Divjakoski v Boral Window Systems - [2011] WASCA 134

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: DIVJAKOSKI -v- BORAL WINDOW SYSTEMS [2011] WASCA 134

CORAM: BUSS JA
NEWNES JA
MURPHY JA

HEARD: 10 MARCH 2011

DELIVERED : 23 JUNE 2011

FILE NO/S: CACV 50 of 2010

BETWEEN: DRAGAN DIVJAKOSKI
Appellant
AND
BORAL WINDOW SYSTEMS
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :FENBURY DCJ
Citation  :DIVJAKOSKI -v- BORAL WINDOW SYSTEMS [2010] WADC 60
File No  :CIV 961 of 2003

Catchwords:

Negligence - Appellant claimed damages for injury at work - Adverse findings as to appellant's credibility by trial judge - Finding that appellant failed to prove negligence by respondent - Whether trial judge erred in making adverse findings on credibility - Whether trial judge should have found negligence by respondent - Relevant principles - Turns on own facts

Legislation:

Nil

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr A Gunasekera
Respondent: Mr G R Hancy

Solicitors:

Appellant: Workers Compensation Legal Services
Respondent: DLA Piper Australia

Case(s) referred to in judgment(s):

Andar Transport Pty Ltd v Brambles Ltd [2004] HCA 28; (2004) 217 CLR 424
Bankstown Foundry Pty Ltd v Braistina [1986] HCA 20; (1986) 160 CLR 301
CSR Ltd v Della Maddalena [2006] HCA 1; (2006) 80 ALJR 458
Devries v Australian National Railways Commission [1993] HCA 78; (1993) 177 CLR 472
Divjakoski v Boral Window Systems [2010] WADC 60
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540
Lackovic v Insurance Commission of Western Australia [2006] WASCA 38; (2006) 31 WAR 460
McLean v Tedman [1984] HCA 60; (1984) 155 CLR 306
New South Wales v Fahy [2007] HCA 20; (2007) 232 CLR 486
Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40

BUSS JA: I agree with Newnes JA.
NEWNES JA: This is an appeal against a decision of Fenbury DCJ in the District Court dismissing the appellant's claim for damages for personal injury: Divjakoski v Boral Window Systems [2010] WADC 60.
The appellant alleged that he was injured at work late on the evening of 2 March 2000, towards the end of his shift, when he slipped and fell on a wet floor. He claimed that he sustained injuries to his left shoulder and right arm which have left him with substantial residual disabilities, resulting in lost income and a substantial reduction in his future earning capacity.
The primary judge dismissed the appellant's claim, concluding that the appellant had failed to prove that the respondent was negligent. In addition, his Honour did not accept that the appellant had the incapacity he claimed.
The appellant appeals against the dismissal of his claim, contending that his Honour erred in making findings on credibility which were adverse to the appellant and in finding that the appellant had not established that the respondent was negligent.

Background

The appellant was born in Macedonia on 14 September 1961. He completed high school in 1980 and obtained a diploma in agriculture in 1982. After working for his parents on the family farm for a short time, the appellant commenced compulsory military service in January 1983. He was discharged in April 1984 and returned to work on his parents' farm. He married in November 1985. The appellant and his wife subsequently migrated to Australia, arriving in Sydney in February 1988 (ts 13 ‑ 14).
They moved to Perth in June 1988 and the appellant found full‑time employment with the Water Authority of Western Australia as a labourer. He also undertook other part‑time and casual work as a cleaner and a process worker.
In May 1989, the appellant and his wife bought a two bedroom unit in Hector Street, Osborne Park. They had children in June 1989 and October 1990. In May 1993 they purchased a bigger home in Marangaroo for $102,000. They let the Hector Street unit.

In 1994, the appellant registered a business known as Balcan Cleaning Services but the business never operated in any significant way, mainly because, according to the appellant, he was illiterate in English.
The appellant suffered a strain injury to his back on 16 February 1995 while employed as a drainage worker by the Water Authority. He returned to work on 8 May 1995 and, on 29 May 1995, injured his knee when he slipped on oil while descending some stairs in the course of the same employment. On 29 December 1995 he was made redundant by the Water Authority. The appellant commenced an action for damages against the Water Authority in respect of both of his injuries. The action was settled on 19 November 1998 for the sum of $190,000, exclusive of payments and allowances made pursuant to the Workers Compensation and Rehabilitation Act 1981 (WA), and an amount for costs.
Shortly after the settlement, the appellant applied to the Government Employees Superannuation Board (GESB) for payment of his superannuation entitlements on the basis that he was totally and permanently disabled for work. The application was supported by a medical opinion, given on 22 January 1999, by Dr Mastaglia, a rheumatology physician, that due to the appellant's knee and back injuries he was unemployable and was totally and permanently disabled in terms of the criteria used by the GESB. On 12 March 1999, the appellant received the sum of $42,947 from the GESB, on the basis of a partial but permanent disability (ts 25).
In the middle of March 1999, the appellant returned to Macedonia with his family for four months, returning to Australia in mid‑July.
According to the appellant, he did not work at all from about August 1995 until the beginning of 2000. In August 1999, the appellant applied to Centrelink for a disability pension on the basis of his inability to work due to his knee and back injuries. The application was unsuccessful.
The appellant said that during late 1999 his medical condition greatly improved. According to the appellant, he had extensive treatment on his knee with physiotherapy, hydrotherapy and cortisone injections, and he obtained advice from his general practitioner about knee exercises. He said that the knee symptoms he had endured for the previous four years, since his fall at work in 1995, completely disappeared and he decided to look for lighter work (ts 27).
On 20 January 2000, the appellant applied to a labour hire company, Integrated Workforce Ltd (IWL). The appellant's application to IWL received a favourable assessment. His attitude was described as 'very good - very keen'.
The appellant was placed by IWL at two factories, packing containers on a conveyor belt, before he was placed with the respondent. He commenced work at the respondent's Belmont factory on 28 February 2000, stacking and packing aluminium extrusions. The alleged accident occurred on 2 March 2000.

The alleged accident

The appellant's version of the alleged accident was as follows. On the evening of 2 March 2000, near the end of his 2.30 pm to 11.00 pm shift, he was instructed to take trolleys from the pre‑treatment area of the factory to the stacking area for the next morning's shift. He was wearing non‑slip safety boots. He saw water on the floor near the shower area in a walkway which he had to use to reach the stacking area. He said that because he saw the water he was 'very careful' but when he took his first step into the water his left leg slipped, he became airborne and fell backwards, landing painfully on his left shoulder as he broke his fall, and then turning to the right and hitting his right elbow on a nearby parapet wall (ts 51 ‑ 54).
The appellant said that he felt pain in his left shoulder and right elbow. He went to see a man named Jordan, who was the factory's first‑aid officer. Jordan sprayed the appellant's right elbow with antiseptic spray and gave him a bandaid for an abrasion. The appellant said he asked about recording the event in a book but was told it was too late in the shift and the book had been locked away. It was not in issue on the appeal that the appellant attended upon Jordan who observed an abrasion on the appellant's right elbow, sprayed it with antiseptic and applied a bandaid to it.
The appellant said that he declined to make a claim for workers' compensation initially but his symptoms deteriorated. He said that the respondent knew of his fall and made changes by quickly engaging a plumber to unblock the shower drain that had caused the flooding which resulted in the water on the walkway. It was not in issue on the appeal that the following day an unknown person called a plumber who cleared a blocked drain in a shower adjacent to the walkway.
The appellant said that, on 3 March 2000, he telephoned IWL and reported the accident. He attended upon his general practitioner that day and subsequently attended his shift at the respondent's factory. According to the appellant, on 6 March 2000 he was advised by IWL that they no longer had any work for him. On 8 March 2000, he signed an accident report form which became exhibit 7 at the trial. Although the appellant said that he did complain of injuries, the accident report form stated that he reported no injuries [33].
The appellant continued to see his general practitioner on a regular basis. Over the next nine years, he was referred for a variety of treatments to practitioners of various disciplines. The appellant underwent approximately 20 corticosteroidal injections to his right elbow under local anaesthetic and one to his wrist. In addition, the appellant had one bone scan, six ultrasound investigations, one electromyography, a number of MRI scans, and one acromioplasty.
The appellant gave evidence that he had not worked at all since 6 March 2000 and his only source of income has been payments from Centrelink. He said, however, that his wife had worked throughout that period, most of that time as a factory process worker for Ingham Chickens.

The pleaded case

The appellant pleaded, relevantly, that the accident occurred as he was walking through the walkway. He alleged that he slipped and fell on the wet and slippery floor, which was flooded with soapy water from the emergency shower as the result of a blockage of the shower drain.
The appellant alleged that the accident was caused by the respondent's negligence or breach of contract in (among other things):
(a)permitting the use of the emergency shower without the necessary plumbing work to carry away waste water;
(b)failing to display a sign warning that the walkway was slippery;
(c)permitting its employees to use paper towels to dry themselves after showering in the emergency shower;
(d)failing to instruct employees not to leave the wet and soggy paper towels on the floor, to prevent blockage to the shower drain;
(e)failing to check and maintain the drain and water disposal system of the emergency shower regularly or at all.
The appellant also pleaded similar breaches of duty under s 5 of the Occupiers' Liability Act 1985 (WA) and breaches of statutory duty under s 19 of the Occupational Safety and Health Act 1984 (WA). For the purposes of the appeal, nothing turns on the statutory claims.
The appellant alleged that as a result of the accident he had received extensive medical treatment and that he was likely to require medication, medical treatment and hospitalisation in the future. He pleaded a substantial list of residual disabilities, including pain in his left shoulder, restricted ability to carry out any tasks with his left arm at or above shoulder height, constant pain in his right arm, and severely restricted use of his right arm and hand.
The respondent (relevantly) denied that the accident had occurred at all and, in the alternative, said that if it had occurred it was not caused by any negligence or breach of duty on the respondent's part. The respondent denied that the appellant suffered the alleged injuries or disabilities, and pleaded that if he was disabled as alleged that was as a result of his previous workplace injuries. The respondent also pleaded contributory negligence.

The findings of the primary judge

The primary judge made adverse findings in respect of the appellant's credibility. His Honour concluded that the appellant's evidence on any controversial issue should not be accepted unless it was corroborated. He did so on the basis of several findings, namely, his finding that the appellant's claims as to his incapacity were inconsistent with surveillance evidence; what his Honour described as the appellant's 'astonishing' recovery of function in 1999 from his 1995 injuries; and his findings that the appellant had provided false information in his application for employment to IWL and in a number of applications for loans made to financial institutions, and had given dishonest evidence at trial as to by whom that information was provided.
In light of the grounds of appeal, it is necessary to describe those findings in more detail. The first related to surveillance DVDs which were admitted into evidence in respect of two periods of time, namely, after 2 March 2000 but before the appellant was aware that he was under surveillance, and subsequently when the appellant had become aware that he was under surveillance. Having viewed the DVDs, his Honour concluded that they demonstrated that for short hours the appellant did have a capacity for light work. His Honour concluded that they provided cause for suspicion as to the truth of the appellant's assertion that he could not do light work for a normal working week.
His Honour did not accept the appellant's explanation at trial that his capacity as shown in the DVDs had come about as a result of symptomatic relief achieved through corticosteroidal injections which provided relief for up to four months. The primary judge considered that the DVDs showing the appellant before the first injection and after the first injection respectively did not show any noticeable change in his capacity.
The primary judge concluded that in isolation the surveillance material did not 'deal a mortal blow' to the appellant's credibility, but that it damaged his credibility and it was not isolated [52].
His Honour then turned to the application form submitted by the appellant to IWL. The form set out the appellant's personal details and employment history. It contained a number of entries that were admitted by the appellant to be false. For instance, the form referred to the appellant having been employed as a cleaner by a company in Rockdale in New South Wales between 18 March 1996 and 15 November 1999. The appellant said that was false. In response to questions in the form as to whether the appellant had ever had a workers' compensation claim and whether he had ever suffered a serious injury, the answer 'no' had been inserted in each case. In evidence the appellant acknowledged that both answers were false.
At trial, the appellant denied that he was responsible for the false information. He gave evidence that, because of his illiteracy, while he was waiting in IWL's reception area he had approached a young Malaysian man who was waiting there and asked him for help to fill out the application form. According to the appellant, he completed his name and address and the Malaysian man filled out the rest of the form for him, inserting the false information without the appellant's knowledge. The appellant said that when he signed the form he was not aware it contained false information because he could not read English. The appellant did not explain why a stranger would of his own volition include false information on the form or how it had come about that all of the false information happened to be of benefit to the appellant. The primary judge also observed that it would be remarkable if it was purely a coincidence that (as the appellant's wife had given evidence) the appellant and his wife had in fact lived in Rockdale, in 1988 [109].
Not surprisingly, the primary judge rejected the appellant's explanation. His Honour concluded that the appellant had entered the false information on the form, or at least provided that information to another person to enable that person to complete it. That finding is not challenged on the appeal.
With regard to the loan applications, the primary judge noted that the appellant admitted that seven separate loan applications to financial institutions between February 2003 and January 2008 (exhibits 13, 16, 17, 20, 30, 31 and 58) contained false information as to the appellant's employment history and income. The loan amounts sought varied between $240,000 and $774,000. In different applications, the appellant's income was variously stated to be amounts of $20,000, $75,000, $95,000, $125,000 and $185,000, and the appellant's occupation to be a 'contract cleaner'. In each case, the represented income bore no relationship to the position of the appellant, who was in receipt of a disability pension of $160 per fortnight.
One of the financial institutions required an Australian Business Number (ABN) and in due course it was provided with a Business Registration Form, dated 29 November 2007, submitted by the appellant to the Australian Taxation Office to register for an ABN for a new business, Balcan Cleaning Services (exhibit 19). On the form, the appellant was named as the owner of the business and its main business activity was stated to be 'cleaning commercial premises'. Its estimated annual turnover was $50,000 to $99,999.
The appellant again denied that he was responsible for the false information. The appellant admitted signing the loan applications but said he signed all but one of them in blank and he was unaware that false information had been included in them. He said the finance broker acting for him in the transactions must have inserted it in order to gain his commission. In relation to the one completed application form, the appellant said he was not aware that it contained false information when he signed it because he was illiterate. The appellant denied giving the false information to the finance broker.
The primary judge rejected the appellant's explanation. He found that the appellant either knowingly gave the broker false information or knew that false information was being inserted and did not bother to make any enquiry. His Honour considered that the appellant could not possibly have thought that the applications for finance had any prospect of success if his true financial position was stated in the documents, namely that his only income was a Centrelink benefit and his wife was employed as a factory process worker. His Honour also noted that much of the handwriting on the documents was similar and that certain numbers and letters of the alphabet were written in a distinctive way typical of the appellant's handwriting. He concluded that it was highly likely that all of the documents were completed, at least in the main, by the appellant.
His Honour's findings in relation to the loan documents were not challenged on the appeal.
On the question of the appellant's English literacy, the primary judge noted that in his oral evidence the appellant's English was heavily accented but that he was quite articulate, with a good vocabulary, and he had a degree of sophistication in a business sense. Given those factors, and the time the appellant had been in Australia, his Honour concluded that the appellant had some literacy in English and was too intelligent and shrewd to sign documents in blank or in ignorance of their contents. His Honour concluded that the appellant had exaggerated, if not feigned, his level of illiteracy. That finding was not challenged on the appeal.
The primary judge went on to say that although it was unnecessary to decide questions of motive, his view as to the appellant's credibility, and his conclusion that the appellant had engaged in significant dishonesty, were 'fortified' by the appellant's financial imperatives. His Honour noted that as a result of his borrowings the appellant had accumulated a significant debt which was more than he could service from his income and he therefore had a motive to abuse the compensation system. His Honour observed that while the appellant had had lengthy contact with the medical profession over the years, including a number of possibly painful injections, his Honour considered it was conceivable the appellant would have been prepared to undergo painful medical treatment if there was 'a payout at the end' [124].

Turning to the accident alleged by the appellant, the primary judge described the appellant's account of his fall as 'difficult to follow, melodramatic and improbable', noting that the appellant was wearing non‑slip safety boots and, on his own account, he had approached the wet floor carefully [127]. His Honour accepted, however, that the appellant did fall and graze his elbow, although he considered it was not clear whether the appellant had fallen to the floor.
The primary judge found that on the evening in question the waste disposal system had not properly disposed of the waste water from the shower, although he did not make any finding as to what caused the blockage. But he concluded there was no evidence that the respondent knew or should reasonably have known of the water on the walkway. His Honour found that apart from the appellant's evidence that there was soapy water from the shower on the walkway every night, there was no other evidence that there had been water on the walkway previously. It is clearly implicit that his Honour did not accept the appellant's evidence as to earlier instances [136]. His Honour further found there was no evidence that on the day in question the water had been on the walkway long enough to give the respondent means of knowing of its presence.
His Honour found that the appellant had not shown that there was any reasonably foreseeable risk of injury [140], and had failed to prove that the respondent was negligent [152]. His Honour also found that the appellant did not have the incapacity he claimed [152], a finding that is not challenged on the appeal.
The primary judge accordingly dismissed the appellant's claim.

The grounds of appeal

The appellant relied upon the following grounds of appeal:
1.His Honour made an error of fact in finding against the appellant on credibility by:
(a)Placing inappropriate weight on surveillance evidence dated November 2000/January 2001 without properly taking into account the subsequent development of the injury and symptoms.
(b)Concluding that the appellant had fabricated a 1995 disability by erroneously finding that a recovery in 1999 was 'sudden' and 'astonishing'.
(c)Wrongly discounted the evidentiary value of medical treatment by finding that the treatment was obtained in order to further the claim.
2.His Honour erred in law and fact by concluding that there was no foreseeable risk of injury.
(a)His Honour erred by concluding that the length of time the risk existed made it unforeseeable;
(b)In all the circumstances of the case the risk of injury was foreseeable.

The disposition of the appeal

Ground 1

This is an appeal by way of rehearing. The task to be undertaken by an appellate court on an appeal by way of rehearing was explained by Gleeson CJ, Gummow and Kirby JJ in Fox v Percy [2003] HCA 22; (2003) 214 CLR 118, as follows:
Within the constraints marked out by the nature of the appellate process, the appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge's reasons. Appellate courts are not excused from the task of 'weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect'. In Warren v Coombes, the majority of this court reiterated the rule that:
'[I]n general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge but, once having reached its own conclusion, will not shrink from giving effect to it.'
…
However, the mere fact that a trial judge necessarily reached a conclusion favouring the witnesses of one party over those of another does not, and cannot, prevent the performance by a court of appeal of the functions imposed on it by statute. In particular cases incontrovertible facts or uncontested testimony will demonstrate that the trial judge's conclusions are erroneous, even when they appear to be, or are stated to be, based on credibility findings.
That this is so is demonstrated in several recent decisions of this Court. In some, quite rare, cases, although the facts fall short of being 'incontrovertible', an appellate conclusion may be reached that the decision at trial is 'glaringly improbable' or 'contrary to compelling inferences' in the case. In such circumstances, the appellate court is not relieved of its statutory functions by the fact that the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must 'not shrink from giving effect to' its own conclusion [25], [28] ‑ [29]. (footnotes omitted)
See also CSR Ltd v Della Maddalena [2006] HCA 1; (2006) 80 ALJR 458; Lackovic v Insurance Commission of Western Australia [2006] WASCA 38; (2006) 31 WAR 460 [65] ‑ [67].
But as Brennan, Gaudron and McHugh JJ observed in Devries v Australian National Railways Commission [1993] HCA 78; (1993) 177 CLR 472:
More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against - even strongly against - that finding of fact. If the trial judge's finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge 'has failed to use or has palpably misused his advantage' or has acted on evidence which was 'inconsistent with facts incontrovertibly established by the evidence' or which was 'glaringly improbable' (479). (footnotes omitted)
In considering the appellant's attack on the primary judge's finding as to credibility, it is significant that, as I have mentioned, there is no challenge to his Honour's findings as to the appellant's dishonesty in relation to the application for employment submitted to IWL or the loan applications, and there is also no challenge to his finding that the appellant gave dishonest evidence at trial as to the source of the false information. Nor is there any challenge to the finding that the appellant deliberately exaggerated his lack of English literacy.
Those matters alone amply justified the conclusion of the primary judge that the evidence of the appellant could not be relied upon unless it was corroborated. It is evident that the appellant was prepared to say whatever he thought was necessary to advance his interests without regard to the truth. While it is the case that his Honour also referred to the surveillance evidence in connection with his finding as to the appellant's credibility, his Honour did not regard the surveillance evidence as being critical on that issue.
In the circumstances, I do not consider that the specific complaints made in this ground of appeal are capable of impugning his Honour's finding on the appellant's credibility. In any event, I am not persuaded there is any substance in them.
The first of those complaints concerns the conclusion of the primary judge that the surveillance film provided cause for suspicion as to whether the appellant's assertion that he could not do light work was true as there was no noticeable change in the appellant's functionality as shown in the surveillance film before and after the first corticosteroidal injection on 20 July 2000. His Honour considered that the appellant's level of functionality as shown in the films was unlikely to be due to the injections.
I have viewed the relevant surveillance films (DVD footage taken in June and September 2000) and I have also had regard to the medical reports for the relevant period (exhibits 42.66, 46.62 and 48.1) and the appellant's evidence in relation to it (ts 180 ‑ 181, 185, 189 ‑ 195). Like the primary judge, on the DVD footage I could see no substantial change in the appellant's level of functionality before and after the corticosteroidal injection, and his level before the first injection seemed to me, too, inconsistent with the statements the appellant gave to doctors at the time as to his level of disability. In my opinion, it was plainly open to the primary judge to form the views he did. This element of the ground of appeal is without merit.
The appellant further contended that the primary judge had reached his adverse conclusion as to credibility based, in part, on an erroneous finding that the appellant had fabricated his 1995 injuries. This complaint was based on the statement of the primary judge that the appellant had had a 'somewhat sudden recovery during late 1999 from the residual disabilities of his 1995 work accidents' [55] and, in summarising the basis of his finding as to the appellant's credibility, his Honour's reference to 'what might be described as [the appellant's] astonishing recovery of function in 1999' [116].
The appellant submitted that his Honour had erred in concluding that the appellant had recovered in such a manner as to indicate that his 1995 injuries had been fabricated. It was submitted that the medical evidence revealed that the appellant had suffered a real and substantial injury and the weight of the evidence showed a gradual improvement in his knee symptoms between 1998 and 2000. In addition, the rejection in late 1999 of his application to Centrelink for a pension gave the appellant additional motivation to look for work.
In my view, this submission proceeds upon a misunderstanding of his Honour's reasons. As I understand his Honour's reasons, the suggestion was not that the appellant had fabricated the 1995 injuries, but rather that at least by late 1999 the appellant was feigning, or at least exaggerating, his symptoms in order to gain benefits to which he would not otherwise have been entitled.
There was substantial evidence to support that view. From the time of the 1995 injuries until the end of 1999 the appellant consistently presented to various medical practitioners as being totally and permanently incapacitated for work. Contrary to the submission put by the appellant's counsel, the evidence of the appellant's presentation between 1998 and 2000 does not reflect a gradual improvement in the appellant's symptoms.
In September 1998, the appellant saw an occupational physician, Dr Harper. He told Dr Harper that his knee was 'much much worse', and his lower back pain, right leg pain, and limp were unchanged (ts 475 ‑ 6, exhibit 47.22). Dr Harper concluded that the appellant was incapacitated for all occupations 'requiring physical activity' but was physically capable of attending a workplace for 'limited hours' in a sedentary occupation if he could develop the necessary language and other skills for such employment (exhibit 47.22).
In his report of 22 January 1999, Dr Mastaglia concluded that by reason of his back and knee injuries the appellant was totally and permanently disabled according to the GESB criteria, and unemployable (exhibit 69). Dr Mastaglia reported, among other things, that the appellant had chronic lumbar pain in the lumbar sacral region and was dependant upon Amitriptyline (an anti‑depressant) and Panadeine Forte (an analgesic).
Upon the appellant's return in July 1999 from some four months in Macedonia, he applied to Centrelink for a pension on the basis that he was totally and permanently incapacitated for work. The application was unsuccessful. In evidence, the appellant said that that rejection gave him the motivation to obtain work (ts 161).
However, in October 1999 he presented to Dr Cheung complaining of chronic lumbar back pain and persistent left knee pain. Following that consultation, Dr Cheung reported that the appellant was incapacitated for any occupation requiring physical activity (exhibit 49.10).
Subsequently, on 29 December 1999, the appellant attended upon Dr Cheung seeking a prescription for medication for his knee and back pain. Dr Cheung gave evidence that at that consultation there was no indication there had been any improvement in the appellant's medical condition and nothing was said by the appellant about seeking employment. Dr Cheung considered that the appellant was fit only for part‑time sedentary work (ts 517 ‑ 519). Dr Cheung said that there had been no improvement in the appellant's medical condition in the period August 1999 to 29 December 1999 (ts 524). Dr Cheung was not consulted again by the appellant until 3 March 2000, after the alleged accident at the respondent's factory.
As I have mentioned, on 20 January 2000, some three weeks after he saw Dr Cheung, the appellant approached IWL to obtain full‑time employment and, on 28 February 2000, commenced such employment with the respondent involving the packing and stacking of aluminium extrusions up to six metres in length (ts 37 ‑ 38).
In my opinion, the comment of the primary judge that the appellant had had an 'astonishing recovery' from his 1995 injuries was entirely justified.
The final complaint of the appellant under this ground was that the primary judge had wrongly discounted the evidentiary value of medical treatment by finding that the treatment was obtained in order to further the claim.
One of the difficulties with this aspect of the appeal is that it does not go to the basis upon which the primary judge found that the appellant was not a credible witness. It concerns the observation his Honour made that it was conceivable that a person desperate for money, as he considered the appellant was, would be prepared to undergo painful medical treatment (which in the context must be a reference to the corticosteroidal injections) if there was a financial benefit at the end. That observation was directed to the appellant's financial motives for pursuing the claim and, as his Honour made clear, the question of motive was not essential to his conclusion as to credibility: it simply 'further fortified' that conclusion.
In any event, I am unable to accept that his Honour was in error in the view he expressed. From February 2003 the appellant was seeking substantial loans from financial institutions and, as appears by exhibit 13, by late 2004 he had substantial debts. By the middle of 2007 his debts amounted to some $670,000 (ts 253). As I have said, his only income was a Centrelink payment of some $160 per fortnight and his wife was working as a process worker in a chicken processing factory earning an income, in 2008 ‑ 2009, of some $42,000 (before tax) (ts 271). The appellant had every reason to be anxious to maximise the damages he received from the respondent. Given those circumstances and the appellant's demonstrated dishonesty, his Honour was entitled to conclude that it was conceivable the appellant would ask for the corticosteroidal injections (as Dr Cheung said he did) (ts 540 ‑ 549) and undergo those injections in an endeavour to inflate his claim.
I would dismiss this ground of appeal.

Ground 2

The relevant legal principles were not in issue at trial or on the appeal. It was common ground that the respondent owed to the appellant a duty to take reasonable care to avoid exposing the appellant to unnecessary risks of injury: Bankstown Foundry Pty Ltd v Braistina [1986] HCA 20; (1986) 160 CLR 301, 307 ‑ 308. That duty included an obligation to take reasonable steps to establish, maintain and enforce a safe system of work. See Andar Transport Pty Ltd v Brambles Ltd [2004] HCA 28; (2004) 217 CLR 424 [34] (Gleeson CJ, McHugh, Gummow, Hayne & Heydon JJ); McLean v Tedman [1984] HCA 60; (1984) 155 CLR 306, 313 (Mason, Wilson, Brennan & Dawson JJ).
In deciding whether there has been a breach of that duty, the first question is whether a reasonable person in the respondent's position would have foreseen that its conduct involved a risk of injury to the appellant or a class of persons including the appellant. A risk which is not far‑fetched or fanciful is real and therefore foreseeable. It is unnecessary that a defendant should have foreseen the precise risk of injury or how it occurred. It is sufficient if the risk is within a class of risks that the defendant should, in a general way, have foreseen. See Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540 [87] (McHugh J).
If a risk of injury was foreseeable, the question then is what a reasonable person would do by way of response to the risk. That calls for a consideration, among other things, of the magnitude of the risk and the degree of the probability of its occurrence. See Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40, 47 ‑ 48. The determination of what has to be done in order to discharge the duty involves looking forward to identify what a reasonable person would have done, not backward to identify what would have avoided the injury: New South Wales v Fahy [2007] HCA 20; (2007) 232 CLR 486 [57].
In substance, the appellant's contention, as I understood it, was that the primary judge should have found that it was foreseeable the drainage system for the showers would become blocked, causing water to leak onto the walkway and create a slippery surface. In those circumstances, it was submitted, the respondent was negligent in failing to take reasonable steps to prevent such a blockage, or to warn employees of the existence of the wet surface of the walkway if a blockage occurred.
It was not in dispute on the appeal that on the evening in question a blockage occurred in a shower adjacent to the walkway and that it was cleared the next day by a plumber. But there was no evidence to support the appellant's pleaded allegation that the plumbing of the drainage system was itself defective or inadequate. It is also clear that the primary judge did not accept the appellant's evidence that on previous occasions water had leaked onto the walkway [139] ‑ [140]. That is not challenged on the appeal. The evidence also did not reveal how long the water had been on the floor before the appellant came upon it.
What is clear, however, is that the absence of any warning of the presence of water on the walkway played no part in the accident. The appellant was aware there was water on the walkway before he walked over it. He considered that caution was required in those circumstances and said he approached the walkway very carefully because of the presence of the water. The appellant was wearing non‑slip safety boots provided to him by the respondent. There is nothing to suggest that the walkway posed some risk of slipping which was not apparent to the appellant or which could not be overcome by the exercise of ordinary caution.
Moreover, it was the evidence of Mr Cacic, an expert whose report (exhibit 43) was tendered by the appellant, that the walkway had satisfactory wet slip resistance and was satisfactory for pedestrian use under wet conditions. Mr Cacic reached that conclusion based on tests he carried out in 2007. At trial, the appellant contended that the non‑slip surface which was in place when he inspected the area with Mr Cacic in 2007 had been installed since the accident (ts 101). The primary judge rejected that contention [37]. His Honour accepted the evidence of employees of the respondent that the surface had not been altered. That finding is not challenged.
In the circumstances, it is not surprising that the primary judge found the appellant's dramatic account of the accident to be improbable. The appellant was wearing non‑slip boots, he was aware of the water, he said

he exercised particular care because of the presence of the water, and the surface of the walkway was satisfactory for pedestrian use under wet conditions. How the appellant could have fallen over and suffered an injury on the walkway, much less how he could have fallen in the dramatic way he described, is inexplicable on the evidence at trial.

The onus lay on the appellant to establish, on the balance of probabilities, that a breach of duty on the part of the respondent was a cause of the injuries he allegedly suffered. On the evidence the appellant failed to do so. However the appellant's injuries may have come about (if, indeed, he suffered the alleged injuries), the appellant failed to show that they were caused by any breach of duty on the part of the respondent.
In my view, the primary judge correctly found that the appellant had failed to make out his claim.

Conclusion

I would dismiss the appeal.
MURPHY JA: I have had the advantage of reading the reasons of Newnes JA in draft. I have also examined the relevant surveillance films and other evidence to which his Honour has referred in his reasons.
I agree with Newnes JA that the appeal should be dismissed, for the reasons which his Honour gives.