Finniss v State of New South Wales (No. 1)

[2023] NSWDC 83

District Court

New South Wales

Medium Neutral Citation:

Finniss v State of New South Wales (No. 1) [2023] NSWDC 83

Hearing dates:

15-17 February, 20 February 2023.

Date of orders:

22 February 2023

Decision date:

22 February 2023

Jurisdiction:

Civil

Before:

Neilson DCJ

Decision:

See pars [150] and [151].

Catchwords:

CIVIL – TORTS – OCCUPIERS LIABILITY – Plaintiff employed by ‘Facilities First’ at a primary school occupied by the Defendant – Plaintiff hit head on lintel of a low doorway as he was leaving a storeroom – Whether the Defendant breached a duty of care owed to the Plaintiff – Whether an obvious risk of injury – Plaintiff had used this doorway on about 64 occasions prior to date of injury.

Legislation Cited:

Civil Liability Act 2002 (NSW)

Crown Proceedings Act 1988 (NSW)

Workers Compensation Act 1987 (NSW)

Cases Cited:

Bostik Australia Pty Ltd v Liddiard & Anor [2009] NSWCA167

CG Maloney Pty Ltd v Hutton Potts [2006] NSWCA 136

Hennessy v Patrick Stevedores Operations and Anor [2014] NSWSC 1716

Hoad v Peel Valley Exporters Pty Ltd [2008] NSWSC 981

Stevens v Brodribb Sawmilling Co. Pty Ltd (1986) 160 CLR 16; [1986] HCA 1

Sungravure Pty Ltd v Meani (1964) 110 CLR 24

Wilkinson v Law Courts Limited [2001] NSWCA196

Texts Cited:

Broom's Legal Maxims (1939)

D. Villa, Civil Liability Act (3rd edition), Lawbook Co., 2013

Glass, McHugh, Douglas, The Liability of Employers in Damages for Personal Injury (2nd edition, Law Book Company, 1979)

Category:

Principal judgment

Parties:

Plaintiff – Craig Charles Finniss
Defendant – State of New South Wales

Representation:

Counsel:
Plaintiff – E. Chrysostomou
Defendant – D. O’Dowd.
Solicitors:
Plaintiff - Court Legal Pty Limited
Defendant – Kennedy’s

File Number(s):

2021/00172686

Publication restriction:

Nil.

Judgment

Background

The Plaintiff’s work history

The Plaintiff’s work at Avalon Public School

The incident

The complaint to the principal

Efforts to remedy the issue

The proceedings

Nature of the Defendant’s duty of care

Damages

Judgment - ex tempore

Background

1. HIS HONOUR: The Plaintiff, Mr Craig Charles Finniss, brings an action for damages for personal injury which he sustained on 25 October 2019 about 4pm. That is the date given by Mr Finniss in his evidence. However, I note that Exhibit KK indicates that the incident occurred at 5pm. Nothing turns on that minor inconsistency.

2. The Plaintiff brings these proceedings under the Crown Proceedings Act 1988, s 5, although the pleadings, both the Statement of Claim, the Defence, and the Amended defence, do not reflect that reality. That merely points to sloppy pleading on behalf of the solicitors for each of the parties. The Plaintiff was not employed by the Defendant. The Plaintiff was in fact employed by Facilities First Australia Pty Limited ("Facilities First"). That company provided cleaning services to, inter alia, the Avalon Public School.

The Plaintiff’s work history

3. The Plaintiff had been working as a cleaner at the Avalon Public School since 2005. However, he had never been employed by the Department of Education. He was employed on a continuous basis by a number of different cleaning companies. The cleaning companies were Spotless Cleaning Services, then Transfield, then Broadspectrum Pty Ltd, and finally Facilities First. Exhibit B is an offer of full-time employment by Transfield Services (Australia) Pty Ltd (“Transfield"). Exhibit B commences with this remark:

"As an existing Cleaner engaged on NSW Government Cleaning Contracts, we are delighted to offer you employment with Transfield Services (Australia) Pty Limited."

That was an offer of full-time employment commencing on 1 July 2011.

4. The next contractor to the Department of Education was Broadspectrum (Australia) Pty Ltd ("Broadspectrum"). Exhibit C is a letter from that employer to the Plaintiff bearing date 17 December 2018. It commences with this sentence:

"Further to our letter dated 27 November 2018, and as you should now be aware, we were unsuccessful and had lost our contract to provide cleaning services in the North Sydney Region after March 2019."

5. The letter goes on to advise the Plaintiff that his employment with Broadspectrum would end with effect on 28 February 2019. Exhibit D is an offer of permanent full-time employment by Facilities First commencing on 1 March 2019. That letter also refers to Facilities First being the provider of services to the New South Wales Government for the cleaning of the Northern Sydney Region schools commencing on Friday 1 March 2019. The letter includes this statement:

"As a former full-time employee employed by Broadspectrum before 31 March 2018, the Company agrees:

(a) That you will be employed in the same location with the same hours (subject to a roster);

(b) To provide you with personal/carer’s leave of 10 days upon commencement of employment (rather than accruing regularly throughout the year); and

(c) To recognise your annual leave and rostered time off entitlement (if applicable) accrued during your employment with Broadspectrum."

The Plaintiff’s work at Avalon Public School

6. In his evidence, the Plaintiff told me that he attended an induction meeting for cleaners going to work for Facilities First in January 2019 at the Dee Why RSL Club. He told me that about 100 people attended that meeting, that they were all school cleaners. They were advised of the basic use of equipment, and they were supplied with a Facilities First uniform. They were also told of the company's occupational, health, and safety, procedures. There was also a "site induction" carried out by Facilities First, but that was on 20 January 2020, that is, after the Plaintiff's injury. Exhibit E is the site induction form that has been signed by the Plaintiff and by the two other cleaners who worked for Facilities First at the Avalon Public School.

7. Exhibit F is a work schedule given to the Plaintiff by Facilities First. On the back of it is a colour-coded copy of a map of the Avalon Public School. The Plaintiff was required to clean the buildings marked with pink highlighter on the map. Exhibit F shows that the Plaintiff was a full-time cleaner working 40 hours per week and that his hours were to be from 5:00am to 9:00am and then from 2:00pm to 6:00pm each working day. According to Exhibit F, the Plaintiff's morning shift was broken up thus:

"5:00 am sign in: check communication book. Collect keys.

5:05 am Blocks: M, N; collect garbage, dusting wiping, vacuuming the carpeted floor, restocking the staff toilets and students toilets.

9:00 am sign out."

The afternoon shift is described in this fashion:

"2:00 pm sign in, check communication book, collect keys.

2:05 pm Blocks: Q: R: Canteen: - collect rubbish from offices, toilets, and classrooms, vacuum the carpeted floors, clean the staff and student toilets. 5:00 pm clean the canteen and OOSH.

6:00 pm sign out."

On the back of the document, blocks A, B, C, D, E, and F, have been highlighted in yellow. Blocks G, H, J, K, Q, P, and S, have been highlighted in green, as were some minor buildings beneath block B and west of block S. The buildings highlighted in yellow and green were obviously not ones to be cleaned by the Plaintiff. Blocks L, M, N, Q, and R have been highlighted in pink. They were the buildings to be cleaned by the Plaintiff. Exhibit H is a set of site plans which I understand from the evidence given by Mr Rankin, the present school principal, to be plans made by the Department of Education, and they give an overall site plan, which is the same plan on the back of Exhibit F, and then plans for each level of each building in the school.

8. Block L is in fact the school hall. To its south-western corner has been attached the school canteen. Block M has two stories. On the ground floor there is a staff toilet appurtenant to a building marked "deputy" which I took to be a reference to the office of the deputy principal, but it appears from the evidence that it was used as some sort of a staffroom. On the first floor of building M, there is another staff toilet. The ground floor of building N shows on the northern end that there is a girls toilet and a boys toilet near the entrance to the uniform shop. On the first floor there is a staff toilet which would be over the area occupied by the toilets on the ground floor. Building Q is a block of toilets for both boys and girls. I was told that, although it was not marked on the plan, there is in the southwest corner of the building, in the area marked "girls toilet", a storeroom used by cleaners.

9. Block R has a ground floor which shows a number of classrooms, as well as various stores. It has a basement. And at the northern end of the basement, one can see a storeroom marked "RR9001". One can see on the northern side of the block an entrance to the storeroom. The Plaintiff's injury occurred when he was leaving the storeroom under block R. It is convenient to refer to it merely as “the basement of block R” or "the basement". The Plaintiff had been using the basement ever since he started working at the Avalon Public School. I shall have more to say about that shortly.

10. There was evidence of the Plaintiff's having changed his work hours. Exhibit PP is a document on the stationery of Broadspectrum and bears several different dates. The operative date would appear to be 10 December 2017. The Plaintiff was then supposed to work from 5:00am to 9:00am each morning and 2:00pm to 6:00pm in the afternoon. He proposed to change his hours to be 3:00am to 7:00am and from 3:00pm to 7:00pm. That change was requested by the Plaintiff's supervisor and notice was given on 10 December 2017. The document has been signed off by the Plaintiff on 8 December 2017, by his supervisor Ms Bronwyn Reynolds on 10 December 2017 and by a manager, Paul Harrigan on 1 February 2018. It appears that although Exhibit F dictates other hours, that the Plaintiff liked to work from 3:00 to 7:00 both in the morning and the afternoon. His evidence is that his hours changed from 3:00 to 7:00 in both the morning and afternoon to 5:00am to 9:00am and to 2:00pm to 6:00pm after his injury sometime in 2020.

11. The Plaintiff told me he would enter the basement of block R about once per term for a period of some 13 years. If that be correct, he entered the basement on about 52 occasions prior to 1 March 2019. Commencing on 1 March 2019, he told me that he would enter the basement of block R every second or third week. That gives a range of nine to 14 weeks which could be averaged out at, say, 12 weeks. Accordingly, prior to the injury which befell the Plaintiff on 25 October 2019, he had been in and out of the basement on at least 64 occasions. With some hyperbole, which I have noted in previous cases involving other counsel, Mr O'Dowd submitted that the Plaintiff must have used this basement on about 80 occasions.

12. The entrance to the basement of block R, I am told, was 1.485 metres high and 0.79 metres wide. Using the old terminology, the height of the doorway was 4 foot 10 and a half inches. The Plaintiff told me in evidence that he was 5 foot 10 inches tall. He described the height of the doorway into the basement as being about 5 foot or 4 foot 10 inches. According to Dr Anthony Dinnen, who interviewed the Plaintiff on 26 May 2021, he was 5 foot 11 inches tall. The same height is recorded by Dr Andrew Porteous, an occupational physician, who examined the Plaintiff on both 27 May 2021 and 15 September 2021. One can conclude that it is probably more likely that Mr Finniss is 5 foot 11 rather than 5 foot 10, and that this is not a case that involves any question of an inch.

13. The entrance to the basement, is visually depicted on Exhibit G1, and in the first photo in Exhibit LL which shows Mr Rankin, the current school principal, standing outside the entrance with the keys in the lock. Between the taking of the photographs in Exhibit G and the taking of the photograph in Exhibit LL, there clearly has been a painting of the doorway. In one photograph, it is coloured green. In the other, it is coloured blue. Again, nothing turns on that. After going through the doorway, one steps down onto the earthen floor of the basement. That is clear from photograph G1. When one enters the basement, one must turn on the lights. How to turn on the lights is shown in Exhibit G2, a photograph. The photograph shows both a switch and a power point.

14. The power point has inserted into it a double adapter, and from that double adapter a plug has been inserted into the upper outlet and leads off to the left of the photograph. What it turns on, I do not know. I assume that the single switch besides the switch which operates the power outlet is the lighting switch. The appearance of the switches indicates that they were added after the building had been constructed and appear to represent some ad hoc arrangement.

15. Shortly after going through the doorway and entering into the basement is a large pipe hanging down from underneath the floor above. It has been swathed in padding which is held in place by duct tape. It is clear from the evidence of the Plaintiff and from the very photograph itself that the suspended pipe which appears to me to be a sewer pipe was seen as some sort of hazard upon which people would hit their head. Above that pipe, swathed in padding, are much smaller pipes or plastic tubing which might carry, for example, a water supply, or might merely carry electrical cables.

16. The important point to note is that the suspended pipe was clearly a hazard and, from the Plaintiff's evidence, one had to duck underneath it in order to progress further into the storage area. That storage area is depicted in photograph G3 which shows both an earthen floor and what would appear to be shelving erected against one of the walls of the basement. In the foreground, on the shelving, one can discern electrical fittings and a plumbing fitting and other boxes.

17. The evidence also discloses that the basement was used for the storage of ‘witches hats’, which can be seen in photograph G4, a wheelbarrow, which can be seen in photographs G1 and G5, and was also used for the storage of chairs, which can be seen in the third photograph of Exhibit LL. The evidence is that the floor of the basement sloped upwards, indicating that block R was built on a slope, and the slope went further into the basement and narrowed the distance between the earthen floor and the underside of the floor above. As one went further into the basement, one might be able to strike one's head on a joist supporting the floor above, or some other structure. For example, in photograph G3, one can see a suspended pipe and other pipes heading away from the photographer and, for example, a fluorescent light fitting attached beneath the joists of the floor above which further shortened the distance between the floor of the basement and where one might strike one's head on the light fitting if the light were not turned on and one did not know that it was there.

18. The Plaintiff's duties did not require him to clean the basement. However, the Defendant stored in the basement its supply of toilet paper and paper hand towels, which were the property of the Department of Education and were delivered to the school by or on behalf of the Department. The toilet paper and hand towel were not supplied by any of the cleaning companies, but rather by the Department. Prior to 1 March 2019, the Plaintiff only visited the basement about once per term. The reason why that is so is because a cleaner would take bulk packaging of toilet paper from the basement and take it to one of the many cleaning rooms or cleaning closets scattered throughout the school. For example, in block M and block N, there were cleaners' stores. There was also a cleaners' room in block Q, albeit that is not marked on the plan for that building.

19. The Plaintiff's work commencing on 1 March 2019 with Facilities First brought about one significant change. The Plaintiff was now required to clean one of the toilet blocks which was block Q. Previously, that had been done by another of the cleaners, merely referred to as "Charles". Charles' surname is recorded on Exhibit E, but I find it difficult to decipher that handwriting. When the Plaintiff only needed to clean a small number of toilets, he did not need to regularly visit the storeroom and made only one visit per term prior to 1 March 2019. After 1 March 2019 when the Plaintiff was required to clean the toilet block, block Q, he had to go to the basement more regularly, as I have earlier stated, every two to three weeks. On the afternoon of 25 October 2019, a Friday, the Plaintiff went to the basement of block R to obtain toilet rolls in bulk for distribution to the toilets in one of the buildings that he was required to clean.

20. The Plaintiff and the other two cleaners employed by Facilities First at the Avalon Public School each had a key to the basement of block R. It is clear that the general assistant at the school, Mr Jonathon Willis, would also have had a key to the storeroom, and it is likely that Mr Alan Moran, a technical support officer who sometimes assisted Jonathon Willis, may also have had a key to the storeroom. It is clear that Mr Rankin himself had a key, and it is likely that a number of other personnel at the school would have had a key to the basement of block R.

The incident

21. On 25 October 2019 the Plaintiff went to block R. He opened the door, ducked underneath the lintel of the door, and stepped down onto the earthenware floor. He used his right hand to turn on the light. He then ducked under the padded pipe and went to the rack where the toilet paper was stored. He took into each hand a package of 20 rolls of toilet paper. This was described as being in "plastic". Exhibit J is a photograph of bulk packages of toilet paper wrapped in a light form of plastic stored in a storeroom, which was not the basement of R block. With a package of 20 rolls of toilet paper in each hand, probably held by either loose plastic or by penetrating the plastic with a finger and using fingers to carry the torn packaging as a handle, the Plaintiff proceeded to leave the basement. He ducked under the padded pipe. He placed the package of toilet paper in his left hand onto the ground and turned off the light with his left hand. He retrieved the package of toilet paper in his left hand and proceeded to duck under the lintel to leave the basement. However, before he was wholly outside the doorway of the basement, he rose up prematurely, and struck the crown of his head on the lintel of the doorframe, and that caused an injury or injuries which are the subject of these proceedings.

22. The Plaintiff had been provided by facilities first with a "uniform". That uniform included a baseball cap. However, the Plaintiff was wearing another baseball cap, one of his own, at the time of this incident. He was wearing it as it is designed to be worn, with the peak over his eyes. That could well have impeded his ability to perceive whether he had successfully left the doorway before standing up. I will refer to that evidence a little later. Nothing turns on the fact that the Plaintiff was wearing his own baseball cap when a baseball cap had been provided to him as uniform by his employer, Facilities First. However, it is apparent that the wearing of the baseball cap with the peak in front may have impeded the Plaintiff's ability to properly perceive whether he had successfully negotiated the doorway of the basement.

23. The cross-examination of the Plaintiff on this issue commences at T130.26. It starts off in this fashion:

"Q. Let me just ask you this question, as you sit there with no hat on, if you were, as you were on the day, now on the day, ascending out of the doorway of the basement below block R, with nothing on your head, as you step up, you have upward peripheral vision which shows you where the top of the lintel, the lintel of the door, door frame is, don’t you?

A. Yeah.

Q. That, of course, consciously and potentially unconsciously informs or dictates how far you are outside beyond that obstruction before you stand to your full height, doesn’t it?

A. Yep.

Q. But if you're wearing a cap then that is obscuring a significant degree of your peripheral upward vision, so you're not conscious of that lintel above you before you stand up, correct?

A. No, I'm conscious if it's there.

Q. Or you knew it was there because of your experience, correct? But in the actual act of getting out of there you didn’t have the benefit of the real time peripheral vision to guide you when you were about to stand up? Would you agree with that?

A. Not entirely.

Q. What other explanation could there possibly be, sir?

A. Well, because I was carrying something, so concentration was all over the place. I'm looking, I'm grabbing things.

24. That cross-examination continued on p 131 and at the top of p 132, I pointed out that this was not pleaded. There was then a discussion about the pleadings with counsel for each of the parties, and I allowed the cross-examination to continue, but interrupted it to try to get to the point at T133.32. I asked these two questions, and received these answers:

"Q. I think the point of what he's trying to put to you, Mr Finniss, is this, that had you not been wearing the baseball cap, you may have been able to perceive that you hadn't got through the doorway before standing up.

A. Correct.

Q. Is that right?

A. Yeah.

25. At the time of this event, the Plaintiff was 57 years old. One might think that, unlike modern youth, he was not familiar with wearing his baseball cap backwards, that is, with the peak over the back of his neck. However, certain photographs in Exhibit GG, extracts from Facebook, clearly show that in 2019 he was photographed wearing a baseball cap backwards. The Plaintiff had not previously hit his head on the lintel of the doorway. He had previously hit his head on the low hanging pipe, but that was after it had been swathed in padding held in place by the duct tape.

26. The Plaintiff gave evidence of having made a number of complaints about the low ceiling of, and the doorway into, the basement. Commencing at T65.44, the Plaintiff was asked to tell me about speaking to anybody about the R block's storeroom prior to October 2019. He told me that the first person to whom he spoke was the lady he called “Bronwyn”, and to “Jono” (the nickname of Johnathan Willis), and Alan, the technical support officer whose surname was Moran to whom I have earlier referred. Bronwyn was a supervisor. We know that her name was Bronwyn Reynolds from Exhibit PP. The Plaintiff told me that he spoke to her at the beginning of 2019 when the cleaning company was still Broadspectrum. However, the evidence also discloses that, like the Plaintiff and his co-cleaner, Charles, Bronwyn Reynolds stayed on as the supervisor for Facilities First after Broadspectrum lost the cleaning contract for the Northern Sydney region of the NSW Department of Education. The Plaintiff said that he complained to Jono in the middle of 2019, and in 2018. He also spoke to Alan Moran about the same time in 2019, that is, in the middle of 2019. He also spoke to the principal, Mr Andrew Timothy Rankin in "around June 2019".

The complaint to the principal

27. Mr Rankin gave evidence in the Defendant's case. He commenced as the principal at the Avalon Public School in October 2016. At the time of the Plaintiff's injury, Mr Rankin had been the principal for some three years. The Plaintiff said to Mr Rankin words to the effect that it was time to get the paper towels and the toilet paper out of the basement of block R because there were too many people banging their heads when using that basement.

28. According to the Plaintiff, Mr Rankin said "I'll look into it and I'll get it moved". In cross-examination, it was suggested to the Plaintiff that the only conversation that he had with Mr Rankin about the movement of the toilet paper and the paper towel from the storeroom from the basement was because the paper was being exposed to dampness or moisture. The Plaintiff agreed that that was mentioned also, but he maintained that he also stated that it was because of the difficulties in using the low entrance and with low ceiling, that is, difficulties in avoiding hitting one's head.

29. It appears to have been fairly common ground that it was well known that there was a risk of striking one's head in going under a low doorway and striking one's head on the piping, and any low part of the effective ceiling of the basement, and that people had to be careful. Mr Rankin could only remember the subject of the paper being exposed to moisture being raised by the Plaintiff. However, he conceded that the other subject may have been mentioned. It is clear from Mr Rankin's evidence that he made inquiries as to where the toilet paper and the paper towel could be moved, and was told by Alan Moran that they could be moved to a storeroom in L block which is identified as room LL0026 in the south eastern corner of L block.

30. On Wednesday 5 June 2019 at 11.30am, Mr Rankin sent an email to Jono and to Alan Moran, and copied it to Kylie Jarrett, who was the school administration manager, to Ms Bianca Howarth the deputy principal for years K to 2, and to Lisa Weber who was otherwise the deputy principal. The substance of the email is this:

"Dear Jono and Alan,

I have clarified with Craig [the Plaintiff] the location for cleaners’ supplies. All supplies and toilet paper are to be delivered to the store adjacent to the disabled toilet by the hall. There is no longer a need to deliver under R block - that will mean less bruises on heads!

To avoid clogging the admin corridors, these cleaner delivers (and any classroom/admin deliveries) should be cleared the day that they arrive.

I have clarified in the attached revised 'GA daily to do list' that I gave you earlier this year - it's highlighted in yellow. Of course, if you have any questions, please let me know.

Many thanks for your on-going support to provide top quality service to the entire Avalon team!

Cheers,"

31. The attached general assistant role and responsibilities update (revised 5 June 2019) par [7] is this:

"Ensure all deliveries are cleared from Admin block and delivered to their intended person in a timely fashion and before going home each day - this includes classroom deliveries and cleaners' materials. Classroom deliveries should be delivered into classrooms, and all cleaners' materials and toilet paper to the store adjacent to the disabled toilet near the hall."

The whole of that paragraph of the general assistant role and responsibilities update has been highlighted in yellow.

32. In-chief Mr Rankin gave this evidence:

"Q. Did anyone, either Craig or Jono, ever complain to you about the use of the storeroom underneath block R because of its height?"

A. I don't recall ever - that, that ever happening. It was - it was a - it was fairly commonly known in - amongst the staff who used it that it's a very low entrance, you needed to mind your head when you went in there. But it was never - to my recollection, never raised as a serious issue and one to be - you know, one to be - one to be addressed because there's literally nothing you can do about the height of the ceiling.

Q. Because the height the ceiling was indeed the floor of the classroom?

A. Yes, correct. Yes, correct."

Mr O'Dowd then asked Mr Rankin about the remark "that will mean less bruises on heads!". Mr Rankin gave this answer:

"I think Craig and I in particular have a - a pretty - a very humorous relationship. And I don't know if the Court has seen the, the chain of emails which Craig and I sent back and forth. There's a lot of, if said banter going on in - with, with general humour. That's the nature of our communications. We had a good rapport in that way. And one of the comments was, 'Yeah, mind your head', because you do need to mind your head when you're in there 'cause you can - you, you can knock it if you're not careful."

33. I then pointed out to the witness that the communication was not directed to Mr Finniss. Indeed it was not even copied to him, and Mr Rankin agreed with that proposition. However, Mr Rankin went on to point out that Jono responded to humour, as did the Plaintiff.

34. It will come as no surprise to anybody who has been listening to what I have said or will in due course read what I have said that the direction given by Mr Rankin to Jono was not adhered to, and as at 25 October 2019, almost five months later, the toilet paper and paper towels were still being stored in the basement of block R. Jono did not do as he was instructed to do, nor did anyone pick up the fact that he had not done what he was directed to do. As I understand it, the actual moving of the store of toilet paper and paper towels happened after the Plaintiff's accident, probably in early 2020. Later, it was found that the store in L block was unsuitable because its doorway was to the outside world, and that things such as leaves and other material could be blown under the entrance to that storeroom. The store was then moved to E block.

35. The Plaintiff contends that I should accept the evidence of the Plaintiff or the effect of the Plaintiff's evidence that he complained to Mr Rankin about the height of the basement of block R, and that I should reject the evidence of Mr Rankin. It will not amuse anybody to know that the exact opposite submission was put on behalf of the Defendant, that I would accept the evidence of Mr Rankin and reject the evidence of the Plaintiff. The Plaintiff in cross-examination did accept that the question of dampness affecting the toilet paper and paper-towel was raised. However, he was adamant that, in addition, the question of height was also raised and, quite frankly, the "witticism" that Mr Rankin put in his email to Jono and Alan: "That will mean less bruises on heads!", points exactly in that direction.

36. Furthermore, I accept that both the Plaintiff and Mr Rankin were endeavouring to tell me the truth. What Mr Finniss remembers is perhaps different to what Mr Rankin remembers, but that can be explained probably by their own perception of the importance of the communication that was made. It is clear that the allegation that the toilet paper and paper towels were being exposed to moisture/dampness was made by the Plaintiff. He may have seen that as a more persuasive argument as far as Mr Rankin was concerned than the question of the height of the basement ceiling.

37. However, I accept that he raised it because his main concern was the height of the storeroom, which he was now visiting much more regularly than previously, and he probably found it somewhat of a nuisance to have to keep on ducking and watching his head. Equally, one could imagine the principal of a public school being alarmed when told that toilet paper for all the children and staff at the school was being exposed to moisture, and by the prospect of having his whole supply of toilet paper being damp-affected, and what children who were required to use it might say to their parents, and by the general uproar that that may cause in Avalon and areas around that suburb. In my view, as I found each of the two witnesses here involved credible, that is the likely explanation for the discrepancy, a difference of perspective between the Plaintiff and the principal.

38. I do not accept that there is any credit issue, such that I should reject the evidence of Mr Rankin or the evidence of the Plaintiff in regard to this issue. I should point out that in cross-examination the Plaintiff made it clear that the conversation with Mr Rankin included the height of the storeroom and the height of the basement access. For example, at T134.30 this question and answer are recorded:

"Q. See, what I want to suggest to you is that, with respect to Mr Rankin at least, [you] never complained to him, not in a complaining way and not in a way that would suggest you were unsatisfied with the way the work system was in the storage of toilet paper in under block R. You complained to Mr Rankin that the dampness of that room either was causing or had potential to cause damage to the materials that were being stored there, and that they should look for other options. Do you recall that?

A. That as well as the height."

B.

It was then put to the Plaintiff that at no time did he suggest to Mr Rankin that height was an issue, but the Plaintiff would not agree with that proposition. As I said, I accept that height was mentioned with Mr Rankin, and the Plaintiff's dissatisfaction working under the low ceiling or with low access was the subject of a complaint that he made to Mr Rankin.

Efforts to remedy the issue

39. The general assistant, Jono, did not immediately comply with Mr Rankin's directive of 5 June 2019. Mr Rankin spoke of Jono's work performance in an oblique way. In-chief, he was asked this question and gave this answer:

"Q. I noticed that in that note you indicated that, 'To avoid clogging the admin corridors these cleaners' deliveries should be cleared the day that they arrive.'

A. Yes. That, that was more - that was more an issue with Jono, the GA, who sometimes could be, shall we say, somewhat slow to move things and very reluctant to assist Craig [the Plaintiff] in moving supplies. He was very much of the opinion that Craig should move all these things or the cleaner should do that, when it fact it's the GA's job to do that. And I was - had to be very direct with him and say, 'You need to help the cleaning staff move them to the correct area.'."

B.

That response was diplomatic criticism of Jono. The Plaintiff was a bit more blunt. He described Jono as, "lazy".

40. As I mentioned, the Plaintiff's accident occurred on a Friday afternoon at either 4 or 5pm. At 8.09am on Thursday 31 October 2019, the Thursday after the accident, the Plaintiff sent an email which appears to have had a number of addressees. The email is contained in Exhibit EE. It commences thus:

"Hi guys[,]

Have tried to drop in but you're always busy.

Here's a brief:

Last Friday I was under R block getting toilet paper and did the stupid thing of slamming my head into the door [jamb] on the way out. Dizzy but okay. So I thought[.]

I've had a strange headache and neck pain since. I reported it to our work and also told Kylie the other day but wanted to have you guys up to speed[.]

Going to the doctors today to get an appraisal and will keep you posted...."

41. Mr Rankin replied at 8.16am on the same morning. After addressing the Plaintiff by his Christian name, Mr Rankin wrote this:

"Sorry to hear that, mate. If it was me, I'd say I missed my brain by three feet! [emoji]. Can you let us know what the doc says as we may need to file a WHS incident report. Look after yourself and enjoy the hard hat we'll buy you for Christmas.

Cheers,..."

42. Mr Rankin in evidence said that he overlooked, in the communication sent by the Plaintiff, the fact that he was under R block to obtain toilet paper. It appears that that did not trigger any immediate reaction on his part to make sure that the stock of toilet paper and paper towel was transferred to the storeroom in L block, as he had directed on 5 June 2019. However, it must be borne in mind that Mr Rankin gave the direction which he did on 5 June 2019, because he was concerned with the suggestion that the school's supply of toilet paper and paper towel might be affected by damp or moisture, not the fact that there was a risk that somebody might hit his or her head on a low ceiling or a low doorway. One would think that if the toilet paper had been affected by damp or moisture, that Jono would've found himself in some strife with Mr Rankin, that is, he may have found himself in "hot water".

The proceedings

43. This case is somewhat unusual. The case commenced on Wednesday 15 February 2023 with an opening by Mr Chrysostomou on behalf of the Plaintiff. The Plaintiff was sworn at 11.11am. He then proceeded to give evidence. That evidence was interrupted by the evidence of Dr Robert Payten, an ear, nose, and throat surgeon. He was excused at 3.49pm. He gave his evidence by audio visual link. The Plaintiff was then recalled and entered the witness box at 3.51pm. The Plaintiff's evidence in chief continued on 16 February 2023, and cross-examination commenced later that day. At the conclusion of Mr Finniss' evidence, his current life partner Ms Amanda Francis was called to give evidence and was cross-examined. That was the end of the oral evidence that the Plaintiff wished to adduce. Mr O'Dowd for the Defendant then called Mr Rankin to give evidence. He also gave evidence by audio visual link because he was preparing himself to leave Australia to attend upon a sick relative overseas. Mr Rankin was excused at 3.46pm. I then admitted certain documentary evidence.

44. The matter was then adjourned to Friday 17 February 2023. Addresses took all of that day, and all of the following Monday, and continued for a third day until 12.30pm 20 February 2023. I commenced giving judgment at 2:00pm that day. The point of that dissertation is that the addresses took longer than the evidence, which is unusual.

45. A major point of debate was the nature and extent of the Defendant's duty of care. Before I come to that, however, I should make these remarks. One can call them findings if one wishes to, but they are remarks or findings of what is clear and not in dispute. That the doorway was low should be clear from its dimensions which I discussed and is patently clear from the first photograph in Exhibit LL which shows Mr Rankin standing outside the door to the basement of R block. Indeed, Mr Rankin's clavicle should be seen as being above the bottom level of the lintel of the doorway. It is clear that Mr Finniss was at least a foot or 12 inches taller than the top of the door, and the lintel may be a bit lower than the level that I have already announced.

46. However, that the door was low would have been obvious to any adult who was required to use the door. Equally, the last thing anyone did as a general proposition before leaving the basement was to turn off the light. The only thing that the Plaintiff did in addition to turning off the light was again picking up with his left hand one of the packages of toilet paper. However, it is clear that once the lighting within the basement was turned off, and provided it was daylight outside, which it would have been on the afternoon of the 25 October 2019, the height of the doorway was obvious.

47. On the afternoon of the Friday 25 October 2019 at either 4pm or 5pm, there would have been daylight outside. When one looks at the photograph 5 in Exhibit G, one can clearly discern the extent of the doorway. That is, one can see both the door jambs and the lintel.

48. The same can be seen in the second photograph in Exhibit LL which again shows the door jambs and the lintel and clear light outside. The height of the doorway was obvious to anybody using it either as a means of ingress to the basement, or as a means of egress from the basement, and would have been well known to the Plaintiff on the day of the accident, based on my calculation of his previous use of it on at least 64 occasions.

Nature of the Defendant’s duty of care

49. I turn then to the question of what was the nature of the Defendant's duty of care. The Statement of Claim makes these allegations:

"5. The defendant, as owner and occupier of Avalon PS, owed the persons, such as the plaintiff, a duty to take such care as was reasonable in the circumstances.

6. Further, or in the alternative, the defendant owed the plaintiff a duty of care to take reasonable care to ensure reasonable care was taken for the safety of the plaintiff by providing proper and adequate means of work without creating unnecessary risk.

7. The risk that a person could hit their [sic] head on a low and unprotected door frame in the storage facility and become injured was a risk of harm.

8. The risk of harm was foreseeable by the defendant.

9. The risk of harm was not insignificant.

10. A reasonable person in the defendant's position would have taken precautions against the risk of harm."

50. The pleading then contains particulars of precautions which it is alleged the Defendant should have taken. One of those particulars was deleted on 17 February 2023. Particular (d) "Warning persons of the door frame" was withdrawn by counsel for the Plaintiff during submissions. I need not, at this stage, refer to that.

51. It is important to note that the Plaintiff was not employed by the Defendant, and the Defendant did not owe him the duty of care owed by an employer. Conveniently, that duty is discussed in Glass, McHugh, Douglas, The Liability of Employers in Damages for Personal Injury (2^nd edition, Law Book Company, 1979) at p 2, where the learned authors say this:

"The duty has been consistently formulated as a duty to take reasonable care for the safety for the employee in all the circumstances of the case. This is the single overriding duty to be applied in the infinitely variable and complex facts of industrial life. It is customary to speak of this proposition as having its threefold subdivision relating to premises, plant, and system. This does not, however, involve the notion of three distinct duties, but the same duty arising for performance in three distinct employment situations. Nor does the threefold subdivision limit the scope of the duty. Indeed the field in which the employer's duty of care operates cannot be limited in advance as it applies to all the circumstances of the employment. It also applies to all risks of injury which reasonable foresight would discern and reasonable prudence would obviate."

The tripartite division of that duty of care is well known. The employer is under a duty to provide a safe place in which an employee carries out his work. The employer has a duty to provide an employee with safe plant and equipment, and the employer has a duty to devise and maintain a safe system in which the employee performs his work.

52. The duty of the employer extends to guarding against momentary inadvertence or inattention of the worker. At p 223, the learned authors say this:

"If the setting in which the plaintiff is acting causes some temporary lapse in attention or the press of affairs produces a need for prompt action, these factors are always relevant to a decision whether the plaintiff has been inadvertent only or guilty or blameworthy want of care."

The authority for that proposition is, of course, Sungravure Pty Ltd v Meani (1964) 110 CLR 24 per Windeyer J at p 37.

53. Were the Plaintiff an employee one could argue that the Defendant required the plaintiff to work, inter alia, in the basement of R block. It caused him to enter there to obtain material which he needed to use in his work. He had to distribute both the toilet rolls and the paper towels to various lavatories in that part of the school which he cleaned. Although the risk of hitting one's head might appear to be obvious, the employer has to allow for momentary inadvertence or inattention, and perhaps even for misjudgement, and therefore should have tried to remedy the problem, for example, by making some allowance or try to obviate the risk of injury.

54. Furthermore, if the Defendant were the employer, it could be argued that Jono, an employee of the Defendant, was negligent, and the employer is liable for his negligence because he failed to carry out a task assigned to him by the principal, and the principal himself failed to follow up to make sure that Jono did his job. Amongst other things, an employer is liable for the acts, neglect, and default, of other employees of an injured worker.

55. Furthermore, at the current time, the provisions of the Civil Liability Act 2002 (“CLA”) do not apply to an award of work injury damages, that is, an award governed by Pt 5 Div 3 of the Workers Compensation Act 1987. That is because of s 3B(1)(f) of the CLA.

56. I have been referred to a large number of authorities. One of them is Stevens v Brodribb Sawmilling Co. Pty Ltd (1986) 160 CLR 16; [1986] HCA 1. The headnote is this:

"A sawmiller engaged sniggers to move felled trees to a loading zone and truckers to carry the trees to the mill. Sniggers and truckers used their own vehicles, set their own hours of work, and were paid according to the volume of timber delivered to the mill. The sawmiller did not deduct income tax instalments from the payments. Sniggers and truckers were not guaranteed work and were free to seek other work if weather or other circumstances prevented them working for the sawmiller. An employee of the sawmiller had general supervision over operations, but exercised no control over the manner in which sniggers and truckers carried out their tasks. While a log was being manoeuvred onto a truck, a trucker was injured by the negligence of a snigger."

57. The Court held that neither the trucker nor the snigger was an employee of the sawmiller, so that the sawmiller was not vicariously liable for the snigger's negligence nor liable for a breach of duty of care owed by an employer to an employee. At page 47, Brennan J (as his Honour then was) said this;

"Brodribb organized the felling, snigging, loading and trucking operations which brought the forest logs to the mill. All of those operations involve some risk of injury to those engaged in them. We are concerned with the loading operation. The movement of bulldozers as they manoeuvre heavy logs on loading ramps involves some risk of injury to those engaged in the loading operations. An entrepreneur who organizes an activity involving a risk of injury to those engaged in it is under a duty to use reasonable care in organizing the activity to avoid or minimize that risk, and that duty is imposed whether or not the entrepreneur is under a further duty of care to servants employed by him to carry out that activity. The entrepreneur's duty arises simply because he is creating the risk (Sutherland Shire Council v. Heyman) and his duty is more limited than the duty owed by an employer to an employee. The duty to use reasonable care in organizing an activity does not import a duty to avoid any risk of injury; it imports a duty to use reasonable care to avoid unnecessary risks of injury and to minimize other risks of injury. It does not import a duty to retain control of working systems if it is reasonable to engage the services of independent contractors who are competent themselves to control their system of work without supervision by the entrepreneur. The circumstances may make it necessary for the entrepreneur to retain and exercise a supervisory power or to prescribe the respective areas of responsibility of independent contractors if confusion about those areas involves a risk of injury. But once the activity has been organized and its operation is in the hands of independent contractors, liability for negligence by them within the area of their responsibility is not borne vicariously by the entrepreneur. If there is no failure to take reasonable care in the employment of independent contractors competent to control their own systems of work, or in not retaining a supervisory power or in leaving undefined the contractors' respective areas of responsibility, the entrepreneur is not liable for damage caused merely by a negligent failure of an independent contractor to adopt or follow a safe system of work either within his area of responsibility or in an area of shared responsibility.”

58. The occupier of a premises is not required to guard against every risk. Instructive on that issue is Wilkinson v Law Courts Limited [2001] NSWCA 196. On 30 May 1995, a plaintiff fell down steps outside the Law Courts Building in Queens Square, Sydney. He was then 34 years old. He was a finance representative. In his spare time, he played basketball and had attained considerable success in that game. He was in training for a final year in the NSW State League. He was very fit. He did not wear spectacles. There was nothing wrong with his sight. On the morning of 30 May 1995, the Plaintiff had attended the Federal Court. He left the Law Courts Building by the doors leading onto Phillip Street. That activity is no longer available because of the reconfiguration of the doorways. From the Phillip Street entrance to the Law Courts Building there is a set of stairs descending to the footpath on Phillip Street. The Plaintiff began to descend the steps. On the third step he tripped and fell to the bottom of the steps. In cross-examination he described the action as one in where the front of his right foot caught the edge of a step. As he fell, he said that he tried to regain his balance, but there was no railing which he could grasp in order to do so. After the fall he felt immediate severe pain in his right ankle. The Plaintiff lost in this Court and was unsuccessful in the Court of Appeal.

59. The judgment of the Court of Appeal was given by Heydon JA (as his Honour then was) with whom RP Meagher JA and Rolfe AJA agreed. After the Plaintiff's fall there had been changes made to the stairs outside the Law Courts Building. However, those changes were made not because of what occurred to the Plaintiff. The changes are set out in par [6] of the judgment:

“6 The plaintiff’s case before the trial judge was that the width of the treads was excessive, a handrail was not provided, and the stairs were a dirty grey colour with no distinguishing marks. The trial judge said (Red 24R-25H):

‘Since the accident a white, slip resistant, nosing strip has been fixed to the steps, giving a highly visible contrast to each step, and a number of handrails have been installed. Those changes were made, not in any reaction to the subject accident, but as a result of an access audit of the court building, which was conducted in response to the Commonwealth Disability Strategy.

Nevertheless, it could well be said that the stairs are now safer than they were at the time of the accident, and that the changes in fact made were reasonably available to the defendant, in that they did not involve any unreasonable expense. It does not necessarily follow that the defendant is therefore liable to this plaintiff. The steps may well have needed those changes in order to make them reasonably safe for people with defective sight or agility. But this plaintiff was a young man who aspired to representative basketball. The duty, a breach of which must be shown, was owed to him personally. What must be shown is that the defendant, in May 1995, was failing to take reasonable care for his safety.’”

60. His Honour went on to say this:

“21 The proposition that the failure to have a handrail at or near the place of the accident was a breach of duty encounters the difficulty that the steps run a considerable distance from north to south and turn a corner to run a further distance from west to east. Members of this Court, obviously, have observed the steps and the way they are used thousands of times. Pedestrians go up and down the steps at numerous points along their length and at a great variety of angles. The defendant was sued as the occupier of premises. An occupier of premises is only required to take such care as is reasonable in the circumstances. The duty is not to make the premises as safe as “reasonable care and skill on the part of anyone can make them”, as Gleeson CJ, speaking of landlords as a sub-class of occupiers, said in Jones v Bartlett (2000) 75 ALJR 1; 176 ALR 137 at [92]. If safety was to be assured by procuring that every user of the steps had a handrail within reach, a handrail would be needed at many points along the considerable length of the steps. An extensive system of railings would be expensive. It would be ugly, which is not irrelevant: Phillis v Daly (1988) 15 NSWLR 65 at 68F-G; Jones v Bartlett (2000) 75 ALJR 1; 176 ALR 137 at [23]. The plaintiff points out that people using the steps may be seriously disabled. It may also be pointed out that many users of the steps are carrying bags or folders, or are manoeuvring trolleys. Any system of handrails would have to accommodate their needs. It would also interfere with many customary uses of the steps. The particulars to paragraph 7 of the Statement of Claim did not say precisely where railings should have been erected. Nor did Dr Emerson. Nor, indeed, did the plaintiff in his written submissions. The plaintiff’s evidence implicitly suggested that they should have been erected where they are now, but did not say why they should be there rather than anywhere else.

22 The steps were obvious in appearance, their edges were clear, there were not many of them, and dimensions and variations in the step sizes have not been shown to create any danger or create any inadequacy in them if they were properly used. In Stannus v Graham (1994) Aust Torts Reports 81-293 at 61,566, Handley JA pointed out that there are “extensive steps outside public buildings in Sydney such as the Joint Courts Building, the Public Library, the Art Gallery, Parliament House and the Opera House. A handrail is not to be found within reach of every person using these steps.” There is specific evidentiary support in this case for that proposition from Mr Beckett so far as the absence of handrails at the concourse leading to the Opera House is concerned, and from Dr Emerson so far as the Opera House, Martin Place and the MLC Centre is concerned: Black 48S-W.”

Later his Honour went on to say this:

“32 In my opinion the trial judge’s reasoning is wholly convincing. Stairs are inherently, but obviously, dangerous. Many measures might have been taken to make the stairs as safe as human skill could possibly make them; but the duty is only to take care which is reasonable under the circumstances. Among the essential circumstances is the following fact: “persons using steps may misjudge their footing and slip or trip but this is an everyday risk which members of the public avoid by taking care for their own safety”: Stannus v Graham (1994) Aust Torts Reports 81-297 at 61,566 per Handley JA. There are many places in Sydney where the steps do not have strips on the edges: the Public Library, the Art Gallery, Parliament House, St James Church and St Mary’s Cathedral: Black 51J-R.

33 The criticisms made by the plaintiff in relation to the danger of falling on the steps naturally focus on what in fact happened to the plaintiff. But if the degree of attention to safety which the plaintiff submitted to be appropriate was in fact appropriate, much more would have been necessary to deal with the risk of injury happening in other ways (see generally Jones v Bartlett (2000) 75 ALJR 1; 176 ALR 137 at [19]; Taber v NSW Land and Housing Corporation [2001] NSWCA 182 at [60]). Dr Emerson complained of the dimensions of the steps, the lack of marking and the absence of handrails (presumably one on each side of a user of the steps would be called for ideally). He also referred to the absence of a “simple warning sign”, which he said, “would have provided sufficient stimulus to the Plaintiff to be aware of the hazard of the non-standard steps” (Blue 12B). But the steps are used by many persons who speak English badly, so the warnings would have to be in more than one language. Perhaps there should be other warnings about the danger of descending steps in wet weather, the general need for care in using steps, the need to look out for persons manoeuvring trolleys or wheelchairs or television cameras, and so on. The more the warnings, the less the effectiveness of each. The human imagination can conjure up many circumstances in which a user of the steps might suffer injury. A particular measure directed to the avoidance of a particular type of injury might in itself be relatively inexpensive and relatively easy to implement. But if measures are to be taken to reduce all the dangers which can be imagined, very heavy burdens would be imposed: yet the form of injury from which the plaintiff suffered does not appear any more likely than most of the other imaginable forms of injury. This highlights the difficulty which confronted the plaintiff in isolating the three matters on which he relied to establish a breach of duty.”

61. In Bostik Australia Pty Ltd v Liddiard & Anor [2009] NSWCA 167 the Court of Appeal had to consider a claim by a Plaintiff who worked for one company who was injured whilst doing work for another. Mr Liddiard was injured on premises owned and occupied by Bostik Australia Pty Ltd. Bostik carried on a packaging business in a factory on the site. Liddiard was employed by Brolton Industries Pty Ltd which operated an engineering business in another part of the factory premises where Bostik carried on its packaging business. Brolton supplied labour to Bostik and used Bostik's equipment as and when it needed it. There was no written agreement between Bostik and Brolton in respect of these arrangements, and Liddiard was unaware of any such arrangements. At the time of his accident, Liddiard's services were being provided to Bostik by Brolton.

62. Employees of both Bostik and Brolton used a small open shed on the site during meal and other work breaks. A number of 44 gallon drums were placed in the shed for use as rubbish bins. The rubbish bins were changed twice a week and were emptied into an industrial skip bin at the rear of the site. Liddiard was injured when he lifted one of the rubbish bins. He had been carrying out this task approximately twice a week over the previous six to eight months and had not previously encountered a rubbish bin of any substantial weight. Liddiard never received any instruction regarding how to perform that task or any associated or allied task. Liddiard sued both his employer Brolton and the occupier Bostik, claiming that each had breached a duty of care owed to him. In this Court both companies were held to be liable in negligence, which was apportioned 40% to Brolton and 60% to Bostik. Bostik appealed against that finding.

63. The appeal was allowed and the judgment against Bostik was set aside, and judgment was entered for Bostik. Beazley JA (as her Excellency then was) said this:

“89 In my opinion, the following matters are relevant to the question whether Bostik owed Mr Liddiard a duty of care. First, Mr Liddiard, although employed by Brolton, was undertaking work as a general hand for Bostik. Bostik paid Brolton for those services. In that sense, the arrangement was akin to the labour hire cases exemplified in Christie, although this case was different in that his employer had a presence on the premises. Bostik was the principal occupier of the premises and had the overall control of the activities that were engaged in on the premises. It required the premises to be maintained and kept clean. That work included rubbish removal from the smoko shed. Bostik was aware of the method of rubbish removal from the smoko shed. It permitted its forklifts to be used for that purpose. It was also aware of, and permitted, its empty 44 gallon drums to be used as rubbish receptacles for the smoko shed. Mr Pearce accepted that it was part of his responsibilities as Bostik’s site manager to ensure that proper safety measures were in place, including in relation to the removal of rubbish bins from the smoko shed.

90 Mr Liddiard, for his part, was not in a position to organise his own method of work. He was subject to direction, although it is reasonable to infer that he would have expected that direction to have come from Brolton. However, that is not determinative of the question whether Bostik had a duty of care. He did not provide his own equipment. He had no control over any aspect of the workplace.

91 In my opinion, Bostik owed Mr Liddiard a duty of care that was akin to the duty owed to an employee.”

64. However, her Honour was in dissent. Separate decisions were given by Ipp JA and Basten JA in discussing the duty of care owed by the occupier Bostik. Basten JA said this:

“133 In finding that both the employer and the appellant owed the plaintiff a duty of care, the trial judge stated at [79]:

“The relationship between each of the defendants … was in the nature of a joint venture in relation to the plaintiff’s work in emptying the rubbish bins at the smoko shed.”

134 His Honour approached the matter, in accordance with submissions made to him, by considering whether the facts of the case provided a closer analogy with the decision of this Court in J Blackwood & Son Steel & Metals Pty Ltd v Nichols [2007] NSWCA 157, or the decision of the High Court in Thompson v Woolworths (Qld) Pty Ltd [2005] HCA 19; 221 CLR 234. His Honour held that the circumstances of Thompson were “analogous to the present situation” and that, accordingly, both defendants owed the plaintiff a relevant duty of care to take reasonable steps for his safety: at [78]-[80].

135 In determining a question of law, namely the existence of a duty of care, the content, which is often the critical component, must be identified by reference to the circumstances in which the injury occurred: see Sutherland Shire Council v Heyman [1985] HCA 41; 157 CLR 424 at 487 (Brennan J) and Cole v South Tweed Heads Rugby League Football Club Ltd [2004] HCA 29; 217 CLR 469 at [1] (Gleeson CJ). Thus, the High Court once rejected, as without rational foundation, the contentions that a worker at a bush camp, required to cut timber for a stove, should have been provided with some implement other than a tomahawk or should have been given instruction as to how to use the tomahawk: Electric Power Transmission Pty Ltd v Cuiuli [1961] HCA 3; 104 CLR 177. A similar conclusion was reached by this Court in relation to the use of a ladder in Van Der Sluice v Display Craft Pty Ltd [2002] NSWCA 204 at [74] (Heydon JA, Meagher JA and Foster AJA agreeing) and the securing of a load on a truck in J Blackwood & Son at [61] and [64] (Tobias JA, Mason P and Handley AJA agreeing).

136 In the present case, the 44-gallon drums used as rubbish bins were required to be physically manhandled from the smoko shed and on to the tines of a forklift. The plaintiff had undertaken this task approximately twice each week for some six months before the injury. He gave evidence that the bins were usually not heavy. On this occasion, the bin was unusually heavy.

137 Because the employer did not appeal from the judgment against it, its responsibility to take steps to avoid the need for manual handling of an unexpectedly heavy bin is not in issue. On the other hand, findings made against it, or not contested by it, do not operate against the appellant.

138 The plaintiff was not employed by the appellant and, on the accepted evidence of the plaintiff himself, received no instruction or direction from the appellant’s manager.

139 The fact that an employer may be obliged to take reasonable steps to provide a worker with a safe system of work, does not preclude the existence of a duty owed by others to take reasonable care in their dealings with the worker, whether they be other employees, independent contractors, the occupier of premises which the worker is required to attend in the course of employment or other road users encountered in the course of travel. Where work is undertaken on the premises of a third party, that party may have a duty, which commonly arises from:

(a) the degree of control or direction exercised or which the third party is entitled to exercise over the worker;
(b) the condition of plant or premises under the control of the third party, or
(c) the activities of others on the site, generally for the purposes of the third party’s undertaking or business.

140 The third situation may be put to one side for present purposes. The facts fall within a combination of the first and second elements. Thus, the system for clearing rubbish involved the use of the 44-gallon drums, which were provided by the appellant and the use of a forklift which did not fit under the roof of the smoko shed, which was also provided by the appellant. On the other hand, it is clear that the appellant did not seek to control the activities the plaintiff, nor direct him as to how to perform those activities.

141 The circumstances in which an employer provides labour to a third party, commonly described as “labour hire” arrangements, are not new. McDonald v The Commonwealth (1946) 46 SR(NSW) 129, concerned whether vicarious liability for an accident caused by a negligent worker lay with his legal employer (referred to as the “general employer”) or “the particular employer”, being the party for whom the employee was working and which had control over the employee at the time of the accident. In such a case, the passing of control from one party to another may be treated as in practical terms complete, so as to render the latter the employer pro hac vice (for the occasion only), in the language of Lords Macmillan and Simonds in Mersey Docks and Harbour Board v Coggins& Griffith(Liverpool) Ltd [1947] AC 1 at 13 and 18. In Oceanic Crest Shipping Co v Pilbara Harbour Services Pty Ltd [1986] HCA 34; 160 CLR 626 at 668, Brennan J stated:

“The rule to be derived from Mersey Docks and McDonald is not that two persons cannot be vicariously liable for the same damage or that an employee cannot be the servant of two masters, but that two employers of the same servant who negligently causes damage will not both be liable for the damage if one rather than the other has what Jordan C.J. called ‘the relevant control’: McDonald , [at 132].”

142 No doubt caution must be taken in applying principles stated in cases where the vicarious liability of a principal or employer is in question to a case where responsibility for an injury suffered by an employee is in issue. However, the duty of the principal to an employee of an independent contractor has been upheld in cases such as Stevens v Brodribb Sawmilling Company Pty Ltd [1986] HCA 1; 160 CLR 16, where Mason J stated at 31:

“Although the obligation to provide a safe system of work has been regarded as one attaching to an employer, there is no reason why it should be so confined. If an entrepreneur engages independent contractors to do work which might as readily be done by employees in circumstances where there is a risk to them of injury arising from the nature of the work and where there is a need for him to give directions as to when and where the work is to be done and to co-ordinate the various activities, he has an obligation to prescribe a safe system of work. The fact that they are not employees, or that he does not retain a right to control them in the manner in which they carry out their work, should not affect the existence of an obligation to prescribe a safe system.”

143 In TNT Australia Pty Ltd v Christie [2003] NSWCA 47; 65 NSWLR 1, in relation to the plaintiff, whose labour was provided to TNT by his employer, Mason P stated at [41]:

“TNT exercised day-to-day control over the plaintiff’s work activities, treating him to all intents the same as its employees as regards work on the factory floor. … It can be seen that the plaintiff and TNT placed themselves in a relationship, day in and day out, indistinguishable from that of employee and employer. … [H]ere the plaintiff had for months been under the daily control of TNT and its managerial staff at the brewery. He was a relatively unskilled labourer. He reported daily to the brewery and everything that he did there was done under the full control of TNT.”

144 Thus, in labour hire cases involving unskilled workers, there may well be a transfer of control to the business in which they are working. It appears that this was the case in respect of employees of Brolton who were provided to work for the appellant on its production lines. However, different practices appear to have arisen with respect to non-production line labour.

145 As had occurred before the trial judge, the parties in this Court sought to rely upon or distinguish particular factual circumstances drawn from cases supportive of their claims. However, the relevant comparison is not to be made between J Blackwood & Son (which concerned the need for instruction, not the person responsible for giving it) and Christie (which concerned the person on whom lay the responsibility for providing safe equipment). Nevertheless, it is clear that the situation of the appellant, with respect to control of the plaintiff, was far removed from that described in Christie .

146 Whether or not the appellant owed a duty of care to the plaintiff must depend to a significant extent upon the relationship between the appellant and Brolton. That appears to have been largely informal at the relevant time. As Mr Lynch explained in evidence, he had originally worked for Dow Corning, the business of which was taken over by the appellant, at which time he ceased working for Dow Corning and set up his own maintenance engineering business. He did work for the appellant and obtained a lease or licence of part of the premises occupied by the appellant. He supplied maintenance services and also labour to the appellant. Brolton was paid for those services but not, it would appear, pursuant to any written agreement. Mr Lynch gave the following evidence at Tcpt, 16/04/08, p 181:

“Q. The smoko shed was used not only by Bostik and direct employees, but also by Brolton employees, is that right?
A. And others, yes.

Q. And not only Brolton employees who were working for Bostik, but Brolton employees who were working directly for Brolton?
A. Yes.

Q. And I think you gave evidence this morning that Brolton Industries used the forklifts owned by Bostik on Brolton’s own premises, is that right?
A. Correct.

Q. Including, if you needed to, to lift piece[s] of equipment that Brolton was working on for customers other than Bostik?
A. Yes.

Q. And to move other items around on Brolton’s own premises, is that right?
A. Yes.

Q. And there was no formal arrangement where you [paid] some sort of fee to do that, was there?
A. No.

Q. And if you wanted a forklift to do something for Brolton’s own business, you just went and got one if it was available, is that right?
A. Correct.

Q. And similarly, Brolton used drums which were surplus or left over from Bostik’s production line as rubbish bins on its own premises --
A. Yes.

Q. -- is that right, for its own rubbish?
A. Yes.

Q. And there was no charge for that, was there?
A. No.

Q. And the understanding or arrangement between Brolton and Bostik was both drums like that and forklifts like that could be used by Brolton for its own business activities if needed?
A. Yes.

Q. And that was the position from 2000 right through until you stopped providing services to Bostik 18 months or two years ago?
A. Correct.”

147 The other party to the arrangement was the appellant. As appears from the evidence of Mr Pearce, the site manager for the appellant, set out above by Beazley JA, an inference was available that the appellant had accepted responsibility for a safe system of work with respect to non-production employees provided by Brolton: Tcpt, pp 206-207. However, in his evidence in chief, Mr Pearce also stated that he did not look after the training of Brolton employees, nor did he personally provide any training, but relied upon a “buddy system” for training people: Tcpt, p 193. He was asked if Mr Liddiard was “given over to tasks at the request of Bostik”, language which he denied applied to Mr Liddiard but agreed might apply to persons working in the production area: Tcpt, pp 196(15) and 199(40). The following exchange occurred (p 208(5):

“Q. And to a lesser extent was it your observation that for non production employees there would from time to time be supervision or instruction given in relation to how those tasks were carried out?
A. Not normally, no.

Q. Sometimes?
A. No.

Q. Why not normally, if it’s not sometimes?
A. Okay. It wouldn’t be – I didn’t see evidence of that.

Q. It would be consistent with your understanding of the arrangement between Bostick [sic] and Brolton that an employee was on Bostick’s premises and not cleaning up properly or driving a forklift in a dangerous manner it would be consistent with your understanding of that arrangement that a supervisor or official from Bostick may well instruct or otherwise prohibit a Brolton employee from continuing in that behaviour?
A. If it was somebody driving a forklift quickly, yes, but if it wasn’t say of not cleaning a part properly or not cleaning up properly, no that wouldn’t be the case.

Q. Well why would there be a difference?
A. If a part wasn’t cleaning or if an area wasn’t cleaned up properly someone would tell me and we’d go to Ben to say that – or Ben needs to say that this person isn’t doing – they’re not cleaning a part properly or they’re not cleaning up properly, can you attend to that please.”

148 The reference to “Ben” was a reference to Mr Lynch, Brolton’s manager. Further, at p 211(15) the following exchange occurred:

“Q. How did you go about addressing that perceived responsibility in your position as site manager for Bostik?
A. For emptying of the bins around the smoko shed?

Q. Yes.
A. I just left it up to Ben Lynch to – because he was looking after the outside of the gardens I left it up to him to be able to – you know basically get the workers to empty them.”

149 Taken as whole, Mr Pearce’s explanation is consistent with that given by Mr Lynch and the understanding of the plaintiff, namely that Brolton had contracted with the appellant to provide services in the outside areas, which included emptying the rubbish bins in the smoko shed, and that Brolton was responsible for the manner in which such work was to be performed. Although the bins and the forklifts may have been the property of the appellant, part of the arrangement was that Brolton could make use of such equipment as it required to carry out the functions for which it was responsible. This was not a case in which any co-ordination of contractors was required, nor was there any other reason for the appellant to devise a safe system of work for the plaintiff. To the extent that the appellant controlled activities on the premises, there was no danger or risk to the plaintiff relevant to the injury suffered, arising from the state of the premises or the activities which took place on them. It was no doubt true that steps could have been taken which would have lessened or removed the risk associated with manual handling of the waste bins. Nevertheless, neither the legal arrangement nor the practical circumstances in which the work was undertaken imposed an obligation on the appellant with respect to such steps. In my view the appellant did not owe a duty of care to the plaintiff.”

65. Clearly, in the current case, this is not merely a question of labour hire where, effectively, the injured employee was working for the occupier, his services having been lent on hire by his nominal employer who carried out no relevant task other than providing him to a guest employer and paying his wages.

66. Applying the approach of Beazley JA, one might be tempted to argue that, at least as far as the basement of block R was concerned, the Defendant owed the Plaintiff a duty "akin" to the duty of an employer to provide a safe place of work. The problem with that argument is that it does not deal with the provisions of the CLA which apply to the Plaintiff's case. The argument propounded by the Plaintiff is essentially this: a decision had been made by Mr Rankin that the toilet paper supplies, and paper towel supplies, be moved from the basement of block R to the storeroom in block L. That ought to have been attended to promptly, and had it been attended to promptly, that is, within the nearly five months between the decision and the Plaintiff's accident, the Plaintiff would not have entered the basement of block R on 25 October 2019, and the accident here in question would not have occurred.

67. The Plaintiff argues that s 5G of the CLA is not relevant to the Plaintiff's case. The Plaintiff argues that s 5G does not apply to the Plaintiff because the Plaintiff has withdrawn the allegation of a failure to warn. That means that s 5H is inapplicable, and therefore s 5G is inapplicable. The Plaintiff also argues that s 5G is only relevant where a defendant raises a defence of volenti non fit injuria. That is referred to in Mr Villa's work on the Civil Liability Act (3^rd edition) p 189 [1A. 5G. 020] for which the author cites the judgment of Santow J in CG Maloney Pty Ltd v Hutton Potts [2006] NSWCA 136.

68. CLA Part 1A Division 4 has a title, "Assumption of risk". Mr Villa commences his discussion of this division by pointing out that at common law, volenti non fit injuria operates as a defence to both intentional torts and to negligence.

69. There are a number of qualifications to that principle. The Latin maxim is of some antiquity. In the tenth edition of Broom's Legal Maxims (1939), the author commences his discussion of this maxim with this:

"In actions founded on tort, the leave and licence of the plaintiff to do the act complained of usually constitutes a good defence by reason of the maxim volenti non fit injuria; and, as a rule, a man must bear loss arising from acts to which he assented."

The work then goes on to discuss the application of the principle in matrimonial causes, and in crime. The author then says this:

"It has, indeed, been said that even in an action for an assault, it is no defence to allege that the parties fought by consent, if the fight was unlawful; but it does not follow that either of the consenting parties to an unlawful fight can recover damages; for, even if their consent, being illegal, be a nullity, it may well be that the action will be dismissed by reason of the maxim ex turpi causa non oritur action."

The next paragraph of the work continues with this, providing some very old case law:

"The maxim volenti non fit injuria has often been cited, and sometimes applied in favour of defendants sued for damages for personal injuries; for instance it was so applied against a man who was hurt by a spring-gun while he trespassed in a wood after being warned by the owner that in it there were spring-guns set in a manner which was not then illegal; and it seems that, as a rule, the application of the maxim is justifiable if the plaintiff received his injuries under circumstances leading necessarily to the inference that he encountered the risk of them freely and voluntarily and with full knowledge of the nature and extent of the risk: in other words, if the real cause of the plaintiff running the risk and receiving injuries was his own rash act. Whether the maxim ought to be applied in a particular case is often a question rather of fact than law."

70. It is not suggested in the current case that the Plaintiff voluntarily assumed the risk of injury. The injury was accidental, not intentional. It is not necessary to consider the principle volenti non fit injuria. The relevant provisions of the CLA are ss 5F, 5G, 5H, and 5I. It is important to note that s 5G does not contain any preface or chapeaux saying that it applies for the purpose of s 5H. It is a stand alone provision. In the risk of harm, the risk that one might strike one's head on the lintel of the low doorway was obvious to anybody either seeking to enter or seeking to leave the basement of block R. The fact that he was not aware of the exact type or extent of an injury which might befall him is irrelevant under s 5G(2). Furthermore, it is clear from s 5F that whether the risk of injury was obvious is to be determined on an objective rather than a subjective basis. Here, objectively, anybody could ascertain that there was a risk of hitting the top of one's head if one stood up prematurely when trying to leave the basement of block R.

71. The problem with the argument advanced on behalf of the Plaintiff is that it requires me to ignore ss 5F and 5G of the CLA when it does apply to the current case. The Plaintiff brings an action for damages not against his employer, but against the Crown in right of the Department of Education for the liability for the premises which it occupied and is known as the Avalon Public School. As I said, even if I approach the matter as Beazley JA did in Bostik Australia Pty Ltd v Liddiard and found that the Defendant owed the Plaintiff a duty akin to the duty of the employer to provide a safe place in which to work, that does not exclude the operation of the CLA.

110. It appears that at the beginning of the year 2020, probably the beginning of the school year, the Plaintiff returned to his normal duties. On 3 February 2020, Dr Kalajdzic noted a relapse after trying pre-injury duties. She noted a complaint of headache and neck pain, and that the tinnitus was worse. She suggested the Plaintiff work morning shifts only and avoid vacuuming and heavy lifting. She issued a certificate to that effect. On 17 March 2020, Dr Kalajdzic's notes recorded that the Plaintiff was keen to return to a trial of work without any restrictions. However, there were messages being received by Dr Kalajdzic from it would appear the insurer of his employer. On 31 March 2020, Dr Kalajdzic had a telephone discussion with both the Plaintiff and a rehabilitation consultant. The notes she made at the time are these:

"Coping well at work, but not realy preinjury duties as work load much less due to corona virus epidemic

Craig feels tinnitus feels worse."

112. There was a further phone consultation on 4 May 2020 where Dr Kalajdzic noted this:

"Working 'pre-injury duties' but only 30 students back at school."

It would, I expect, be fairly easy to clean a school which only had 30 students if there were three cleaners.

113. There was a further Telehealth consultation on 7 August 2020. That was to review his worker's compensation claim. The doctor's notes continued thus:

"ongoing neck pain and worsening tinnitus

driving him mad

managing to work normal hours normal duties

but needs ongoing [treatment] : awaiting bone scan to localise most symptomatic joint C3-C5".

She also noted that an audiology report suggested that the Plaintiff needed hearing aids.

114. On 7 September 2020, Dr Kalajdzic noted that the Plaintiff was extremely frustrated, and that appears to have been his reaction to the requirements of the insurer of his employer. Not an unusual event at all. There was a further discussion with Dr Kalajdzic at an actual consultation on 6 October 2020. Again, the doctor noted that the Plaintiff's tinnitus was "driving him crazy." The doctor noted the Plaintiff was struggling emotionally and that he was "feeling down." Nevertheless, his neck was better, and the Plaintiff did not believe he needed any further physiotherapy after the remaining few sessions had been kept.

115. On 23 December 2020, Dr Kalajdzic noted that the Plaintiff was "going mad with tinnitus" and that led to the referral to the psychologist. I have gone back to look at those notes because the reference to the Plaintiff’s being driven mad and the tinnitus driving him crazy, and he was going mad with the tinnitus are all apt, but do not necessarily mean the Plaintiff that was psychiatrically disturbed, but rather that the constant ringing in his ears, which he described to me as the noise of a big cicada or the noise of cicadas was having that practical impact on him.

116. When first seen by Ms Sieradzki on 27 January 2020, the Plaintiff was given a depression, anxiety, and stress scale test. The Plaintiff scored within the severe range against the stress criteria, with moderate range against the depression criteria, and within normal range against the anxiety criteria. Clearly, he was not anxious, but he was suffering from some depression and whatever "stress" is meant by Ms Sieradzki.

117. On 31 May 2021, the Plaintiff was seen by Dr Anthony Dinnen a consultant psychiatrist at the request of his solicitors. Dr Dinnen's report says this about the plaintiff's attitude to his work:

"He is most apprehensive about his ability to keep working. The School is very supportive towards him and accepts that he can work sporadically when he is able to do so. It is only ten minutes away from his home, so he can work irregular hours in order to fill the hours required. He commented that 'My ability to hold the job is keeping me sane.'.

However, in order to complete those hours, he has to work at weekends as well. The School is happy with this arrangement but he feels quite anxious about his ability to receive ongoing support and to be able to manage working under these circumstances.

He commented that because of his fatigue and anxiety, he is 'screwed all day'. The tinnitus causes him to feel that way, as it is consistent. The only time when it is more manageable is when he is drumming with the band (see below). He commented that it is louder than the sound of the television in my waiting room.

When I asked about mood, he told me he is strong minded but now for the first time in his life he 'can see why people walk off cliffs'. He said whenever he starts thinking about this, he can break into tears. That usually happens a couple of times a week and he keeps it hidden from his partner."

Later in his report, Dr Dinnen noted that the Plaintiff had been drumming since the age of 15. The Plaintiff told me that when he was drumming, especially when he was playing in his band, was his "Happy time" because he was distracted from the tinnitus, and it is likely that the sound of the band masked the tinnitus. Dr Dinnen diagnosed an adjustment order with depressed mood of mild severity. That condition was secondary to the tinnitus. He did not think that any psychological therapy would be likely to be of any benefit, and he did not believe that any psychiatric care was needed.

118. On 17 September 2021, the Plaintiff saw Dr Andrew Porteous, an occupational physician at the request of his solicitor. Dr Porteous took a history that the Plaintiff had stopped working some seven weeks prior to one of the two occasions on which he interviewed the Plaintiff. The interviews were 27 May 2021 and 15 September 2021. On which occasion the Plaintiff told the doctor he had stopped working is unclear. The doctor thought that the Plaintiff’s being off work was reasonable given the extent of his cervical spinal pain and the tinnitus and the substantial interference which the tinnitus was causing with his sleep and his low mood consequent upon that.

119. On 15 November 2021, the Plaintiff was seen by Dr Scott Clark, a consultant psychiatrist again for, it would appear, perhaps an insurer or perhaps for the Defendant. Dr Clark's report is addressed to the New South Wales Government Department of Customer Service. Whether that was acting for the current Defendant or not, I do not know. However, it gives the Plaintiff's employer's name, so it may have been an examination arranged for the employer. Like Dr Dinnen, Dr Clark diagnosed an adjustment disorder with depressed mood secondary to the onset of persistent tinnitus which arose as a result of the injury sustained by the Plaintiff in the course of his employment.

120. I have earlier mentioned that the Plaintiff saw Professor Paul Fagan, an otolaryngologist, on 1 November 2021, probably for his workers compensation insurer. He expressed the view the Plaintiff was "fit for work both in pre-employment duties and other similar positions". He recommended a trial of hearing aid with masking for tinnitus. However, Professor Fagan's opinion does not appear to have been accepted by anybody else, including the Plaintiff's employer and its insurer.

121. On 10 February 2020, the patient saw Dr Christopher Cocks, a forensic psychiatrist, at the request of Dr Kalajdzic. He diagnosed major depression. At that time, the Plaintiff was working three half day shifts per week as a cleaner at Avalon Primary School. That ties in with one of the histories the Plaintiff has given, and with his evidence, that at one stage he was given work on the morning shifts on Mondays, Wednesday, and Fridays, which enabled him sometime between shifts to recover, and no shifts in the afternoon because by that stage he was too tired and overwrought. The Plaintiff described himself to Dr Cocks as being "Lazy and reclusive". However, the Plaintiff told the doctor that he was able to exercise through weight training and playing golf. Dr Cocks thought that psychological therapy remained crucial for the Plaintiff in order to enable him to address his tinnitus, and arrangements were made for the Plaintiff to see Mr Ben Gleeson of Northern Beaches Psychology at Newport.

122. I have eight treating reports from Mr Gleeson dated between 18 February 2022 and 9 July 2022. The Plaintiff described his attendances on Mr Gleeson as being almost like a godsend, that he benefitted greatly from being able to discuss his problems with Mr Gleeson and to receive the treatment which Mr Gleeson has provided to him. At the first consultation, Mr Gleeson administered a DASS which showed severe depression, mild anxiety, and moderate stress. That testing seems to indicate a deterioration in the Plaintiff's condition since he first saw Ms Sieradzki on 27 January 2021.

123. The Plaintiff was reviewed by Dr Anthony Dinnen at the request of his solicitors on 30 March 2022. Dr Dinnen was aware of the opinion of Dr Cocks and agreed in the diagnosis of a major depressive disorder consequent upon the tinnitus. He said this:

"I concur with Dr Cocks and agree the patient should not attempt to work more than his current 12 hours a week, because of his psychiatric condition and tinnitus."

124. On 15 July 2022, the Plaintiff was seen by Dr Doron Samuell, a clinical and forensic psychiatrist. Dr Samuell diagnosed a mild adjustment disorder with mixed disturbance of mood. The adjustment disorder was in response to the intrusive tinnitus described by the Plaintiff. The doctor thought, however, that the adjustment disorder which he diagnosed would not impact upon the Plaintiff's capacity for work. He pointed out that the Plaintiff's tinnitus affected his sleep and Dr Samuell did not dispute that, albeit that no sleep study had been done to verify the Plaintiff's claim. However, I accept that the Plaintiff has told the truth.

125. The Plaintiff was seen by Associate Professor Richard Jones, a consultant in rehabilitation medicine, on 26 July 2022. The doctor describes his report as a medico-legal one, but I do not know to whom it was directed. His diagnosis was of chronic ear impairment, possibly related to Mr Finniss's recreational drumming in a band and hearing loss in the right ear associated with tinnitus which was related to the incident on 25 October 2019. The doctor went on to say that the diagnosis was thus, the aggravation of a substantial and chronic degenerative condition of the neck and a failure of full resolution of symptoms and the onset of tinnitus in the right ear which was distressing. He expressed this prognosis:

"The prognosis is guarded, but I would expect Mr Finniss to be able to resume some of his recreational pursuits, including golf and operating his boat and I believe that he does have the potential to return to work as a cleaner. Initially I would suggest that this would be for about 20 hours per week and perhaps increasing to around 25 hours per week."

Nevertheless, he thought that it was unlikely that the Plaintiff would ever fully recover from his injury.

126. The Plaintiff was reviewed by Dr Payten on 1 August 2022, but it is not necessary to refer to that other than to point out that the Plaintiff was still working for 12 hours per week at that time. Dr Payten pointed out that there was no known medical cure for severe tinnitus, and the prognosis was that the Plaintiff would continue to suffer from the severe tinnitus, just as he was doing at that time. The doctor went on to say this:

"He should also see an ENT specialist such as Dr Lee who he has seen before so that the wax obstructing his right ear canal can be removed from the canal previously narrowed by the growth of exostoses. By doing this his tinnitus might be improved a little as wax blocking the ear canal can result in a louder tinnitus caused by increased resonance secondary to blockage of the ear canal.

…

The cost of removal of wax by microsuction from his right ear canal by an ENT specialist would be approximately $250 every six months. Were it not for the severe right-sided tinnitus and the severe high frequency sensorineural deafness in the right ear this removal of wax would not be necessary."

127. Dr Andrew Porteous reviewed the Plaintiff on 30 August 2022. By that time, the Plaintiff's employer had informed the Plaintiff it could not continue providing ongoing restricted duties to him and they had no further work for him. The Plaintiff is still employed by Facilities First and is in receipt of weekly payments of workers compensation but has not been able to work since Facilities First withdrew the restricted duties. Dr Porteous believed the Plaintiff had a marked reduction in his capacity, including work capacity. Nevertheless, he thought the Plaintiff could work part-time for up to 12 hours per week, presumably for four hours each of Monday, Wednesday, and Friday, work which he had been doing until it was withdrawn by the employer.

128. The Plaintiff was seen again by Dr Christopher Cocks on 27 January 2022. Dr Cocks, on this occasion, expressed the view that he lacked any work capacity at that time and was not suitable for returning to the workforce based on the severity of his depressive illness and his persistent symptoms of right-sided tinnitus. The rehabilitation provider retained by the Plaintiff's employer was not impressed with that opinion. Dr Cocks wrote a further report on 29 November 2022. Dr Cocks was asked a number of questions. The first was this:

"You mentioned in response to question 2, you advise you have assessed Craig to have nil capacity for work, despite the preceding statement summarising Craig's opinion that he can work for twelve hours (half days alternate days with rest in between). Craig continues to demonstrate his capacity as he weekly participates in rehabilitation services, job seeking, activities in the community (such as playing in his band, a round [of] golf, boating, etc.), providing support and counselling to friends/family who is going through troubling times, and working on his boat, etc. This all supports and demonstrates that Craig has a capacity for work. Are you able to please comment on how Craig does not have capacity for work when he is undertaking the outlined activities on a regular basis?"

The doctor would not agree with the final statement made by the insurer. The next question is headed "Question 2" but there are in fact three questions of Dr Kalajdzic. The first is:

"Why is it suggested that Craig should downgrade to nil capacity when he has demonstrated over the last twelve months and continues to demonstrate he has capacity?"

The second question is:

"Why is it that Craig has reached maximum medical improvement should downgrade to nil capacity?"

The third question is:

"What is the clinical reason as to why Craig will not improve any further from this point in time?"

Dr Cocks was undaunted by those questions and in answer to a question numbered 3 he maintained the view that the Plaintiff lacked capacity to return to the workforce. I find it difficult to understand Dr Christopher Cocks’ opinion.

129. The Plaintiff lives for three nights per week with his life partner Ms Francis, and for the four other nights of each week he lives on a boat moored in Pittwater at Palm Beach. Hence, the reference to boating in the insurer's questions which I have quoted. The Plaintiff has upgraded his boat since the accident, selling the old one and buying a new one. Pictures of each vessel are in evidence. One might think that living on a boat is some idea of luxury, but as has been submitted by the Defendant, living on a boat is often living in cramped conditions.

130. The Plaintiff is still a member of a band. Prior to this incident, he was a drummer in a trio known as Shade of Red. He stayed with that band for some time, abeit that it changed its name to Shade of Green and Gold to perform at one Australia Day event held at the Beach Club at Collaroy. More recently, the Plaintiff has been playing in a band known as Cam Daddo and the Paisley Prophets. Exhibit GG is a series of social media extracts which may have been misallocated, by me in that they were tendered by the Defendant, but I allocated to them an exhibit letter pertinent to the Plaintiff.

131. Shade of Red performed at the Dee Why RSL Club on 12 April 2019, at the Narrabeen Sands Hotel on 26 April 2019, at the Ocean Beach Hotel Umina on 4 May 2019, and at the Avalon RSL on 24 May 2019. More recently, Shades of Red performed on 14 June 2022 at the Dee Why RSL Club, but the exhibit is not arranged in chronological order. There were four other performances at the Sands at Narrabeen on 29 June 2019, and the Dee Why RSL on 19 July 2019, and the Avalon RSL on 23 August 2019. There was a performance at the Ocean Beach Hotel at Umina on 31 August 2019, and performances in September 2019 at the Dee Why RSL Club, and at the Sands at Narrabeen on 16 November 2019. That is, after the injury now in question. There was a performance on 21 March 2020 at the Sands at Narrabeen, but clearly the band performances were interrupted by the COVID 19 pandemic. On 22 November 2020, Shades of Red performed at the Avalon Bowling Club and under the name Shade of Green and Gold on Australia Day 2021 at the Beach Club at Collaroy Hotel, I think at Collaroy Beach.

132. The first performance I am aware of the Plaintiff with Cameron Daddo and the Paisley Prophets was on 26 March 2021, and at the Avalon Bowling Club on 16 June 2021, and at the Avalon RSL on 26 June 2021, and at the Avalon Bowling Club on 15 January 2022. The band were due to perform on 2 April 2022 at the Sands at Narrabeen and on the relevant page of Exhibit GG there is a photograph of the Plaintiff sitting behind a drum kit wearing either a baseball cap turned backwards, or Andy Capp hat turned backwards. Again, out of order, there was a performance at Narrabeen on 29 March 2022. The Plaintiff appears to have performed in a band called the Allniters on Friday 4 November 2022.

133. There was a performance with Cam Daddo and the Paisley Prophets scheduled for 1 December 2022, and another performance by that band at the Avalon Bowling Club on that day. One assumes that the Plaintiff obtains some form of remuneration, or the band does for those performances, but there is nothing in evidence about that.

134. I accept, however, that the Plaintiff only performs in the band because of the enjoyment which he experiences from it, which masks his tinnitus, giving him the "happy time" of which he told me in evidence. The Plaintiff still visits the Avalon Primary School from time to time to do volunteer work on the grounds. He might operate a ride-on mower when he does that. Again, that is not inconsistent with his allegations. The noise of the mower may well mask the tinnitus. The Plaintiff is now 60 years and eight and a half months old. If he has a normal life expectancy and there is nothing to say otherwise, he can expect to live for a further 24.22 years. His working life expectancy is to age 67, a period of six years and three and a half months. The Defendant has given me a multiplier for six years at the 5% discount rate. That multiplier is 271.4. The multiplier for seven years is 309.4. I have averaged that out to allow for a multiplier of 280 when considering future economic loss.

135. I turn now to the various heads of damage. The Plaintiff's past out of pocket expenses are agreed at $58,476.27.

136. With some assistance from counsel, I have brought in the Plaintiff's future out of pocket expenses as being $42,612. I have allowed six GP consultations per annum at the rate of $80 per consultation. The Plaintiff was claiming $50 per month in medication. I allow that. I allowed one specialist consultation in otorhinolaryngology at the rate of $250 per consultation per annum. I have also allowed one specialist consultation with an orthopaedic surgeon or the like to treat the Plaintiff's cervical problem. I have allowed $250 per annum for such a consultation. I allow the right ear cleaning described by Dr Payten in his second report. That means that makes an allowance of $500 per annum. For a hearing aid with masking, I have allowed $3,000 for the right ear only based on the averaging of the sums provided by Mr Kristian Robinson in his report which I have quoted. I should allow for one hearing aid with masking every three years because technology improves rapidly in that field. That leads me to allowing $1,000 per annum for that. When I reduce all those sums to annual amounts, I then reduce to a weekly amount. The weekly amount for those sums is $59.23 with a multiplier of 737.8. I reach a total of $43,700. Allowing a discount of 15% for vicissitudes, that amounts to a lump sum of $37,145.

129. I have also made an allowance for the Plaintiff continuing to see Mr Ben Gleeson in the future on a monthly basis. I have been told that each session with Mr Gleeson costs $238.50. That gives me an annual figure of $2,862 or $55 per week. The multiplier for two years is 99.4. That gives me a total of $5,467. I do not believe that that needs to be discounted as it is only two years into the future. The sum of those two amounts is $42,612.

130. The past economic loss is agreed to be $91,834.

131. The provision for past superannuation loss is 11% of that sum which is $10,102.

132. The parties agree that but for injury, the Plaintiff would be earning $850 per week net. The question is, does the Plaintiff have any residual earning capacity? Clearly, he has the residual earning capacity to work three morning shifts per week as a school cleaner, as he had been doing until those duties were withdrawn by his employer, and Dr Cocks decided the Plaintiff was "totally incapacitated". I believe it would be in the best interest of the Plaintiff to exercise any working capacity that he has because it will keep him occupied and stop him "going mad" because of his tinnitus. However, if the Plaintiff's actual employer, Facilities First, will not provide him with three four-hour shifts over a five-day period, then I ask myself rhetorically, who would? If the plaintiff were working 12 hours per week, he would be earning $255. That indicates that a one four-hour shift, he would earn $85.

133. I have come to the view that Plaintiff could probably work for two four-hour shifts each week, perhaps on a relief basis as a cleaner in case one cleaner could not attend one morning or another each week, but the Plaintiff may have other work that he could do. I allow a residual earning capacity of $170 for the Plaintiff. That gives an economic loss of $680 per week. Applying the multiplier of 280, I reach a total of $190,400. I must reduce that by 15% for vicissitudes which reduces that lump sum to $161,840. I round that off to $160,000.

134. The loss of superannuation in the future is 14% of that sum which is $22,400.

135. The remaining claim is in respect of damages for non-economic loss. The Plaintiff has submitted that he ought be awarded 40% of a most extreme case. The Defendant has submitted that I would award him 26% of a most extreme case. Although that might suggest not a great difference, the way the CLA works is otherwise. 26% of a most extreme case would entitle the Plaintiff to a lump sum of $56,500. 40% of the most extreme case would end up in an award of $282,000.

136. The concept of a most extreme case is well known. It includes very serious injuries such as paraplegia and tetraplegia. I have held, in another field, it to include a hemiparesis, that is, a partial paralysis of one side of the body in a very young man in his early 20s who had organic brain damage with some intellectual dysfunction, but more importantly social disinhibition. The authorities make it clear that one should award more to a younger person that to an older person because, clearly, a younger person would experience pain and suffering for a much longer period of time than an older person.

137. As I have pointed out, the Plaintiff's current life expectancy is 24.22 years. While he could not be described as a young man, he is otherwise fit and healthy, and I expect that he might live longer than the medium life expectancy. Perhaps over 25 years. Perhaps 30 years.

138. The Plaintiff has had a very interesting and perhaps satisfying life which has been gravely inconvenienced by the head injury which has led to the chronic tinnitus which has caused the adjustment disorder which appears to be in the diagnosis favoured by the greater number of psychiatrists, and has led to sleep deprivation, interference with sleep, and chronic tiredness which limits the Plaintiff's ability to earn. It also interferes with his enjoyment of life severely. As one ages, one, perhaps, relies more heavily on one's ability to read and one's ability to watch television and shows available on a television set, streaming services and the like.

139. The Plaintiff's ability to read has been interfered with. I understand his ability to enjoy watching television and the like has also been interfered with. The Plaintiff has been, in the past, a writer of short stories. The Plaintiff candidly admitted, and he gave a history of this to Dr Dinnen, that he writes erotic short stories. He appears to write those on-line, but as the story which he is writing approaches its catharsis - or perhaps one should say climax - he inserts a pay wall in order to make some money from his erotic short stories. His ability to do that has been interfered with substantially by his tinnitus.

140. I have reached the view that in comparison to a most extreme case the Plaintiff's experience of pain and suffering, and loss of amenity of life should be viewed as one-third of the most extreme case. I allow 33% of a most extreme case, which is the sum of $232,500.

141. If the mathematics of my Associate and the Defendant's solicitor are correct the total of those sums is $617,924.27. If the matter is disputed my notes about quantum can be found on pages 24 and 25 of the red bench book headed "Neilson DCJ Civil 7 February 2023. 2." And it is currently open. Now does anyone want any further reasons?

O'DOWD: No your Honour.

HIS HONOUR: No? What about you Mr Chrysostomou?

CHRYSOSTOMOU: No your Honour.

150. I have enquired of counsel for the parties for any other reasons for judgement are required and I am told that none is so required. For those reasons, I give verdict and judgment for the Defendant against the Plaintiff.

151. I order the Plaintiff to pay the Defendant's costs on the ordinary basis until 25 January 2023, and thereafter on an indemnity basis.

Decision last updated: 06 April 2023