, photographs, answers to interrogatories, clinical records and medical reports were also tendered.
42The parties also agreed that Parks Victoria’s discovered documents did not include:[11]
(a) any Job Safety Analysis (“JSA”) for the task of brush cutting prior to 2009;
(b) timesheets for Mr Collopy between January 2007 and 1 July 2008, and 1 August 2009 and 19 June 2011;
(c) pages 3 to 5 inclusive of Exhibit P11: OHS Incident/Hazard/Injury Report & Investigation.
[11]T1257
What findings should be made about the reliability of the lay witnesses?
43The events at the heart of this case occurred between eleven and seventeen years ago. All the witnesses struggled to remember relevant matters, given the significant passage of time. The reliability of the evidence of all the lay witnesses was affected because of this. Therefore, I have generally looked to objective, contemporaneous documents as a more reliable repository of fact.
Mr Collopy
44I found Mr Collopy to be a sincere witness who endeavoured to answer questions accurately. He gave his evidence in an apparently considered but expansive manner. He made concessions against interest. I am satisfied that he was an honest witness.
45However, there were issues with the reliability of some of Mr Collopy’s evidence. For example:
(a) When cross-examined about his attendances upon his GP in May 2008 for low back, left shoulder and right knee pain, Mr Collopy was prepared to speculate that his increased symptoms in the prior weeks may have been due to increased workload in his role as a ranger.[12] It subsequently became apparent that Mr Collopy had taken approximately six months away from his Parks Victoria role between December 2007 and July 2008. He was not performing his ranger duties in May 2008, and had not been for some months;[13]
(b) His evidence about the number of occasions each year that he was required to transport barrels of sawdust or sawdust to campsites varied. In his evidence-in-chief, Mr Collopy said that he took barrels of sawdust to the campsites approximately thirty times a year, typically on his own.[14] In cross-examination, Mr Collopy said that he had not meant to imply that he was the only person transporting the sawdust.[15] Later in cross-examination, Mr Collopy said he could not give an accurate figure for the frequency with which he did that task;[16]
(c) Mr Collopy said he worked thirty rostered weekends a year;[17] however, the timesheets tendered for the 2008/2009 year reveal that Mr Collopy worked nineteen weekends. Further, Clause 8.4 of the Parks Victoria Agreement 2004 generally provided for a maximum of forty weekend days per annum.[18] In addition, I note that the Parks Victoria, Acknowledgment of Work-Life Balance Plan signed by Mr Collopy on 27 September 2012 recorded that Mr Collopy worked “40 rostered weekend days per annum”.[19] I find that Mr Collopy is mistaken as to the number of weekends he worked each year. I find that it is more likely he performed a maximum of forty weekend patrol days; that is, he generally worked twenty weekends each year;
(d) Mr Collopy’s evidence about throwing cut branches and vegetation off the track weighing as much as 100 kilograms.[20] In cross-examination, Mr Collopy accepted that he did not in fact throw heavy logs but would roll them off the track;[21]
(e) Mr Collopy’s evidence that by December 2013 there were some days that he would not leave home because he “couldn’t walk any more”.[22] In contrast, the contemporaneous material from his GP was that in August 2013, all limb and spine movements were normal, he was fit for his pre-injury duties, and it was high work stress that troubled him in December 2013.
[12]T420, T425 and T433
[13]T431-T432 and Exhibit D7
[14]T244 and T246
[15]T345
[16]T382
[17]T154-T155
[18]Exhibit P25 at page 34
[19]Exhibit D37
[20]T161-T162
[21]T562-T563
[22]T270
46I bear steadily in mind that Mr Collopy has a significant chronic psychological condition, which is separate from the claimed consequential psychological condition which formed part of this proceeding. That condition arose in the context of Mr Collopy’s workplace grievances with Parks Victoria. Those issues arose in 2005, escalated in about 2010 or 2012, and finally led to Mr Collopy ceasing work in December 2013. It was plain from Mr Collopy’s evidence that he remains distressed and aggrieved by many aspects of his employment at Parks Victoria.
47My impression was that Mr Collopy has ruminated about the issues relevant to this proceeding over many years and has reconstructed some matters. I do not find this to be deliberate, but rather a function of poor memory, the sheer effluxion of time, and his ruminating behaviour.
48I therefore approach Mr Collopy’s evidence with caution and look for objective contemporaneous evidence where possible.
Elena Collopy
49Mrs Collopy’s evidence supported Mr Collopy’s account of the extent of his recovery from his bilateral knee surgeries, and low back surgeries, and Mr Collopy’s lack of symptomatology and active lifestyle prior to commencing the as a ranger in December 2006.
50Mr Collopy moved to Apollo Bay when he started as a ranger. His wife remained in Melbourne. For about two years they lived apart but saw each other on alternate weekends. Either Mr Collopy would travel to Melbourne or Mrs Collopy would travel to Apollo Bay. When Mrs Collopy went to Apollo Bay, she sometimes accompanied Mr Collopy on a weekend patrol.
51Mrs Collopy gave evidence as to the symptoms she was aware her husband began experiencing from the start of his role as a ranger.
52Mrs Collopy acknowledged that the passage of time made it hard to identify the timing of the onset of symptoms but was firm in her recollection that Mr Collopy began to experience symptoms in both knees and his back during 2007.
53I generally accept Mrs Collopy’s evidence.
Richard Collopy
54Mr Richard Collopy is one of Mr Collopy’s younger siblings. They have a close relationship, seeing or speaking to each other regularly.
55Richard Collopy contracted to Parks Victoria at times, and relevantly was the driver and creative mind behind the Lighthouse Project and two projects designing furniture for the walk.
56Richard Collopy was a somewhat garrulous witness.
57Richard Collopy broadly corroborated Mr Collopy’s account of his physical activities prior to December 2006 and that he had an onset of symptoms after starting work as a ranger. He acknowledged that the passage of time caused him to have difficulty remembering what symptoms his brother complained of and when.
58I generally accept his evidence.
William Cox
59Mr Cox has been employed by Parks Victoria in various roles since 1996. His current role is as Manager, Regional Delivery for the Western Region.
60He was the ranger in charge of the walk when Mr Collopy started as a ranger. He left that position in mid-2008. Mr Collopy did not report directly to Mr Cox, but to a team leader who reported to Mr Cox.
61Given that Mr Collopy was on leave without pay between December 2007 and 30 June 2008, Mr Cox was likely the ranger in charge of him only during the period January to December 2007.
62Mr Cox gave general evidence about procedures for the induction of new staff, JSAs, toolbox meetings, occupational health and safety meetings, management of the walk, and the use of contractors. He was not able to comment specifically on the work Mr Collopy performed.
63Mr Cox confirmed the role of ranger was very physical.
64I generally accept his evidence.
Andrew Gardiner
65Mr Gardiner was first employed by Parks Victoria in 2006 as a team leader, based at the Forest depot. He transferred to the Apollo Bay depot in early 2008 as team leader in the West Otways’ team. He became the acting ranger in charge when Mr Cox left the Apollo Bay depot. Mr Gardiner acted in that role for six to eight months. Thereafter, he resumed his role of team leader in the West Otways’ region.
66In late 2009, Mr Gardiner took on the occupational health and safety (“OH&S”) representative role at the Apollo Bay depot. He continues in the roles of team leader for the West Otways’ region and OH&S representative at the Apollo Bay depot.
67Mr Gardiner gave evidence about his involvement with Mr Collopy while he was acting ranger in charge, and in his role as OH&S representative. He gave some general evidence about the work of the rangers on the walk.
68Mr Gardiner acknowledged the difficulty remembering specific matters from many years ago.
69I generally accept his evidence.
Nathan Browne
70Prior to November 2005, Mr Browne worked as a contractor on the construction of the walk. Between November 2005 and September 2008, Mr Browne was employed by Parks Victoria at the Apollo Bay depot as a field services officer.
71Mr Browne’s role was initially across both the Great Otway National Park team and the walk team. In about January 2006, he transferred to the walk team full time and also became the OH&S representative.
72Mr Browne said that he recalled Mr Collopy primarily performed work at the depot rather than on the track in the period that their roles overlapped; that is, from January to December 2007, and from July to September 2008. I do not accept Mr Browne’s evidence on this issue:
(a) First, Mr Browne’s evidence was based on his present memory of Mr Collopy’s work duties in 2007 and for a period in 2008. Prior to July 2024, he had not been asked to recall these matters. He had not made a statement from which he could refresh his memory. I do not doubt that Mr Browne was honestly endeavouring to recall the amount of time Mr Collopy worked on the track as opposed to working in the depot, but given the passage of time, I find his memory is unreliable;
(b) Second, his recollection does not accord with the timesheets for the period July to September 2008;
(c) Third, Mr Browne was not Mr Collopy’s line manager and there is no particular reason that he would have been monitoring Mr Collopy’s movements with any precision;
(d) Fourth, Mr Browne’s evidence did not accord with the evidence of Mr Cox or Mr Gardiner.
73Mr Browne gave evidence as to the work performed by rangers and field services officers on the walk, and regarding the OH&S committee. I generally accept his evidence on those matters, which broadly accords with the other evidence.
What, if any, Jones v Dunkel inferences arise?
74Leading Counsel for Mr Collopy submitted that there was an unexplained failure by Parks Victoria to call evidence from Brett Manders, Tina Garrett, “Roslyn”, “Crispian”, and Simon Mugavin. It was submitted that an inference ought to be drawn that their evidence would not have assisted Parks Victoria.
75Leading Counsel for Parks Victoria submitted there was an unexplained failure to call Mr Collopy’s various treating practitioners, including his other GPs and Mr Lyons, orthopaedic surgeon.
76Brett Manders was Mr Collopy’s team leader from the start of Mr Collopy’s employment. He was responsible for training Mr Collopy. The evidence was that Mr Manders is no longer an employee of Parks Victoria. Mr Browne said that he was still in touch with Mr Manders. There was no explanation for the failure to call him.
77Tina Garrett was initially employed by Parks Victoria on the summer crew on the walk. She remains employed by Parks Victoria in the role of ranger on the walk. There was no explanation for the failure to call Ms Garrett.
78There was some reference to Simon Mugavin, and persons named “Roslyn” and “Crispian” during the trial, but their involvement in relevant matters appeared to be peripheral.
Findings as to Jones v Dunkel inferences
79In Blatch v Archer,[23] Lord Mansfield said that “all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted”.
[23](1774) 98 ER 969 at 970
80The principles in Jones v Dunkel are well known and were not in dispute. If there is an unexplained failure to call a witness whom a party may be expected to call, the court may infer the witness’s evidence would not have assisted the party and may draw an inference unfavourable to that party more readily.
81I bear in mind that there is no property in a witness.
82On the available evidence, I am not prepared to find that Simon Mugavin, “Roslyn” or “Crispian” could properly be considered to be in Parks Victoria’s “camp”.[24] In any event, their evidence appeared to be of marginal relevance to the issues in the case.
[24] T753: Mr Collopy stated “Crispian” is his relative
83I am also not prepared to draw an adverse inference in respect of Mr Collopy’s failure to call his other GPs or Mr Lyons. Dr Kutti was able to speak to the content of the clinical records. Correspondence from Mr Lyons was tendered.
84I find that there was no explanation for the failure to call Mr Manders and Ms Garrett. They are both witnesses Parks Victoria may have been expected to call. Mr Manders could have spoken regarding Mr Collopy’s training. Both Mr Manders and Ms Garrett could have given evidence regarding the work Mr Collopy performed. In the circumstances, I draw the inference that their evidence would not have assisted Parks Victoria. Further, I more readily draw inferences, otherwise available on the evidence, on matters upon which Mr Manders and Ms Garrett could have cast light.
What were the nature and extent of Mr Collopy’s pre-existing medical conditions in December 2006?
85I deal here with the symptomatology Mr Collopy says he experienced prior to commencing work as a ranger. I will consider the medical evidence later in these reasons.
Bilateral knees
86Mr Collopy denied any ongoing symptoms of significance in his knees prior to 2007. His evidence was that he had not sought or received any treatment for any condition in his knees since his teenage years. He said that his knees would ache from time to time, but he just regarded this as normal.[25]
[25]T312
87Mr Collopy’s evidence was corroborated by the evidence of his wife[26] and his brother.[27]
[26]T581
[27]T788
88Leading Counsel for Parks Victoria submitted that the evidence supported a finding that Mr Collopy experienced significant pain in his knees since the surgeries in his teens. This submission was primarily founded upon a history recorded in a neuro clinical psychological assessment report of Dr Therese Clark, clinical neuropsychologist, dated 28 November 2007, in which it was noted:[28]
“… Medical history includes smashed vertebra and subsequent spinal fusion following a fall in 1986, two knee reconstructions and a right shoulder reconstruction. He reported that he had been managing with high levels of pain since his knee reconstructions in his 20’s. This had been a source of disappointment for him as it had meant he had not achieved the physical things that he had wanted. … .”
(emphasis added)
[28]Exhibit D1
89Clinical records are to be approached with caution. They are not the records of the patient and are produced for treatment purposes. They are not a verbatim account of the relevant exchange with the doctor.
90The above is the only evidence of continuing significant pain in Mr Collopy’s knees in the period leading up to December 2006. If Mr Collopy had experienced symptoms of that severity for such a long period, one would have expected there to be evidence of attendances upon medical practitioners and treatment. Further, the account recorded by Dr Clark stands in stark contrast to the oral evidence of Mr Collopy, his wife and his brother.
91In the circumstances, I prefer the evidence of Mr Collopy, his wife and his brother, that he was not experiencing any symptoms of significance in either knee when he started as a ranger in December 2006. He had not sought treatment for his knee condition for many years.
92I find that as at December 2006, Mr Collopy experienced intermittent symptoms in his knees, for which he did not seek medical attention. Those symptoms did not interfere with his ability to work, pursue his activities of daily living or his various hobbies.
Low back
93Mr Collopy denied any ongoing problems of significance in his low back in the years prior to starting to work as a ranger. He said his back would ache from time to time, but any symptoms he had did not interfere with his activities of daily living, his ability to work or his capacity to enjoy his various sporting interests.[29]
[29]T312
94This account was corroborated by his wife[30] and his brother.[31]
[30]T581, T582 and T584
[31]T789 and T790
95I accept Mr Collopy’s evidence that he experienced an ache in his low back from time to time prior to December 2006, which required no treatment, and did not interfere with his ability to work, perform his activities of daily living or enjoy his active hobbies.
Left shoulder, hands and wrists
96Mr Collopy denied any prior injury or symptoms in his left shoulder, hands and wrists.
97That evidence was not challenged by Parks Victoria. I accept it.
What were the nature of Mr Collopy’s work duties on the walk between January 2007 and December 2013?
98The parties were generally agreed that the work of a ranger on the walk involved performing a variety of tasks. The issue was the extent and frequency with which particular tasks were performed by Mr Collopy.
99Mr Collopy’s duties including patrolling, maintaining the track and campsites, repairing infrastructure, installing signs, bollards and furniture (such as benches) from time to time, engaging with visitors, writing track notes, performing fire duties, participating in indigenous forums, engaging with school groups and volunteers, occasionally assisting in rescue operations and performing tasks at the depot.
100The Apollo Bay depot was located near to the start of the walk at Apollo Bay. Mr Collopy would generally start each day at the depot. If he was required to go to the furthest part of the walk from the depot, the drive took approximately 75 minutes.
101Mr Collopy said that when he started working on the walk, there were two full-time employees – his team leader and himself – and an employee who spent half his time on the walk and half his time working for the Great Otway National Park. In addition, there was a full-time summer crew of four employed for about six months from approximately November to May. There were also administrative staff who worked at the depot.
102From time to time, volunteers assisted in the work on the walk, either in groups or individually.
103Mr Collopy generally worked five days a week. A normal working day was from 8.00am to 4.30pm. If Mr Collopy worked beyond those hours, he would be given time off in lieu.[32] At some point, Mr Collopy moved to a nine-day fortnight, working slightly longer hours to have the tenth day off.
[32]T156
104On days when Mr Collopy was performing work on the track, he would drive to the closest entry point. Some parts of the walk were readily accessible by vehicle, and others were not.
105Generally, weekend work comprised patrols. Following a patrol weekend, Mr Collopy would have either the Monday/Tuesday or Thursday/Friday of the following week off in lieu. Mr Collopy said that patrol work was generally performed alone and included driving to the campsites to check them.
106Maintenance of the track included:
(a) Weeding, pruning, brush cutting, and Whipper Snipping;
(b) Digging and shaping drains;
(c) Re-shaping the track where it had become barrelled;
(d) Maintaining and repairing rock and wooden steps, timber bridges and railings;
(e) Installing, repairing and maintaining signs, furniture and bollards;
(f) Clearing fallen trees;
(g) Repairing and/or relocating the track after landslips.
107Mr Collopy said that when performing a walking patrol, he would carry a small backpack containing his lunch, water, a radio and a first aid kit.[33] He would carry a shovel, handsaw and secateurs. He said that photograph 16 in Exhibit P17 showed him in his “travelling light” outfit.[34]
[33]T552
[34] T192
108When performing other tasks, he would need more equipment. For instance for brush cutting, Mr Collopy said he needed to carry the brush cutter, a rake, fuel, a toolkit, and personal protective equipment in addition to his usual backpack.
109Some of the campsites were easier to access by vehicle than others. Access to several of the campsites was more difficult in the winter.
110Maintenance of the campsites included:
(a) Re-shaping the camp pads;
(b) Clearing;
(c) Ensuring there was sawdust and toilet paper for the toilets;
(d) Checking the rainwater tanks and taps;
(e) Repairing and maintaining shelters and furniture;
(f) Cleaning the solar panels and roofs of the toilets and shelters.
111The extent to which Mr Collopy performed manual work on the track and at the campsites as opposed to other work at the depot was in issue.
112Leading Counsel for Mr Collopy submitted that the fact that he could describe the physical tasks in detail was an indicator that he had performed those tasks. So much can be accepted; however, the issue is not whether he ever performed the tasks, but the frequency with which he did the various tasks over the period of his employment.
113Mr Collopy’s evidence as to the frequency with which he performed manual work on the track over the period January 2007 to December 2013 was unsatisfactory. For example:
(a) Mr Collopy said he did most of the digging of drains.[35] When asked to describe the frequency with which he performed the task, Mr Collopy said:[36]
[35]T240
[36] T159
“I couldn’t give you a figure. Every time I did a track inspection, I had a shovel. It’s like, this is daily, if not weekly thing and as winter progressed, I could be stuck on a track section for a week, just trying to keep that in some sort of shape. Even though hiker numbers were less … so it’s a lot of work.”
(b) Regarding cross drains, Mr Collopy said:[37]
[37] T159
“I had to dig them all … it takes one footprint to push through a drain, one foot. It’s a soft track, so it’s a lot of work.”
(c) Regarding barrelling of the track, Mr Collopy said:[38]
[38] T158-T159
“I had to keep shaping the track … I had to just address it as quickly as I could and unfortunately I could get land slips on that track of a couple of tonnes of earth.”
(d) Mr Collopy said land falls were[39] –
[39] T160-T161
“… a constant along a natural earth track … That top was always coming down and especially anywhere near watercourses and I’m talking maybe four or five tonnes sometimes and it would be my job - I’d get a report that it’s happened … I’d assess it … some of them are a bit like mini avalanches. All the vegetation comes down, trees and everything. I’d have to saw off the veg[etation] and then I’d have to work out, rock, dirt, can I make a new track out of here?
…
Up until mid 2009, regardless of the size of the tree, I had to hand saw it. I stopped probably about 30cm, trunks like that, I couldn’t get through any more than that. So unless I could wait around, and I couldn’t, maybe days for some other team member who was chainsaw trained, I had to hand saw it and throw it off the track, before I even got to do the land slip.”
(e) Mr Collopy said he would sometimes perform brush cutting with others, and sometimes alone. When asked to estimate the frequency with which he performed brush cutting in the period January 2007 to February 2011, Mr Collopy said:[40]
[40] T165
“Okay, I’m going to have to do a very rough average. I’d say three to four days a week, yeah … I’m talking full days, so that might be part - so adding up, three or four full days.”
(f) As to hand sawing, Mr Collopy said:[41]
[41] T162
“So if you had all day to cut something, which I never did, I could carry a log or something and put it into the bush but I didn’t have time. … I had to throw it places … So left arm was throwing, throwing, saw/throw, saw/throw. It’s just a repetitive - unsustainable.”
(g) Regarding the weights he had to saw and throw, Mr Collopy said:[42]
[42] T162
“Up to 100 kilos maybe. I had to get it off the track, nobody cared how. My job [was] to get it off the track.”
(h) As to work in the campgrounds, Mr Collopy said:[43]
[43] T169-T171
“I had to do drains around all of them [the camp pads] … there’s a lot of shaping work there … If a camper had burnt a table I had to replace the bits of it. … we had taps that were always being vandalised, I had to replace the taps … those [tank] pipes could get vandalised as well. So may time I’ve been carrying in, you know, 5 metre long PVC pipes and glues and saws … Then you get up to the roof and you’ve got all these drains [that] had to be cleared all the time because they are all under trees. … .”
(i) As to timber steps, Mr Collopy said:[44]
“They were always being replaced. I always had to replace them.”
(j) As to assisting hikers, Mr Collopy said:[45]
“I’ve had to carry people … So I’d get them to sometimes run 100 metres, stop, jump on my back, and get across that estuary and then go back and get somebody else, that sort of thing. … .”
[44] T187
[45] T160
114Time sheets were tendered for the thirteen-month period between 1 July 2008 and 31 July 2009.[46] Aspects of the timesheets were completed by accepting options in a dropdown box. It is clear from the content that the “NOTES” section of the timesheets was not filled from a dropdown box.
[46]Exhibits D31 and D 32
115Mr Collopy’s evidence was that there was little room to describe the tasks undertaken in a day on the timesheet. For instance he said that where “depot” only was recorded, he may also have done some trackwork, and generally the brief description may not have accurately captured the variety of work performed on any particular day. Whilst I accept that evidence in a general sense, the nature of the entries supports a finding that the description broadly reflected Mr Collopy’s main activities on a given day.
116Mr Cox said that the main role of a ranger was to be on the track, performing maintenance and engaging with visitors.[47] The expectation was that they would be on the track more than in the office. He said this varied with the seasons. Four days a week on the track in the better weather, and perhaps only two days a week on the track in the winter. Mr Cox accepted that the work of a ranger was “very physical”. He described the job as “hard core” and said he was not surprised the staff were exhausted.[48]
[47]T832
[48]T838
117Mr Gardiner accepted that the role of ranger required various tasks to be performed on the track. Spring and summer were the times when the growth was greatest, and the track was busiest. Mr Gardiner said he rarely worked with Mr Collopy on maintenance duties on the walk.
Findings regarding the work duties
118I found Mr Collopy’s evidence as to his work duties hard to follow. In his evidence-in-chief, he described various tasks that he performed across the six-and-a-half years he worked on the track. It became apparent that some tasks were performed often and some infrequently. It was difficult to get a sense of the extent to which Mr Collopy performed any particular work duty.
119Often when Mr Collopy described a task, my impression was that he had a tendency to overstate the nature and extent of the task he performed. By way of example, I do not accept Mr Collopy’s evidence that on average, he performed three to four full days of brush cutting each week.
120The evidence of Mr Cox and Mr Gardiner confirmed, in broad terms, the type of duties being performed by a ranger on the walk; however, they rarely worked in the field with Mr Collopy.
121Mr Cox and Mr Browne ceased working on the walk in July and September 2008, which was quite early in Mr Collopy’s period of employment.
122Mr Gardiner continues to work as a team leader based at the Apollo Bay depot, but in a different team. Where his evidence and the evidence of Mr Collopy conflicted regarding vehicle access to the various camp sites, I prefer the evidence of Mr Gardiner. I find that there was some confusion in Mr Collopy’s evidence between access when performing track inspections and vehicle access.
123I prefer the evidence of Mr Cox, Mr Gardiner and Mr Browne as to the frequency with which brush cutting was performed, that is generally three or four times a year, and infrequently in the winter.
124I find that the work Mr Collopy performed varied from day to day, from week to week and from season to season. Doing the best I can, I find that on average, Mr Collopy would spend about three days out of five each week performing patrolling and manual work on the walk. The remainder of his time was spent performing tasks at the depot, including developing track notes and performing administrative tasks. This broad mix of work activities was born out by the tendered timesheets.
125I accept Mr Collopy’s evidence that he often worked alone. He was generally alone when performing weekend patrols and was more often than not alone when he worked on the track during the week.
126I find that in the period 2007 to 2011, most Whipper Snipping and brush cutting was performed by the summer crew. Mr Collopy joined in with the summer crew periodically.
127I accept that from time to time prior to February 2011, Mr Collopy performed Whipper Snipping and brush cutting alone between April and October.
128Mr Collopy did not perform any Whipper Snipping or brush cutting after suffering his back injury in February 2011.
129I find that there were occasions when Mr Collopy performed chain sawing alone after he had been trained in the use of a chainsaw (which appears to have been in 2009).
130I find that from time to time, Mr Collopy transported 20-litre containers to the boot wash stations. The distance he carried the containers and the means by which he did so varied. Sometimes he was able to transport the 20-litre containers on a trolley, but I accept there were times that he carried a 20-litre container in each hand. On the evidence, I am unable to determine how often this was, the distance/s over which he did so, or indeed when this happened.
What systems, procedures and equipment did Parks Victoria have for the performance of Mr Collopy’s work duties?
131Mr Collopy said that he completed OH&S and cultural diversity training when he started work at Parks Victoria. He said that the only additional training he underwent prior to commencing his ranger role, was fire training.[49]
[49]T140
132A significant issue in this case was what JSAs were in place and operative for the performance of Mr Collopy’s work duties. The determination of this issue is affected by the passage of time and the unavailability of documents.
133Mr Collopy recalled the following about JSAs:
(a) He was told of the existence of a collection of JSAs in the conference room at the Apollo Bay depot;[50]
(b) He recalled a supervisor going through the JSAs, and said:[51]
“It was a fairly serious business, it was supposed to capture all of what the JSA had on it before staff went out to work on that, with that tool or with that … prior to them commencing work for that.”
[50]T457
[51]T758
(c) He was aware of a track work maintenance JSA from the start of his employment as a ranger;[52]
(d) He was shown a manual handling JSA in his induction;[53]
(e) He was shown a JSA that encompassed the task of brush cutting and Whipper Snipping in early January 2007, “before I touched a brush cutter”.[54]
(f) Mr Collopy could not recall seeing the brush cutting/Whipper Snipping JSA dated 6 November 2008 during his employment with Parks Victoria;[55]
(g) He was shown a manual handling JSA that belonged to the Great Otway National Park, but this was later in his employment. Mr Collopy used a similar JSA as a template;[56]
(h) In August 2008, Mr Collopy completed a JSA for coastal tree removal with a group called Conservation Volunteers Australia;[57]
(i) He completed a JSA for the second furniture project;[58]
(j) When Mr Collopy prepared a JSA, he provided a copy of it to the OH&S representative at the next OH&S meeting so it could be reviewed;[59]
(k) He was aware of a JSA for use of a quad bike;[60]
(l) He was aware of a JSA for use of a chainsaw;[61]
[52]T572 and T768
[53]T764
[54]T201
[55]T221, and Exhibit P5
[56]T202, T456 and T459
[57]T214, T217
[58]T566
[59]T216
[60]T572, T759
[61]T572, T759
134Mr Collopy could not recall a relevant JSA, or being given any instruction, as to how to:[62]
(a) dig drains;
(b) transport and install bollards and signage;
(c) perform patrols;
(d) transport equipment;
(e) install furniture; or
(f) clean roofs at campsites.
[62]T202-T204
135While Mr Collopy could not recall any written instruction as to how to transport supplies such as sawdust and toilet paper to the campsites, he said the method of doing so was discussed with his peers.[63]
[63]T203
136Mr Collopy could not recall any written instructions about installing and replenishing boot wash stations, but the task was discussed with his team leader and peers, “we worked out how we would do that. That’s including installation and maintenance.”[64]
[64]T203
137Mr Collopy said that after he was trained to use an all-terrain vehicle in April 2009, he no longer had to carry the 20-litre containers to replenish the boot wash.[65]
[65]T211
138Mr Collopy said that he was generally not supervised in the performance of his duties, and on those occasions that he sought direction or assistance, he was told just to find a solution and get on with it or prioritise.
139Mr Cox said that there was a JSA “for every task that was undertaken as part of that role”.[66]
[66]T836
140Mr Cox said Mr Collopy was well qualified and did not need supervision. His view was that Mr Collopy was a very adept man in the bush.[67]
[67]T857
141Mr Gardiner said that most activities “should” have had a JSA, and in addition, there were pocket JSAs.[68] If there was a task which was out of the ordinary and there was not an existing JSA, then the expectation was that the employee would write one.[69]
[68]T1057 and Exhibits D43, and P21
[69]T1130
142Mr Gardiner believed that there was a folder of JSAs for the walk at the depot. However, during cross-examination, Mr Gardiner candidly acknowledged that he did not now have a specific recollection that there was such a folder. He said that ordinarily, the team leader would put any new or updated JSAs into that folder, but it was possible that this did not occur.
143Mr Gardiner could not recall giving Mr Collopy any instruction as to how to carry out his day-to-day tasks on the track. He agreed that when he was acting ranger in charge, he expected Mr Collopy to just keep doing what he was doing “as an experienced member of the team”.[70]
[70]T1124
144Mr Gardiner gave evidence as to Parks Victoria’s system for ensuring that its staff complied with JSAs. He said:[71]
“Well, you couldn’t do it. Once any worker leaves the depot they have responsibility for their own safety, so there has to be an underlying assumption … not working safely, I wouldn’t necessarily know about it but a worker owes their own duty of care to work in a safe manner.”
[71]T1135
145Mr Gardiner said that he would expect a team leader or supervisor to check in from time to time to ensure that the JSAs were being properly implemented in the field.[72]
[72]T858
146The evidence as to electronic copies of JSAs was that they should have, but may not have been, saved in the JSA folder in the “S drive”.
147Mr Browne said that no-one at Parks Victoria would have directed Mr Collopy to take a barrel of sawdust down to Ryan’s Den when the track was wet. I accept Mr Browne’s evidence on this issue, which accords with Mr Collopy’s evidence. Mr Browne surmised that Mr Collopy must have done it “off his own back” because he would not have been directed to do such an “irresponsible thing”.[73]
[73]T1233
148Approximately fifty-two JSAs were discovered by Parks Victoria,[74] but the parties only tendered the following nine JSAs:
(a) Undated assessment – JSA worksheet; building maintenance – toilets, picnic shelter et cetera;[75]
(b) Undated assessment – JSA worksheet; walking; analysis by Brett Manders; “Is there a previous JSA? Yes. PV Intranet example”:[76]
(c) 8 April 2005 assessment – JSA worksheet; tracks; cut vegetation; clearing; analysis by Mick Cannon; “Is there a previous JSA?: No”;[77]
(d) 21 April 2005 assessment – JSA worksheet; felling and cross cutting overhanging and dangerous trees and branches along the walk; analysis by Brett Manders; “Is there a previous JSA?: Yes. JSA Number: MOS No2”;[78]
(e) 21 April 2005 assessment – JSA worksheet; signage installation; analysis by Brett Manders and Mick Cannon; “Is there a previous JSA?: Yes. PV intranet example”;[79]
(f) 15 August 2008 assessment – JSA worksheet CVA coastal tea tree removal; GOW maintenance with CVA; cut, remove and throw coastal wattle off track; analysis by Mr Collopy; “Is there a previous JSA?: ?”;[80]
(g) 6 November 2008 assessment – JSA worksheet draft version 2; brushcutting/ Whipper Snipping; analysis by Brett Manders and Mick Cannon; “Is there a previous JSA?: No”;[81]
(h) 5 April 2009 assessment – JSA worksheet; brushcutting/Whipper Snipping; analysis by Nick Alexeyeff, Tina Garrett and Andrew Gardiner; “Is there a previous JSA?: Yes”;[82]
(i) 25 June 2009 assessment – JSA worksheet; tracks; cut vegetation; clearing; analysis by Mick Cannon; “Is there a previous JSA?: No”.[83]
[74]Exhibit D47
[75]Exhibit P9: Job Safety Analysis Worksheet draft version dated 4 January 2002
[76]Exhibit D45
[77]Exhibit D44
[78]Exhibit P4
[79]Exhibit P8
[80]Exhibit P3
[81]Exhibit P5
[82]Exhibit P6
[83]Exhibit P7
149Parks Victoria also tendered a document titled “Working Alone Guidelines” dated November 2008.[84]
[84]Exhibit D30
150Parks Victoria tendered a “Safe As Audit” spreadsheet dated 31 August 2006.[85]
[85]Exhibit D46
151Mr Collopy tendered his Interrogatory 1, and Parks Victoria’s Answer sworn by Tennille Cilia, the return to work and WorkCover manager of Parks Victoria, on 15 October 2021:[86]
[86]Exhibit P26
“1.Before December 2013, state in relation to the Plaintiff’s work duties whether the Defendant performed any assessment or identification of the risks of injury associated with performing the following tasks:
(i) pruning;
(ii) digging;
(iii) shovelling;
(iv) lifting and carrying heavy materials;
(v) lifting and carrying tools;
(vi) carrying equipment;
(vii) walking over long distances;
(viii) walking over rough and unstable surfaces;
(ix) walking in areas involving steep inclines/descents;
giving the usual particulars.”
“1. IN ANSWER TO INTERROGATORY ONE I SAY:
It did. I am unable to identify each and every assessment or identification of risk of injury associated with the listed tasks over the period 2006 to December 2013 given the numerous ways in which risk was identified and assessed, but say all of the duties/tasks undertaken by staff of the defendant were risk assessed and training was given in relation to the various tasks to be undertaken, in terms of the safe manner in which the various tasks were to be performed. JSAs were created and staff were trained in relation to them. Also, and separate to this, risk identification and assessment was an ongoing activity undertaken by the defendant through regular OHS meetings, training sessions and information dissemination. Risk assessment and identification was done with input and feedback from staff members and those who undertook the tasks, which meant systems and processes and methods were constantly being reviewed, revised and updated / adjusted as needed and as circumstances required or changed. Task specific tools were sourced and used, and staff were given training in regards to the correct and safe use of these tools. Staff were also given manual handling training in regards to safe and correct use and movement of the body for manual and other tasks and activities. Rotation of duties and the breaking up of tasks was also recommended and work was undertaken by reference to work plans that were drawn up in consultation with the staff member who was to do the work, to ensure the measured, safe and balanced distribution of work. This scheduling of activities took into account the impact of weather and other environmental factors and no staff member was required or expected to undertake any work activity if there was thought to be a hazard or risk of injury. PPE was sourced, available and used by all staff members and all aspects of risk and health and safety were discussed at monthly meetings so as to ensure work activities were being undertaken in a safe and risk minimised way. Finally, staff were instructed and required to undertake a dynamic JSA in the field, before work commenced, to ensure the work that was to be done could be done safely. If it couldn’t be, it was not to be done.”
(emphasis added)
Findings
152Leading Counsel for Mr Collopy submitted that Parks Victoria’s systems and procedures “were very much theoretical in nature”.[87]
[87]T1319
153Further, it was submitted that Mr Cox’s evidence was to the effect that Brett Manders, as team leader, had the responsibility for ensuring that Mr Collopy knew about the relevant JSAs and followed them.[88]
[88]T855
154I find that during his employment, there were JSAs for many of the tasks that Mr Collopy was to undertake. I do so for the following reasons:
(a) First, this finding accords with Mr Collopy’s evidence of there being a folder of JSAs and a manual handling folder at the Apollo Bay depot;[89]
(b) Second, it accords with Mr Collopy’s evidence as to the need to complete a JSA to work through activities to be performed by a particular school or volunteer group;
(c) Third, it is consistent with the lay evidence called by Parks Victoria. Each of Mr Cox, Mr Gardiner and Mr Browne believed that there were JSAs for the tasks to be completed by rangers on the walk;
(d) Fourth, the nature of the tasks covered by the tendered JSAs, which included walking and cut-vegetation removal, is indicative of broad JSA coverage;
(e) Fifth, it accords with the pocket JSA system, which anticipated the broad range of JSAs, but dealt with the circumstance of a task not otherwise covered;
(f) Sixth, the minutes of the OH&S committee meetings in evidence revealed that new JSAs were generally referred to during the monthly meetings. In some circumstances, the content of the JSA was discussed, but the main aim was that staff knew there was a new JSA in existence.[90]
[89] T458-T459
[90]T1062
155I find that there were tasks performed by Mr Collopy which either were not covered by a JSA, or Mr Collopy did not know about, or was not instructed as to, the relevant JSA.
156I make that finding as I accept Mr Collopy’s evidence on this point. I more readily accept his evidence about this in view of the inference I have drawn due to Parks Victoria’s unexplained failure to call Mr Manders and Ms Garrett.
157Further, Mr Collopy’s evidence on this issue was not contradicted by the evidence of Mr Cox, Mr Gardiner or Mr Browne.
158I find that Mr Collopy was not trained, or provided with a JSA, as to the manner in which he was to:
(a) dig drains;
(b) transport and install bollards and signage;
(c) perform patrols;
(d) transport equipment;
(e) install furniture; and
(f) clean roofs at campsites.
159I find that Mr Collopy was generally not supervised in the performance of his work duties. As a result, the systems of work that were in place were generally not enforced.
160I accept Mr Collopy’s evidence that he did not complete any pocket JSAs. Given that the pocket JSA system required that they be submitted to the relevant worker’s supervisor upon return to the depot, I infer that Parks Victoria did, or should have, known that Mr Collopy was not complying with that system of work.
Is Mr Collopy estopped from relying upon complaints made to Parks Victoria?
161Parks Victoria submitted that Mr Collopy ought to be estopped from relying upon complaints allegedly made about his work duties to representatives of Parks Victoria. It relied upon the decision of the High Court in Commonwealth v Verwayen.[91] At 444, Deane J held:
“… the central principle of the doctrine is that the law will not permit an unconscionable - or, more accurately, unconscientious - departure by one party from the subject matter of an assumption which has been adopted by the other party as the basis of some relationship, course of conduct, act or omission which would operate to that other party’s detriment if the assumption be not adhered to. …
… an estoppel will not arise unless the party claiming the benefit of it has adopted the assumption as the basis of action or inaction and thereby placed himself in a position of significant disadvantage if departure from the assumption be permitted …
The question whether such a departure would be unconscionable relates to the conduct of the allegedly estopped party in all the circumstances … .”
[91](1990) 170 CLR 394
162In order to understand the claimed estoppel, it is necessary to briefly refer to the pleadings and Mr Collopy’s application to extend the limitation period for bringing his claim.
163Following Mr Collopy’s successful application at the start of the trial to further amend his Statement of Claim to add additional particulars to paragraph 8 of the Amended Statement of Claim, to allege a failure to heed complaints, Parks Victoria sought to further amend its Defence to plead an estoppel.
164Mr Collopy alleged in his Further Amended Statement of Claim dated 29 July 2024, that he made the following complaints to Parks Victoria:
“PARTICULARS OF COMPLAINTS
i.From 2006 to in or around 2009, the Plaintiff complained to Will Cox, ranger in charge, on numerous occasions about his work duties including; needing assistance with work tasks, being under resourced, the lack of rotation in respect of the work duties; the amount of work the Plaintiff had to undertake. Mr Cox ignored the Plaintiff’s complaints and told him to ‘prioritise’.
ii.From 2006 to in or around 2009, the Plaintiff complained to Will Cox about the lack [of] 4WD training. Mr Cox told the Plaintiff not to engage with 4WD driving.
iii.From 2006 to in or around 2009, the Plaintiff complained to Will Cox that he was exhausted and physically was struggling with the work duties.
iv.From in or around 2010, the Plaintiff complained to Peter Byrne, the ranger in charge, about training in heights; installation of safety points on the rooves (sic). Mr Byrnes told the Plaintiff not to work on the rooves (sic), there is no budget for training or attachment points but to get the job done. The Plaintiff told Peter Byrne on multiple occasions words to the effect that he could not ‘keep … [this] up, this is too physically demanding for one person.’
v.The Plaintiff complained to Trevor Dess, District Chief Ranger, resourcing, too much work for the number of people rostered; need for training. Mr Dess’ response was that there was no budget for training and that the Plaintiff would have to wait. He also told the Plaintiff that he could leave Parks Victoria.
vi.The Plaintiff lodged a number of incidents reports:
a. Apollo Bay minor injury register 2008 – see entry dated 16 July 2018;
b. 17 July 2008 Incident/hazard Injury Report and investigation see entry dated 17 July 2008;
c. Apollo Bay minor injury register 2010 – see entry 27 May 2010;
d. Apollo Bay minor injury register 2010 – see entry 5 September 2010;
e. Incident Summary Report dated 27 February 2011;
f. OHS Report dated 27 February 2011.”
165I gave Parks Victoria leave to file and serve a Defence to the Further Amended Statement of Claim. Relevantly, paragraph 13 of that pleading dated 31 July 2024 alleged as follows:
“13.Further or alternatively, the Plaintiff is estopped from alleging negligence or breach of duty on the part of the Defendant by reason of a failure to heed complaints.
PARTICULARS
a)The Plaintiff has amended the particulars under paragraph 8 of the Further Amended Statement of Claim, to allege that there was a failure to heed complaints as to the work duties and injuries sustained by him in the course of his employment.
b) In the course of the hearing of the Plaintiff’s application under section 23A of the Limitation of Actions [Act] 1958, the Plaintiff represented that:
a.there was no reliance on any complaints which the Plaintiff is said to have made to various staff members of the Defendant;
b.the Plaintiff’s claim ‘does not encompass any failure to respond to complaints’.
c) In all the circumstances, the effect of the Plaintiff’s representation was to make a promise that there was no reliance on any such complaints (including any alleged failure to heed or respond to same) both at the time of such representation (i.e. for the purposes of the section 23A application) and at any time in the future conduct of this proceeding.
d) By reason of the Plaintiff’s change of position, the Defendant has suffered or will suffer detriment in that:
a.For the purposes of the section 23A application, it did not have a fair opportunity to adduce evidence of any prejudice that might be occasioned to by reason of the Plaintiff’s reliance on such complaints, or to conduct the defence of the application with any knowledge of such reliance, including in the cross-examination of the Plaintiff and the making of submissions as to the impact of such reliance on the determination of the section 23A application.
b.The Defendant was not accorded a fair opportunity to know the case it was expected to meet at trial, and to prepare its defence accordingly, particularly in circumstances where the alleged complaints upon which reliance is now placed are vaguely and inadequately particularised, occurred many years ago, and, further, where the Defendant may not be in any position to call direct evidence of a person to whom complaints were allegedly made.
e) In … all the circumstances, it would be unjust or inequitable for the Plaintiff to change his position with respect to reliance on complaints allegedly made to representatives of the Defendant.”
166Parks Victoria acknowledged that “the mere making or not making of an allegation in the pleading may not be an indication of a representation into the future”,[92] but submitted that in the context of this case, the Court ought to find that the relevant representation was made “for the purposes of this case to its conclusion”.[93] This was said to be so for two reasons:
(a) First, during the s23A application, Leading Counsel for Mr Collopy sought leave to amend the Statement of Claim. Parks Victoria did not consent to, or oppose, the amendment. Leading Counsel for Parks Victoria noted there was no reliance upon any complaints, and if there was to be reliance upon complaints, they were material facts which ought to be pleaded, and submitted:[94]
“… if the plaintiff said, ‘Well, I am going to say that you were on notice because of specific complaints that I made to particular people’, then that would obviously not be a new cause of action but would be an additional feature of how he proposes to run the case. Then there’d be an argument presumably about whether any amendment would be permitted as a matter of fairness under Order 36. …
…
… if there were anything to be relied upon, it should be made clear now. Particularly when there’s an application of this kind. There is a need for some level of precision, in order for Your Honour to work out the matters which are really the substance of this application.”
[92]T1279
[93]T1279
[94]Exhibit D55: Extracts of the transcript from the s23A Limitation of Actions Act hearing on 27 November 2023
Leading Counsel for Mr Collopy did not respond to those submissions. Parks Victoria submitted this was a “silent representation”.[95]
(b) Second, during cross-examination of Mr Collopy in the course of the s23A application, Leading Counsel for Mr Collopy objected to questions about complaints on the grounds of relevance. The objection was not upheld.
[95]T1279
167Parks Victoria submitted that:[96]
“… we can assume in the circumstances of the non reliance on complaints, that counsel appearing at the s23A had made a forensic decision that non reliance on those complaints could only be (sic) increase the likelihood that leave would be granted, as I think Your Honour must infer in circumstances given the effluxion of time and issues even of general prejudice that would necessarily arise.”
[96]T1279-T1280
168As to detriment, Parks Victoria submitted that it had not had a fair and proper determination of its limitations defence based on the case now put by Mr Collopy. Leading Counsel for Parks Victoria submitted:
“It’s not possible for Your Honour to put yourself in the position of Her Honour Judge Tran to ascertain what the effect might have been, and of course that would be impossible as because there was no reliance on any complaints, there was no evidence adduced in respect of them from the defendant. But Your Honour can fairly infer detriment in that respect.”[97]
[97]T1281
169Further, Parks Victoria submitted that it was not able to investigate or adduce evidence relevant to the complaints.
Findings on estoppel
170I find that Mr Collopy did not represent that he would never seek to amend his pleading to add the alleged complaints.
171As Parks Victoria acknowledged, the mere absence of a pleading does not amount to a representation that the party would never seek to amend. The contextual circumstances relied upon by Parks Victoria do not elevate the representation.
172The absence of response to Parks Victoria’s submissions regarding the proposed amendments, and the objection to cross-examination in the course of the s23A hearing, do not advance matters. Those matters reflect the pleading as it then was and do not transform any representation referable to the pleading into a representation that no amendment application would be made in the future. Indeed, Leading Counsel for Parks Victoria acknowledged during the s23A hearing that if Mr Collopy made application to amend to add the complaints, the Court would consider the application in the usual way.
173Further, I am not persuaded that Parks Victoria has suffered any relevant detriment for the following reasons.
174First, as was acknowledged by Leading Counsel for Parks Victoria during the s23A hearing, adding particulars does not add a new cause of action. This situation is far removed from the representation made by the Commonwealth to the plaintiff in Verwayen[98] that liability was accepted, and the case would proceed as an assessment.
[98]Supra
175Second, Parks Victoria pleaded as particulars of contributory negligence that Mr Collopy had not made any relevant complaints during his employment. There must have been a proper basis for that pleading. It can be assumed that Parks Victoria provided instructions that no relevant complaints were made by Mr Collopy to his superiors at Parks Victoria regarding his work duties. Viewed in that context, it could not be said that Parks Victoria were prejudiced in any material way in not being able to investigate whether or not complaints were made.
176Third, Parks Victoria was permitted to cross-examine Mr Collopy during the s23A hearing regarding the complaints he made.
177Fourth, Parks Victoria asserted during the s23A hearing that Mr Collopy’s evidence that the reason for not making a WorkCover claim for his “course of work” physical injuries was because he feared it may affect his promotion prospects was implausible. This was said to be so, because he simultaneously claimed to have made approximately thirty verbal complaints about capacity issues and unsafe working conditions.[99] That submission was accepted.[100]
[99]Collopy v Parks Victoria [2024] VCC 159 at paragraph [23](f)
[100]Collopy v Parks Victoria [2024] VCC 159 at paragraph [25]
178Fifth, Parks Victoria alleged that it had suffered significant prejudice by reason of loss of documents, and lack of recall of witnesses.[101] Judge Tran accepted that Parks Victoria had suffered specific prejudice as a result of Mr Collopy’s delay in bringing proceedings in addition to presumed general prejudice but found that Parks Victoria also retained a substantial pool of evidence. Judge Tran noted that Parks Victoria had not suggested that it could not have a fair trial.[102]
[101]Collopy v Parks Victoria [2024] VCC 159 at paragraph [45]
[102]Collopy v Parks Victoria [2024] VCC 159 at paragraph [48]
179I am not persuaded that the running of the s23A application or its outcome would have been materially different if Mr Collopy had pleaded his complaints at that time.
180I find that Mr Collopy is not estopped from relying upon complaints he says he made to Mr Cox, Mr Byrne and Mr Dess.
What duty of care did Parks Victoria owe to Mr Collopy?
181There was no dispute about the duty owed by Parks Victoria as Mr Collopy’s employer.
182In Czatyrko v Edith Cowan University,[103] the High Court described the duty of care owed by an employer to an employee in the following way:
“… An employer owes a non-delegable duty of care to its employees to take reasonable care to avoid exposing them to unnecessary risks of injury. If there is a real risk of an injury to an employee in the performance of a task in the workplace, the employer must take reasonable care to avoid the risk by devising a method of operation for the performance of the task that eliminates the risk, or by the provision of adequate safeguards. The employer must take into account the possibility of thoughtlessness, or inadvertence, or carelessness, particularly in the case of repetitive work.”
[103](2005) 79 ALJR 839 at paragraph [12]
183In McLean v Tedman, the plurality described the employer’s obligations as follows:[104]
“The employer’s obligation is not merely to provide a safe system of work; it is an obligation to establish, maintain and enforce such a system. Accident prevention is unquestionably one of the modern responsibilities of an employer … And in deciding whether an employer has discharged his common law obligations to his employees the Court must take account of the power of the employer to prescribe, warn and enforce obedience to his commands.”
(emphasis added)
[104](1984) 155 CLR 306 at paragraph [12]
What was the relevant risk of injury against which Parks Victoria is alleged to have failed to take adequate steps to protect Mr Collopy?
184Leading Counsel for Mr Collopy identified the risk of injury to him as the risk of sustaining musculoskeletal injury in carrying out his duties.
185Parks Victoria accepted that there was “… a generalised risk of musculoskeletal injury in performance of some of the physical aspects of work on the Great Ocean Walk …”.[105]
[105] T1283
Findings on relevant risk of injury
186I find that the relevant risk of injury was the risk of suffering a musculoskeletal injury as a result of performing the physical aspects of maintaining the track and campsites whilst traversing variable terrain.
Was the relevant risk of injury reasonably foreseeable by a person in Parks Victoria’s position?
187Mr Collopy must establish that the risk of injury was foreseeable, in the sense that it was not far-fetched or fanciful.
188The Court may, and indeed should, rely on common sense and common knowledge in determining whether the relevant risk of injury was reasonably foreseeable.
189Leading Counsel for Mr Collopy submitted that the available JSAs identified the risk of injury; Mr Collopy’s various complaints put Parks Victoria on notice, and Parks Victoria’s witnesses had accepted the work was physically exhausting and the walk involved known risks, particularly given the rugged terrain.
190Parks Victoria submitted that it was not on notice of any particular vulnerability applicable to Mr Collopy.
Findings on foreseeability
191I find that the risk of suffering a musculoskeletal injury as a result of performing the physical aspects of maintaining the track and campsites, and traversing variable terrain was reasonably foreseeable by a person in Parks Victoria’s position. I do so for the following reasons:
(a) Each of Parks Victoria’s witnesses acknowledged the physical nature of the work and the challenging environment in which it was undertaken;
(b) The JSAs which were tendered noted the hazards posed by various tasks;
(c) Parks Victoria were also on notice, by reason of the minor injury reports as well as the incident reports made by Mr Collopy, of him suffering injury in the performance of his work duties.
What was the content of the duty of care owed by Parks Victoria to Mr Collopy in respect of that risk?
192Where it is determined that the relevant risk of injury was reasonably foreseeable, it is then necessary to consider the content of the duty of care owed by Parks Victoria to Mr Collopy in respect of that risk. In other words, what would Parks Victoria have done had reasonable care been exercised?
193In Wyong Shire Council v Shirt,[106] Mason J stated:
“In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant’s position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant’s position.”
(emphasis added)
[106](1980) 146 CLR 40 at 47-48
194In Swain v Waverley Municipal Council,[107] McHugh J said:
“The plaintiff bears the legal and evidentiary burden of establishing a prima facie case of negligence. To prove negligence, the plaintiff must be able to point to a reasonably practicable precaution or alternative course of conduct that could have avoided, or reduced the consequences of, the injury to the plaintiff. The plaintiff does not establish a prima facie case simply by asserting that there ‘must be’ a practicable alternative, and that it is for the defendant to provide evidence that no such alternative exists. The plaintiff does not prove a case of negligence, for example, by proving the existence of the risk and then alleging that the defendant took no precautions to protect the plaintiff against that risk.”
[107](2005) 220 CLR 517, paragraphs [40] and [44]
195Again, the Court may, and indeed should, rely on common sense and common knowledge where possible in determining the reasonable and appropriate precautions which Parks Victoria should have taken to avert the relevant risk of injury.[108]
[108]Southern Colour (Vic) Pty Ltd v Parr [2017] VSCA 301
196This enquiry must be prospective.
197Leading Counsel for Mr Collopy put the counterfactual case that would likely have avoided injury in the following way:[109]
“We say that it’s apparent on the defendant’s own documents what a safe system of work would in fact be. Really, largely that is set out again in the JSAs. So we rely on the defendant’s own documents as to what a safe system of work would be in respect of the tasks which actually do have a JSA. So we say that the tasks that the plaintiff was performing, certainly things like the restocking or the resupplying of the campsites, the hand sawing, the digging of the drains, they all ought to have had a JSA at first instance, or at least a risk assessment, and before the plaintiff carried out the task; and that the plaintiff should have been informed of the control measures and he should have been supervised in such a way that the employer could have been satisfied that he was performing them in a safe way.
[195]Exhibit D49
362Dr van Ammers diagnosed an Adjustment Disorder, “more in the anxiety than in the depressive domain”. He noted that Mr Collopy had become almost “exclusively preoccupied” with his workplace grievances. He opined that this pre-occupation would make it difficult for Mr Collopy to focus on work tasks. As to prognosis, he said:
“Unfortunately, for as long as Mr Collopy believes as intensely that he does that the workplace is 100% at fault and has carried out such malignant actions, there will be little shift in his presentation.”
The parties’ submissions
363Leading Counsel for Mr Collopy sought to rely upon acceptance of Mr Collopy’s WorkCover Claim, acceptance of his impairment benefit claim and the consequential continued payment of medical expenses for his injuries as admissions.
364As I have outlined above, Mr Collopy’s WorkCover claim for aggravation injuries to his left shoulder, knees and wrists was rejected by the insurer but subsequently a Medical Panel determined that Mr Collopy’s work duties were a significant contributing factor to those injuries.
365The WorkCover insurer did not seek a judicial review of the Medical Panel’s determination.
366Leading Counsel for Mr Collopy relied on Pastras v Commonwealth,[196] and submitted that Parks Victoria’s failure to challenge the decision of the Medical Panel amounted to an admission by conduct that Mr Collopy’s work duties were a significant contributing factor to his bilateral knee, low back, left shoulder and upper limb injuries.
[196](1966) 9 FLR 152
367Pastras was recently considered by Tsalamandris J in Sepe v Club Italia Sporting Club Inc (Ruling).[197] I respectfully adopt her Honour’s analysis:
“In Pastras v Commonwealth, the plaintiff sought to lead evidence of payments made to him (pursuant to the Commonwealth Employees’ Compensation Act 1930) as an admission by conduct that he was totally incapacitated from the time of the workplace injury up until the time of trial. The court stated that payments made pursuant to a determination in relation to the plaintiff’s resulting incapacity could amount to an admission in circumstances where there was an effective right of appeal, which was not resorted to by the Commonwealth. The court held that in not exercising its right to appeal, the Commonwealth’s act in making payments could be regarded as an admission by conduct. … .”
[197][2023] VSC 191 at paragraph [13]
368Leading Counsel for Parks Victoria submitted that the Opinion of the Medical Panel is binding in the proceeding in which it was sought. There is no mechanism for an appeal on the merits, only a capacity to seek judicial review on the grounds of jurisdictional or legal error. Leading Counsel referred to the discussion regarding admissions in Moore v Goldhagen,[198] and also relied upon Tomasevic v State of Victoria.[199] It was submitted that the Medical Panel was determining a statutory benefits question which is different to the issue this Court must determine. Even if there was an admission, it carried little evidentiary weight.
[198][2024] VSCA 25
[199][2018] VSCA 325
369Leading Counsel for Mr Collopy submitted that the evidence supported a finding that Mr Collopy began experiencing swelling and pain in his knees, pain in his left shoulder and pain in his lower back shortly after starting work as a ranger in 2007.
370As to the medical evidence, Leading Counsel for Mr Collopy submitted that Dr Kostos “really sits alone in respect of the question of causation” in finding that the injuries were constitutional.
371As to the bilateral knees, Leading Counsel for Mr Collopy submitted:
(a) Mr Stoney concluded that Mr Collopy’s employment and the heavy physical labour was a significant factor in aggravating, accelerating and exacerbating his knee osteoarthritis;
(b) Dr Blombery opined that the osteoarthritis in both knees was partly a consequences of the heavy loads Mr Collopy was carrying on a daily basis whilst walking long distances;
(c) Mr Simm agreed during cross-examination that carrying heavy loads up and down steep inclines, negotiating steps, kneeling and bending “for hours at a time” could have had an accelerating effect on Mr Collopy’s pre-existing osteoarthritis.
372As to the lower back injury, Leading Counsel for Mr Collopy submitted:
(a) Mr Simm noted Mr Collopy complained of lower back symptoms from early 2007 in the course of his work, and given the persistence of symptoms, they were likely at least partially related to his work;
(b) Mr Kossman opined that Mr Collopy’s work duties were a significant contributing factor to the aggravation of Mr Collopy’s back condition.
373As to the left shoulder injury, Leading Counsel for Mr Collopy submitted there was ample medical evidence that the injury was sustained in the course of his work:
(a) There was no medical evidence to suggest that Mr Collopy’s left shoulder condition “is some sort of overuse injury resulting from the plaintiff’s earlier right shoulder injury”;
(b) Dr Blombery opined that it was caused by the heavy work and heavy lifting Mr Collopy had to perform;
(c) Mr Simm opined that heavy physical work, including overhead work to saw and trim, could have exacerbated Mr Collopy’s symptoms;
(d) Mr Jones could not exclude the work duties causing or aggravating a supraspinatus tear involving that joint.
374As to the bilateral hands and wrists, Leading Counsel for Mr Collopy submitted:
(a) Dr Blombery opined that Mr Collopy’s reports of experiencing numbness and tingling in the fingers of both hands after a day of brush cutting was strongly suggestive of the development of hand/arm vibration syndrome; heavy work was probably a contributing factor to the development of trigger finger;
(b) Mr Simm opined that operating vibrating power tools was a risk factor for developing carpal tunnel syndrome;
(c) Mr Sutherland opined that heavy manual work can contribute to the development of both carpal tunnel syndrome and trigger finger.
375It was submitted that the psychiatric evidence supported the proposition that Mr Collopy’s psychological injury was at least partly caused by his pain.
376Parks Victoria submitted that it would be “impossible on the evidence to tie any particular of injury to any proposed change in the system of work”.[200]
[200]T1288
377As to Mr Collopy’s lower back condition, Parks Victoria submitted that Mr Collopy was not working as a ranger when he complained of increasing back pain in May 2008. Mr Simm opined that Mr Collopy’s back pain from performing his duties reflected pre-existing pathology.[201] Parks Victoria submitted that whatever aggravation was caused by the weeding episode in February 2011, it had resolved as Mr Collopy was cleared for full duties in August 2013. His lower back condition then worsened after December 2013, when Mr Collopy was no longer performing any duties as a ranger.
[201]T1005
378As to Mr Collopy’s bilateral knee condition, Parks Victoria submitted that Mr Collopy was not working as a ranger in May 2008 when he first complained of increasing symptoms. It was submitted that no issue was reported until August 2011.[202] When seeking treatment in 2011 and 2012, Mr Collopy did not attribute his knee symptoms to his work. The injury the subject of the August 2012 minor injury report was not part of this claim, but in any event, did not require any treatment.[203] Further, Dr Kutti examined all Mr Collopy’s limbs in August 2013, and nothing was found.[204] The next report of knee pain to a medical practitioner was not until December 2015, more than two years after ceasing work. Parks Victoria submitted that Mr Simm conceded the possibility of acceleration of the knee condition under loading. But it would be necessary to know how often Mr Collopy undertook walking under significant load to quantify the relationship.[205] Parks Victoria submitted that the evidence of Mr Stoney at its highest “could only be an opinion which goes to injury arising out of or in the course of employment, and not injury to which any negligence of the defendant was a cause”.[206]
[202]Exhibit D52
[203]T1291
[204]Exhibit D52
[205]T979
[206]T1293
379As to Mr Collopy’s left shoulder, again it was submitted that the first recorded complaint of pain was in May 2008 when Mr Collopy was not working as a ranger. Parks Victoria submitted that there was no medical evidence that Mr Collopy suffered any specific injury in the Ryan’s Den incident in July 2008. He did not seek any treatment or take time off work. The clinical records in 2009 and 2010 did not note Mr Collopy attributing his injury to his work. In any event, the condition was much improved after surgery.
380Parks Victoria submitted that the first recorded complaint of problems with Mr Collopy’s wrist and hands was in 2016. Those conditions have effectively resolved.
Findings on causation
381In resolving the issue of causation in fact, I am required to determine whether Mr Collopy has established that it is more likely than not that his injuries would have been avoided if the proposed reasonably practicable alternate system of work had been devised, implemented and enforced.
382Leading Counsel for Mr Collopy submitted that the JSAs identified risks and set out control measures, “if they had in fact implemented these then that would have prevented or reduced the risk of injury to the plaintiff”. Leading Counsel further submitted:[207]
“… we say it’s an inescapable corollary of the medical evidence that if the duties he was performing were a significant contributing factor to his injury, then the inverse of that is if he wasn’t performing these sorts of tasks, that it would have minimised the risk of that injury to him.”
[207]T1354
383Leading Counsel for Mr Collopy referred to Tabet v Gett,[208] and Chol v Pickwick Group Pty Ltd,[209] and submitted that the Court ought to infer by the application of common sense, that the reasonably practicable alternative system of work would have avoided Mr Collopy’s injuries.
[208](2010) 240 CLR 537
[209][2023] VCC 66
384I do not accept those submissions for the following reasons.
385First, the medical practitioners had a limited understanding of Mr Collopy’s work duties over time.
386Second, the evidence adduced in the trial as to Mr Collopy’s work duties over time was unsatisfactory.
387Third, the evidence as to the reasonably practicable alternate system of work where no JSA was in evidence was vague.
388Fourth, on any view, the reasonably practicable alternate system of work involved significant physical exertion on uneven terrain.
389Fifth, resolving the issue of causation requires an assessment of the difference in the stresses and strains placed upon Mr Collopy’s left shoulder, lower back, knees, hands and wrists in performing the tasks pursuant to the reasonably practicable alternate system in contrast to how in fact Mr Collopy performed them over time.
390Sixth, Mr Collopy had pre-existing degenerative changes in his lower back and both knees, which means the issue is more medically complex.
391None of the medical practitioners whose reports were tendered were asked to opine as to whether any and which of Mr Collopy’s injuries would have been avoided if an alternative system of work had been adopted.
392Dr Kutti did not give any opinion evidence relevant to the issue of causation in fact during his oral evidence.
393Neither Dr Kostos nor Mr Simm gave any oral evidence that could provide a basis to find that any proposed reasonably practicable alternative system of work likely did, or even might have, avoided any of Mr Collopy’s injuries.
394I will now deal further with the causation issues in respect of each injury.
Bilateral knees
395Mr Collopy suffered from an underlying degenerative condition in both knees. His knees were mildly symptomatic when he started working as a ranger.
396I accept Mr Collopy’s evidence that he began to experience more symptoms in his knees, right more than left, performing his work duties as a ranger from January 2007.
397By May 2008, the symptoms in his right knee had become more troublesome and he attended his GP and had imaging of the right knee at that time. That imaging confirmed the presence of osteoarthritis in the right knee; however, no specialist referral was made.
398Mr Stoney’s report supports the contention that Mr Collopy’s work as a ranger was a material contributing factor to the aggravation or acceleration of his knee condition. His understanding was that the work involved:[210]
“… heavy physical labour. I understand that he was required to carry equipment up to 40 kg in weight over long distances. His physical work involved squatting, kneeling, bending, digging and lifting. These types of activities as well as carrying heavy weights over long distances create recurrent abnormal loading across the knee joint. This increases the risk of the development of osteoarthritis of the knee.”
[210] Exhibit P33
399Dr Blombery opined that the heavy work and heavy lifting whilst walking long distances caused or aggravated Mr Collopy’s bilateral knee injuries.
400Dr Kostos was of the view that various of the activities Mr Collopy performed at work could have exacerbated the symptoms he experienced in his knees but opined that they would not cause or accelerate the osteoarthritis.
401However, the opinions of Mr Stoney, Dr Blombery, Dr Kossman, Dr Kostos and Dr Kutti did not deal with the issue whether an alternate system of work would have avoided injury.
402Mr Simm opined that carrying more than 20 kilograms on a regular and extended basis, particularly if up or down steep inclines could accelerate osteoarthritis. If it was done frequently, on a regular several days a week or every day of the week basis, Mr Simm opined it may “have some degree of acceleration effect on the osteoarthritis”. Mr Simm said that steps or stairs were a known accelerating factor, but Mr Collopy had told him that was not a common activity.
403Mr Simm said that a 44-gallon drum loaded with 20 kilograms of fluid was a “moderately heavy load”, and if Mr Collopy was pushing that uphill, it could accelerate the osteoarthritic process. Significantly, Mr Simm said:[211]
“But I have difficulty with quantitating that statement. Whether it was infinitesimal or whether it was significant depends how often he did it and over how many years that he did it.”
[211] Exhibit D42
404Mr Simm agreed that if the track was muddy, that would increase the load.
405Mr Simm said that pulling a trolley uphill, or up steps, would increase the load on the knees significantly.
406Mr Simm agreed that kneeling and squatting would be aggravating factors, but Mr Collopy had said he did not do that much.
407Mr Simm did not agree that brush cutting or digging would affect the knee joints
408Leading Counsel for Mr Collopy asked Mr Simm whether limiting the weights Mr Collopy carried would have made a difference or been beneficial.[212] Mr Simm said:
“Well, I think he said - he told me he carried weights of up to 40 kilograms from time to time. I’m now advised by you that he did those sorts of - he did that sort of carrying of heavy weights whilst negotiating steps and inclines which now becomes, I think, a relevant factor.”
[212]T987
409Mr Simm’s evidence under cross-examination provides support for a finding that Mr Collopy’s performance of his work duties contributed to an aggravation or acceleration of his pre-existing osteoarthritis.
410Mr Simm was not asked whether a particular counterfactual would have avoided Mr Collopy’s knee injury.
411The answers given in cross-examination by Mr Simm do not provide a sufficient basis for a finding that Mr Collopy would have avoided the aggravation injury to his knees if, say, a reasonably practicable alternate system of limiting the weights he carried to 20 kilograms had been enforced.
412I am unable to infer that if a reasonably practicable alternate system of work had been devised, implemented and enforced, that Mr Collopy would have avoided the aggravation injury to his knees.
413I therefore find that Mr Collopy has not satisfied his onus to establish that there was a breach of duty by Parks Victoria which was a cause of the aggravation injury to his knees.
Lower back
414Mr Simm attributed some increasing lower back pain to the physical duties associated with Mr Collopy’s work as a ranger. I accept his opinion that Mr Collopy was prone to suffer recurrent lower back pain spontaneously as well as due to mechanical loading. Further, I accept his opinion that Mr Collopy’s lower back condition represented longstanding degenerative pathology rather than the ongoing effects of a work aggravation.[213]
[213]Exhibit D42, at page 13
415I accept that Mr Collopy began experiencing more frequent lower back pain in the course of performing his work duties from early 2007.
416I accept that the Mr Collopy’s work duties as a ranger were a significant contributing factor to an aggravation injury to Mr Collopy’s low back.
417Mr Simm was not asked to, and did not, opine as to whether Mr Collopy would have avoided the aggravation injury to his back if the proposed reasonably practicable alternate system of work had been devised, implemented and enforced.
418I am unable to resolve these issues on a commonsense basis. Given the state of Mr Collopy’s lumbar spine due to his pre-existing degeneration and surgeries, I would need expert medical opinion that Mr Collopy would likely have avoided the aggravation injury to his lower back if the reasonably practicable alternate system had been implemented. There was no such evidence.
419I therefore find that Mr Collopy has not satisfied his onus to establish that there was a breach of duty by Parks Victoria which was a cause of the aggravation injury to his lumbar spine.
Left shoulder
420I find that it is more likely than not that Mr Collopy began to experience symptoms in his left shoulder in early 2007 in the course of performing his work duties.
421I do not accept that the recorded history of two years of left shoulder pain as at May 2008 supported a finding that the onset of symptoms in Mr Collopy’s left shoulder pre-dated his ranger role for the following reasons:
(a) First, for reasons already articulated, I generally accept Mr Collopy’s evidence regarding the onset of symptoms in his left shoulder. I accept Mr Collopy’s evidence that he did not have any symptoms in his left shoulder prior to starting work as a ranger. That account is corroborated by his levels of activity, including regular surfing. It is also corroborated by the evidence of his wife and his brother;
(b) Second, Dr Smith’s referral letter noting “pain present 2 years” is also consistent with him being told that the pain had come on since Mr Collopy started his ranger role in December 2006. I bear in mind that clinical records are the doctor’s interpretation of what they are told by the patient. The same considerations apply to Mr Lyons’ recorded history;
(c) Third, there is no other evidence to support a finding that Mr Collopy was experiencing left shoulder symptoms prior to December 2006.
422I find that Mr Collopy experienced an exacerbation of left shoulder symptoms in about April 2008. This was when he was on leave without pay, working on the Lighthouse Project. That exacerbation was not precipitated by his work duties as a ranger.
423I find that Mr Collopy’s left shoulder symptoms were exacerbated in the incident in July 2008 when he slipped whilst transporting a barrel of sawdust to the Ryan’s Den campsite.
424The medical evidence supports a finding that Mr Collopy’s work duties were a significant contributing factor to the development of his left shoulder symptoms from 2007.
425None of the medical evidence addressed the issue whether Mr Collopy would have avoided his left shoulder injury if the reasonably practicable alternate system of work had been implemented.
426I cannot use common sense to determine that if the reasonably practicable system of work had been implemented, that Mr Collopy would not have suffered the injury to his left shoulder in the course of work generally. This is because Mr Collopy’s work would still have involved significant physical activity, albeit with additional breaks and limits on weights to be carried. I am unable to determine the difference between the stresses and strains that the performance of the work would have had under that system compared to what in fact occurred.
427I can, however, use common sense to determine that given the reasonably practicable alternative to the Ryan’s Den incident was that the task not be performed at all that day, in those circumstances, Mr Collopy would not have suffered that particular aggravation injury to his left shoulder.
428I therefore find that Mr Collopy has not satisfied his onus to establish that there was a breach of duty by Parks Victoria which was a cause of the aggravation injury to his left shoulder except only in relation to the Ryan’s Den incident.
Bilateral wrists and hands
429Mr Collopy’s memory is that he was experiencing numbness and tingling in his hands after long days using the brush cutter or Whipper Snipper from 2007.
430The first evidence of a complaint from Mr Collopy about wrist or hand problems to a GP was in July 2016, when he presented to Dr Kutti with symptoms of bilateral carpal tunnel syndrome. This was two-and-a-half years after Mr Collopy stopped work. When this contention was put to Mr Collopy during cross-examination, he did not accept that was the first time he discussed such issues with Dr Kutti. He said he believed he reported symptoms “a number of years before that”.[214]
[214]T647
431I accept that Mr Collopy experienced some symptoms in his hands if he spent a long period performing brush cutting or Whipper Snipping in the period prior to February 2011. I find it is more likely that such symptoms were mild and short-lived. I note that Mr Collopy stopped brush cutting and Whipper Snipping after his low back injury in February 2011 and did not resume those duties.
432Mrs Collopy did not recall Mr Collopy having symptoms in his wrists or hands until about 2013.
433I find that Mr Collopy is mistaken in his recall as to when he first complained about symptoms in his hands and wrists to Dr Kutti. The substance of the entry in July 2016 better accords with an initial presentation for these difficulties rather than a second or subsequent discussion.
434Mr Sutherland, treating surgeon, noted in his report that he had been provided with a “volume of information”. It is not clear from his report what that comprised. It is not clear what understanding Mr Sutherland had as to the nature of Mr Collopy’s work duties. I accept his opinion that both the trigger finger and carpal tunnel syndrome conditions are common. Mr Sutherland noted that heavy manual work contributed to the development of both conditions.
435Dr Blombery’s opinion is based upon significant exposure to vibrating machines in the course of Mr Collopy’s employment as a ranger. That history is not in accordance with my findings above. Dr Blombery was also given a history of significant symptoms from the start of Mr Collopy’s employment, which does not accord with my findings.
436Mr Simm opined that operating vibrating power tools for extended periods over a number of years was a risk factor for the development of carpal tunnel syndrome. He raised doubt about any work-related aggravation given the timing of the complaints and treatment.
437Mr Simm opined that the trigger finger condition was due to Mr Collopy’s propensity for degenerative pathology.
438Mr Simm’s opinions largely accord with those of Dr Kostos on these issues.
439I prefer the opinion of Dr Kostos, given his speciality as a rheumatologist. I accept his opinion that the Heberden’s and Bouchard’s nodes on Mr Collopy’s hands are hereditary forms of osteoarthritis and confer a tendency to develop osteoarthritis elsewhere. I accept his opinion that studies have shown that the type of work Mr Collopy was undertaking is not associated with the development of carpal tunnel syndrome.
440I prefer the medical evidence that Mr Collopy’s bilateral carpal tunnel syndrome and trigger finger conditions are constitutional.
441Further, I am not satisfied that those doctors who have suggested a causal link have had an accurate history as to the nature of Mr Collopy’s work duties or the timing of the onset and nature of the symptoms.
442If I am wrong, and Mr Collopy’s hand and wrist conditions were materially contributed to by his employment as a ranger, there is no medical opinion that the counterfactual system would have produced a different outcome for Mr Collopy. The difference in stresses and vibration required expert opinion as to the potential outcome with a lesser exposure.
443For completeness, I will also deal with the additional submission made on behalf of Mr Collopy as to an admission by conduct.
444That admission by conduct was said to arise from a failure to challenge a Medical Panel determination regarding compensability of the course of work injuries, and subsequent acceptance of an impairment benefit claim.
445The determination of the Medical Panel was not in evidence.
446Mr Collopy said, and I accept, that his WorkCover claim in respect of the claimed course of work injuries to his knees, left shoulder and wrists was accepted because of the Medical Panel determination.
447I find that the WorkCover insurer did not have a right of appeal of that determination. In the circumstances, I find that the failure to initiate Judicial Review proceedings in respect of that determination does not elevate it to an admission by conduct. If I am wrong about that, I find that any such admission in this case is of little evidentiary weight where I must determine whether Parks Victoria’s negligence was a cause of Mr Collopy’s injuries. That is a different issue to that which the Medical Panel determined.
448Given that the acceptance of the impairment benefit claim followed the Medical Panel’s determination, I similarly find that there was no admission by conduct, and if there was, it was of little evidentiary weight.
Which of Mr Collopy’s duties involved hazardous manual handling?
449In paragraph 9 of the Further Amended Statement of Claim, Mr Collopy alleged that Parks Victoria breached Regulations 3.1.1, 3.1.2 and 3.1.3 of the Occupational Health and Safety Regulations 2007 (Vic). That is, that Parks Victoria failed to identify hazardous manual handling tasks, failed to ensure that the risk of a musculoskeletal disorder associated with a hazardous manual handling tasks was eliminated so far as was reasonably practicable and/or failed to review such measures. Mr Collopy relied upon the same particulars as for his claim in negligence.
450Leading Counsel for Mr Collopy made brief closing submission as to the case on the regulations, essentially relying upon the submissions made in the negligence case.
451Leading Counsel for Mr Collopy submitted the Ryan’s Den incident was associated with a hazardous manual handling task.
452Further, it was submitted:[215]
“… we say that Your Honour can be satisfied that there were a number of tasks [for] which there was no risk assessment carried out for instance, for the digging of drains, the replenishing of the toilet stalls and the like. … brush cutting … was not actually assessed until 2008.”
[215]T1367
453Parks Victoria accepted the possibility that a number of Mr Collopy’s duties constituted “hazardous manual handling”. It was submitted: [216]
“But of course it is difficult to be specific about it because one doesn’t know whether there is any occasion where the full range of weights and the periods over which the plaintiff may have been carrying them or doing anything about them, is not very clear, and whether the digging is digging or tidying up of one trench or digging for one day, would be different things as to whether or not they constituted hazardous manual handling.”
[216]T1296
Did Parks Victoria breach its statutory duty in respect of hazardous manual handling?
454Mr Collopy alleged that Parks Victoria failed to perform risk assessments for various tasks including digging drains, replenishing toilets “and the like”.
455Parks Victoria submitted that the Court should not be satisfied that there was any breach of statutory duty. Specifically, the evidence did not support a finding that the relevant tasks had not been identified or assessed, or that appropriate risk control measures had not been adopted. Otherwise, Parks Victoria relied upon its submissions in relation to breach of duty of care.
456For the reasons already identified in relation to the claim in negligence, I find that Parks Victoria did not implement and enforce its JSAs, and there were some tasks in respect of which there was no JSA, or Mr Collopy was not instructed or trained in the JSA.
457I find that by not ensuring, so far as was reasonably practicable, that Mr Collopy worked according to its JSAs, or that there were JSAs for the hazardous manual handling tasks, Parks Victoria failed to ensure that the risk of a musculoskeletal disorder associated with a hazardous manual handling task was eliminated so far as was reasonably practicable.
Was any breach of statutory duty a cause of injury to Mr Collopy? If so, which injury?
458For the reasons already outlined in respect of the claim in negligence, I am not satisfied that any breach of statutory duty was a cause of Mr Collopy’s bilateral knee injury, low back injury and wrist and hand injuries.
459However, I find that it was a cause of the aggravation injury to Mr Collopy’s left shoulder sustained in the incident on 16 July 2008 only. I am not satisfied that any breach of statutory duty was otherwise a cause of Mr Collopy’s left shoulder injury.
Was Mr Collopy contributorily negligent? If so, by what percentage?
460Parks Victoria alleged that Mr Collopy was contributorily negligence in the following ways:
“a)If the Plaintiff’s duties were too difficult for him (which is denied) failing to advise the Defendant of that fact so that assistance or alternative duties could be provided.
b)Failing to seek assistance.
c)If supervision was inadequate (which is denied) then failing to notify the Defendant of that fact.
d)If the work caused the Plaintiff any difficulty then failing to notify his superiors of same.
e)If the Plaintiff was incapable of performing the work he was carrying out, which is denied, then failing to inform the Defendant of same.
f)If the work was causing the Plaintiff difficulty and/or injury then:
i.Failing to report or complain of same
ii.Failing to seek assistance
iii.Failing to promptly cease those duties
g)If the Plaintiff knew or believed that the system of work was not safe (which is denied) then failing to notify the Defendant of the fact.
h)If assistance was inadequate (which is denied) then failing to request adequate assistance.
i)If the Plaintiff knew or believed that he was required to lift and manoeuvre an excessive weight (which is denied) then failing to notify the Defendant of that fact.
j)If the Plaintiff knew or believed that the plant and equipment were not safe or suitable (which is denied) then failing to request or seek replacement of same.”
461The thrust of the case on contributory negligence was that Mr Collopy failed to advise Parks Victoria that he was having difficulty performing his duties, required assistance and had suffered injury in the performance of his duties.
Findings on contributory negligence
462The obligation to devise, implement and enforce the system of work rests with Parks Victoria. I have found that Parks Victoria breached its duty of care and was in breach of statutory duty, and that such breaches were a cause of injury to Mr Collopy’s left shoulder in the incident at Ryan’s Den. The allegations of contributory negligence must be considered in that context.
463In circumstances where I have found that Parks Victoria failed to implement and enforce the system of work and Mr Collopy was left to devise his own system of work, there is no room for a finding of contributory negligence in respect of that incident.
What was the nature and extent of injury suffered by Mr Collopy?
464Given my findings above, I will only deal with the evidence relevant to Mr Collopy’s left shoulder injury sustained in the Ryan’s Den incident.
465In the months preceding that incident, Mr Collopy had increasing symptoms in his left shoulder. He had consulted his GP in May 2008, and was referred to orthopaedic surgeon, Mr Lyons. He was seen by Mr Lyons on 26 May 2008. At that time, he was having trouble sleeping due to left shoulder pain. There was a slight trend towards improvement, but Mr Lyons was of the view there was a rotator cuff tear which had likely been deteriorating for some time. Mr Lyons suggested surgical treatment.
466The Ryan’s Den incident occurred on 16 July 2008. There is no medical opinion that addressed the impact, if any, that the incident had upon the course of Mr Collopy’s left shoulder condition.
467I bear in mind that I have not found Parks Victoria liable in respect of the left shoulder condition, insofar as it related to Mr Collopy’s course of work generally.
468In his evidence-in-chief, Mr Collopy was asked about the significance of the Ryan’s Den incident given his evidence that he was already experiencing significant left shoulder pain at the time. Mr Collopy said:[217]
“It was one of many. It wasn’t of - it didn’t stick out as a – you know, the incident or something.”
[217] T252
469Mr Collopy said that the incident did not cause him to take any time off work.
Medical evidence relevant to damages
470The medical evidence relevant to the current condition of Mr Collopy’s left shoulder deals with the condition of his shoulder, bearing in mind development of that condition over the entire period of Mr Collopy’s employment. I do not find Mr Collopy is entitled to damages on the basis.
Findings
471There is no medical evidence to the effect that any aggravation caused by the Ryan’s Den incident appreciably influenced the course of Mr Collopy’s left shoulder condition or its treatment.
Consequential psychological condition
472There is no evidence that any element of Mr Collopy’s psychological injury is consequent upon any left shoulder injury sustained in the Ryan’s Den incident.
In what sum should general damages be assessed, if applicable?
473Parks Victoria submitted damages ought to be nominal, or in the tens of thousands at the highest.
474Leading Counsel for Mr Collopy submitted that damages for all the injuries combined ought to be assessed in the range of $275,000 to $300,000.
Assessment of general damages
475There is no medical evidence relevant specifically to any left shoulder injury sustained in the Ryan’s Den incident. Doing the best I can, I find that the appropriate sum for general damages for the injury to the left shoulder sustained on 16 July 2008, is $5,000.
Conclusion
476Parks Victoria breached its duty of care and was in breach of statutory duty, but Mr Collopy has not satisfied his onus to establish that such breaches were a cause of his injuries save in respect of the minor injury to his left shoulder in the incident on 16 July 2008.
477Mr Collopy was not contributorily negligent.
478I assess damages in the sum of $5,000.
479I will hear the parties regarding the appropriate orders, including as to costs.
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