Franco v Workers Compensation Nominal Insurer (No 2)

[2021] NSWSC 129

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:

Franco v Workers Compensation Nominal Insurer (No 2) [2021] NSWSC 129

Hearing dates:

3, 4 August 2020

Decision date:

22 February 2021

Jurisdiction:

Common Law

Before:

Rothman J

Decision:

(1)   Judgment for the plaintiff against the defendant;

(2)   The defendant shall pay the plaintiff damages in the sum of $1,138,449.60;

(3) Pursuant to the terms of s 101 of the Civil Procedure Act 2005 (NSW), interest will be paid at the prescribed rate in accordance with the rules;

(4)   The defendant shall pay the plaintiff’s costs of and incidental to the proceedings;

(5)   Leave is granted to each party to address the Court on any calculation error; or misstatement of multiplier; any need to repay or to specify repayment of any sum; the form of the orders; and on any special or different order as to costs. Such application shall be made within 2 working days of the date of judgment, by email, accompanied by a short submission in writing, to the extent so advised, of no more than five pages, not including any evidentiary material relating to any offer that may or may not have been made and may be the subject a response within a further 3 working days by any party affected by any such application or submission;

(6)   Otherwise proceedings are dismissed.

Catchwords:

WORKERS COMPENSATION – common law damages – negligence of employer – contributory negligence – economic loss, past and future – damages awarded

Legislation Cited:

Corporations Act 2001 (Cth), s 601AG

Civil Liability Act 2002 (NSW)

Civil Procedure Act 2005 (NSW), s 101

Workers Compensation Act1987 (NSW), ss 66, 151G, 151H, 151IA

Workplace Injury Management and Workers Compensation Act 1998 (NSW), s 294

Cases Cited:

Andar Transport Pty Ltd v Brambles Ltd (2004) 217 CLR 424; [2004] HCA 28

British Fame (Owners) v Macgregor (Owners) [1943] AC 197

Council of the City of Greater Taree v Wells (2010) 174 LGERA 208; [2010] NSWCA 147

DIB Group Pty Ltd t/as Hill & Co v Cole (2009) Aust Torts Reports 82–022; [2009] NSWCA 210

Fox v Wood (1981) 148 CLR 438; [1981] HCA 41

Franco v Workers Compensation Nominal Insurer [2020] NSWSC 915

Kondis v State Transport Authority (1984) 154 CLR 672; [1984] HCA 61

New South Wales v Lepore (2003) 212 CLR 511; [2003] HCA 4

Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492 at 494; [1985] HCA 34

Pollard v Baulderstone Hornibrook Engineering Pty Ltd (2008) Aust Torts Reports ¶81–949; [2008] NSWCA 99

Russell v The Trustees of the Roman Catholic Church for the Archdiocese of Sydney (2008) 72 NSWLR 559; [2008] NSWCA 217

Category:

Principal judgment

Parties:

Marina Franco (Plaintiff)
Workers Compensation Nominal Insurer (Defendant)

Representation:

Counsel:
R de Meyrick & J Mrsic (Plaintiff)
S Kettle (Defendant)

Solicitors:
Grieve Watson Kelly Lawyers (Plaintiff)
Hicksons Lawyers (Defendant)

File Number(s):

2019/210260

Judgment

1. HIS HONOUR: The plaintiff, Marina Franco, alleges that she was injured in a workplace accident on 28 December 2003. The injury occurred, on the evidence of the plaintiff, when the plaintiff, who was working in a grocery store, reached into a cupboard under the display cabinet and serving shelves. An earlier judgment of the Court, as presently constituted, dealt with the issue of leave to commence proceedings against the Workers Compensation Nominal Insurer, as a result of the delay between the commencement of the proceedings in 2019 and the accident in 2003. [1]

   1. Franco v Workers Compensation Nominal Insurer [2020] NSWSC 915.

2. Some of the matters involved in the proceedings are uncontentious. The plaintiff was the subject of an assessment of whole person impairment (“WPI”) under the scheme applicable to work injury damages at common law and she claims to be totally incapacitated for work as a result of the injury that she suffered on 28 December 2003. The claim is brought against the Workers Compensation Nominal Insurer (hereinafter “the defendant” or “the Nominal Insurer”), because the employer at the time of the alleged accident is no longer operating. The employer at the time was insured for workers compensation.

3. As earlier stated, the plaintiff alleges that she was required to lift a relatively heavy can of groceries located under the counter by leaning forward into the counter and lifting and sliding the can to the service area. As a consequence of that conduct, the plaintiff says she suffered injury to her back and neck; also suffers from urinary/bladder impairment secondary to her back injury; and gastrointestinal injury secondary to her medications. Further, the plaintiff claims to have sustained a secondary psychological injury.

4. The plaintiff claims total incapacity for work as a result of the injury.

5. Following an assessment of WPI in a medico legal report dated 10 July 2015, there was a contested Arbitration in the Workers Compensation Commission (hereinafter “the Commission”) in which the plaintiff was found to have sustained gastrointestinal and urinary/bladder impairments as a result of the injuries and a Medical Assessment Certificate was issued on 10 April 2018.

6. On 2 May 2018, a Certificate of Determination was issued by the Commission, which certified that the plaintiff was 15% whole person impaired in respect of her injury sustained on 28 December 2003 and, accordingly, the plaintiff was entitled to claim damages, pursuant to the provisions of s 151H of the Workers Compensation Act 1987 (NSW) (hereinafter “the 1987 Act”).

7. The current proceedings were commenced by Statement of Claim on 7 July 2019 and named the defendant as BMG on Norton Pty Ltd, trading as Norton Street Grocer and also claimed against the Employers’ Mutual NSW Ltd. BMG on Norton Pty Ltd was deregistered on 4 September 2017, as a consequence of which, on 6 January 2020, the plaintiff filed an Amended Statement of Claim claiming against the Nominal Insurer. [2]

   2. See Corporations Act 2001 (Cth) s 601AG.

8. The evidence is in short compass. The plaintiff filed two evidentiary statements; there is medical evidence; evidence relating to earnings, earning capacity and average weekly earnings; and evidence from a former director of Norton Street Grocer. There was cross-examination of both the plaintiff and the former director of Norton Street Grocer.

Evidence

9. Marina Franco was born 16 February 1960 in Rome, Italy and arrived in Australia as a 10-year-old in 1970. The plaintiff completed school in 1974 at the age of 14 and worked in various retail shops, grocers and delicatessens.

10. The plaintiff first married in 1983. The plaintiff gave birth to two daughters arising from that relationship, and the relationship broke down in 1991. Following the breakdown of the marriage, the plaintiff continued to work as a sales assistant and supported her family as a single parent.

11. From 1996 to 1998, the plaintiff worked at Wariemba Grocer in Five Dock, as an assistant delicatessen manager. Unfortunately, one of her daughters developed leukaemia and the plaintiff was required to cease work for a period of approximately 2½ years, to care for her daughter. The daughter tragically died on 11 October 2000.

12. In late 2001, the plaintiff returned to work at Wariemba Grocer. Her other daughter, Sonia, has disabilities, and the plaintiff supported the family. The plaintiff had worked at other stores, including Target, for 2½ years, Dalton Pharmaceutical for 4 years and a number of other places of employment. Nevertheless, her work at delicatessens was the last aspect of her employment and led her to seek and obtain employment at Norton Street Grocer.

13. When the plaintiff worked at Wariemba Grocer in Five Dock, between 1995 and 1996, she worked as a manager, although, by the description and/or impression of the evidence, it was in the capacity more as a leading hand/supervisor. In that capacity, the plaintiff received orders and trained other staff to work in the delicatessen. However, she did not instruct those staff on how to perform duties.

14. Prior to working at Norton Street Grocer, her work at Wariemba Grocer saw her overseeing slicing on the counter; and generally supervising customer service.

15. The plaintiff had difficulty working at Wariemba Grocer as a result of the impact on her of the tragic death of her daughter and the circumstance that her previous place of employment reminded her of the illness and the death. Further, people at work would continue to ask about how the plaintiff was coping.

16. In about 2003, the plaintiff enquired about other work and in September 2003, the plaintiff commenced a paid work trial as a delicatessen sales assistant at Norton Street Grocer. This employment was obtained by the plaintiff walking into the store from the street and enquiring after a position.

17. Within approximately one month, the position was full-time. The plaintiff makes clear that she enjoyed the job and enjoyed the people, the customers and her co-workers.

18. The hours worked by the plaintiff is a matter of some little controversy, which, as these reasons will detail, can be easily resolved. Nevertheless, the plaintiff’s memory is to the effect that she worked 5 to 6 days per week at Norton Street Grocer and regularly worked 12-hour days. She recalls commencing work about 6:30 AM and finishing at 7:30 PM. She enjoyed a 45 minute lunch break and two 15 minute tea breaks.

19. According to the plaintiff, she worked regularly on Sundays, but for slightly shorter hours as the store closed earlier. The shifts on Sunday, according to the plaintiff, were between 10 and 11 hours. When the plaintiff worked Saturdays, she would be given a day off during the week and estimated that her work hours averaged approximately 60 hours per week. The plaintiff asserts that she was paid at the award rate for a full-time worker with penalty rates.

20. There are records of the former employer which disclose, for some periods, working hours between 25 and 30 hours per week. According to the plaintiff, such records are inaccurate and she never worked for such minimal hours.

21. The plaintiff was paid in cash in an envelope each week, which varied depending upon the number of hours that had been worked and whether penalty rates were payable. The plaintiff does not recall a week where the pay was less than $1000 cash in the envelope.

22. I assume, given that the amount was paid in cash, that the amount paid was net of tax. The envelope included a note, either inside or on the envelope itself, indicating the hours worked, the rate of pay, the tax that was deducted and the superannuation.

23. The second daughter, Sonia, left school in 2002, but could not continue working as a result of her disabilities. It was important to the plaintiff to work full-time and to support her family, as can be expected.

24. There is some controversy as to whether the plaintiff was to be promoted to a manager at a new store in Bondi that was to be opened by Norton Street Grocer. The controversy is only marginally relevant to the issues with which the Court must deal.

25. I accept the evidence of the plaintiff that she loved the work she was doing and was appreciated as a good employee. Whether there was such a promise for manager status, or whether it was part of a compliment as to the work she was performing, which was not intended to be binding or implemented, is largely, as stated, irrelevant to the proceedings and the calculation of damage.

26. Prior to the injury on 28 December 2003, the plaintiff had considered that her life, and in particular her working life, was “back on track”. The plaintiff was in good health and had managed to come through the very rough period with her daughter’s illness and passing.

27. The plaintiff met her current husband in 2002. The plaintiff did have a previous injury to her right side which occurred as a result of a motor accident in 1991, but there were no continuing symptoms or lingering problems associated with the motor vehicle accident.

28. The plaintiff did suffer tinnitus for a while, after the accident, but it disappeared. The plaintiff had no problems with her back or neck and was physically and mentally fit, until 28 December 2003.

29. As to the minor controversy relating to whether the plaintiff was to be made a manager, the plaintiff attests to a conversation with “George”, one of the owners of the Norton Street Grocer. The conversation occurred, it is said, on 24 December 2003, after closing. For obvious reasons it was likely to be a conversation that occurred in the “spirit of Christmas”. Nevertheless, the plaintiff asserts that the conversation was in or to the following effect:

“People, you have to look at this woman. Since she has come here, we have sold over $1 million [in stock]. You should all learn from her. We are opening up a business in Bondi. My partner and I would be honoured, Marina, if you would run it. What we have seen here, the way you sell, it is incredible. You are like Speedy Gonzales. You serve two or three customers at a time.”

30. Whatever be the terms of the conversation and whatever the intention of the statement to other staff, no management position was ever formally offered and the plaintiff never worked in a manager position at Norton Street Grocer. I should add at this stage, although this evidence will be the subject of summary later in these reasons, that the former director of Norton Street Grocer contests any intention to appoint the plaintiff as a manager at Bondi.

The incident on 28 December 2003

31. On 28 December 2003, the plaintiff was working at Norton Street Grocer when, according to the plaintiff, she was directed by her manager, Tony, to move between seven and ten drums of olives. Each drum is said, by the plaintiff, to be about 50 cm high and weighing over 20 kg.

32. The drums were underneath the bench, as earlier stated, the bench being the bottom of the servery which had a glass display cabinet. The plaintiff was required to take them out of the cupboard; move them to the back of the store, out of the serving area; and empty them into a bowl for marinating.

33. Apparently, each drum was required to be opened with a screwdriver; and the drum was required to be picked up, and tipped upside down in the sink so as to empty the fluid from the container. The plaintiff described it as “hard, heavy, awkward work”.

34. The plaintiff described the bench and cupboard underneath as being low but sufficiently high enough to allow the plaintiff to get her head underneath the top of the cupboard in a bent over position. The plaintiff describes the position as “very awkward”.

35. The plaintiff, in a statement, attests to the fact that she requested assistance from the delicatessen manager, Tony, but Tony’s response was that it was her job and she was required to do it herself.

36. The plaintiff managed to do a few of the tins in accordance with the description above. After the first few, as the plaintiff bent under the bench to get a drum, she felt a sharp pain in her lower back. At the time, the plaintiff was holding the handle of the drum (there was a handle on the top of the can), trying to lift it slightly so as to slide it out of the cupboard.

37. The cupboard had a small step or raised stone at the front of the cupboard and the items, stored in the cupboard, were at a slightly lower level than the level required to lift them out of the area.

38. The plaintiff felt pain in the back, as described above, but proceeded to drag the drum to the back of the delicatessen, as earlier indicated. The plaintiff continued to work that day but felt constant discomfort.

39. The following day, the plaintiff awoke in severe pain. The plaintiff said that she could not get out of bed; her lower back was in excruciating pain with every movement; and she was suffering pain down her leg and into her left foot. The plaintiff telephoned her manager and told him she could not attend work. The manager told her to see a medical practitioner. The plaintiff has been unable to return to work since that date.

Subsequent treatment and condition

40. The general practitioner whom the plaintiff was directed to see was Dr Holiday. She attended on Dr Holiday on 29 December 2003.

41. On 30 December 2003, the plaintiff attended her own general practitioner, Dr Tringali. Dr Tringali certified the plaintiff unfit for work and referred her for a number of investigations. He prescribed medication and referred the plaintiff to a neurosurgeon, Dr McGee-Collett.

42. Dr McGee-Collett was consulted in January 2004 and surgery was a suggested option. The plaintiff did not desire surgery and was scared of the risk.

43. The plaintiff nevertheless noticed increased pain, stiffness and aching in her neck. The plaintiff had never experienced such symptoms before. The neck issues were, according to the plaintiff, not as bad as those from which she suffered in her lower back, but the neck issues were deteriorating.

44. The plaintiff continued to be treated by Dr Tringali, until about late 2004, when she changed general practitioners and attended on Dr Howlett. Dr Howlett continued to treat her injuries; prescribed medication; offered counselling and support for the management of the plaintiff’s pain; and generally monitored the plaintiff’s condition.

45. By mid-2004, the plaintiff says that she was suffering “psychologically” with all the pain and her inability to work. The plaintiff considered that she was letting down her daughter and the plaintiff could not cope with that circumstance. She became increasingly concerned for her future and began to suffer from anxiety and panic attacks and was depressed. The plaintiff felt “sick” all of the time.

46. The plaintiff was referred to a psychologist, Wendy Bailey and later to a psychiatrist, Dr Gray. From about April 2006, the plaintiff started seeing a psychologist, Carmelo Pollicina, and, from March 2007, attended on the psychiatrist, Dr Keshava. These practitioners continued to treat the plaintiff for her anxiety and depression, seemingly associated with the injury that she suffered and the resulting condition.

47. By 2009, the referred pain from which the plaintiff suffered in her left leg increased. The plaintiff suffered sudden flare-ups in pain or weakness and a loss of feeling. This caused the plaintiff to lose balance and fall.

48. In April 2009, the plaintiff experienced sudden lower back and left leg pain, causing her to fall down the steps to her garage at home. That fall resulted in the plaintiff hitting her garage door and falling to the ground. The plaintiff hurt her nose, which was swollen for a week and the neck pain, which had been increasing gradually, became significantly worse.

49. There were two other falls, at least. The plaintiff times them as between approximately July to September 2009. In one incident, the plaintiff’s left leg gave way following an episode of severe back pain which caused her to take all of her weight on her right side. In that fall the plaintiff twisted her right ankle and again aggravated the symptoms associated with her neck.

50. The other incident involved her left leg giving way, again, and, once more, followed severe lower back pain. On this occasion, the plaintiff crashed into a wall. The plaintiff says she is now scared to use stairs and, if she is required to use stairs, feels that she must take hold of something when doing so. The plaintiff says she is nervous about leaving the house.

51. After her neck pain worsened, and after the falls in 2009, the plaintiff developed pain and restriction in her right shoulder. This continues. The neck pain has also kept deteriorating. The pain from her neck goes into her right arm and shoulder.

52. The plaintiff was referred to a pain and rehabilitation specialist, Dr Aggarwal. In 2010, the plaintiff was referred to a neurosurgeon, Dr Allan, who advised against surgery.

53. In early 2011, the plaintiff experienced another bad fall, caused by her back pain and weakness in the left leg. Later in 2011, the plaintiff completed a low intensity pain management program at Royal Prince Alfred Hospital (“RPA”). The plaintiff was referred to Dr Negrine in relation to her right ankle and foot injury, sustained in one of the falls in 2009. Dr Negrine advised against surgery.

40. By this time, according to the plaintiff, she had begun experiencing such severe back pain that she would become incontinent, initially once or twice per week. It happens at the peak of a particularly bad incident of back pain, and, since that time, she is required to wear incontinence pads.

41. The plaintiff married her long-time partner in 2012, who has become her carer in relation to many aspects of her life.

42. On 18 July 2013, the plaintiff fell in a car park on uneven pavement and injured her left shoulder and arm, left leg, and aggravated her back and neck injuries. The main injury was occasioned to her left shoulder and arm.

43. The plaintiff continues on the medication for pain and inflammation associated with her injuries and also for her secondary psychiatric condition. Those conditions are said, by her practitioners, to have had a negative effect on her dental and gastrointestinal health.

44. Since about 2010, the plaintiff has had increasing problems associated with her mouth and teeth which, it is said, relate to her medications. Many of her teeth have been replaced with ceramics and/or implants.

45. The plaintiff suffers reflux; feels sick often; suffers from constipation; suffers from bloating, is sore and generally unwell. The plaintiff finds these symptoms, and the noises they effect, embarrassing and painful. It also interferes with her sleep.

46. The plaintiff continues, according to her testimony, to be unable to work due to the injuries and disabilities suffered as a result of the incident on 28 December 2003. The plaintiff continues to suffer constant lower back pain and the back pain becomes excruciating from time to time, with referred pain down her left leg and into her foot. When the pain is severe, it causes the plaintiff’s left leg to collapse sometimes. The severe pain also causes the plaintiff to lose control of her bladder.

47. The plaintiff’s neck pain is also constant. There is a constant ache and the pain will often refer through her right shoulder and arm. The plaintiff is unable to move her right shoulder fully. As stated, the plaintiff has lost all or most of her teeth; she feels sick all of the time; she feels depressed about her circumstances; the plaintiff experiences frequent anxiety and panic attacks; and cannot work. The plaintiff feels that she is a burden on her husband and daughter.

48. The foregoing arises overwhelmingly from the plaintiff’s first evidentiary statement. The plaintiff submitted a second evidentiary statement, dated 26 February 2020, which essentially deals with her pay records and diary notes as to the hours worked.

49. The plaintiff located an old notebook diary which is said to have once belonged to her daughter Melissa but which the plaintiff started using at some point. The plaintiff had not used it for 10 years and sought to explain the non-production of the documentation earlier in the proceedings on that circumstance.

50. One of the pages in the diary has a note of rosters when the plaintiff was working at Norton Street Grocer. According to the plaintiff, when she first worked at Norton Street Grocer, she would become muddled up about the days that she was working or had worked and the diary note was used as an aid at the time, seemingly, on a contemporaneous basis. However, the note is one, according to the plaintiff, of her rostered hours; not the hours she worked as and when worked.

51. Generally, I consider the plaintiff truthful and reliable. I do not consider that the plaintiff exaggerated symptoms or falsely testified as to either the injuries from which she suffered or the manner in which she moved the drum of olives.

52. For the reason associated with the purpose of the note, I do not consider the notes produced late in the piece as an accurate and detailed summary of the hours worked. I do not by that statement suggests that the notes are disingenuous or forged.

53. Nor do I consider that the plaintiff has fabricated them. I do however consider that the notes were intended to be a general description of the hours to be worked if that day was rostered. The hours worked must be assessed bearing in mind all of the evidence as to hours worked and the other material that is available.

Cross-examination

68. The plaintiff was cross-examined. It is no criticism of the cross-examination that much of the cross-examination evidence was uncontroversial.

69. The plaintiff accepted that, as a manager working at Wariemba Grocer, where she worked prior to Norton Street Grocer, she would have known not to lift heavy objects. The plaintiff accepted that if she saw someone carrying heavy things when she was working as a manager at Wariemba Grocer, she would have told them not to do that work. [3]

    3. Tcpt, 3 August 2020, p 12(24).

70. Some of the cross-examination dealt with some distressing aspects of the plaintiff’s life. Again, I make no criticism of the cross-examination. On the contrary, the questions and answers were necessary and informative, but, irrelevant to most of the issues with which the Court is required to deal. There was some mild criticism of the plaintiff relating to searching for bank records and there was an exploration of the circumstances in which she obtained a position at Norton Street Grocer and her work in that environment.

71. In particular, there was cross-examination as to her wage records and whether the plaintiff was paid during her trial period from the end of September 2003 or from a later period. Given that the Court is concerned with loss of earnings after December 2003 and with capacity for work, thereafter, rather than actual earnings prior to the injury, whether she was paid from 30 September 2003, or sometime marginally later than that, is not material, except, if it be relevant to credit.

72. There was some confusion as to the meaning of the term “payslips”, evident from the cross-examination. The plaintiff maintained that she received an envelope with her hours of work; the amount she was being paid; her superannuation and the tax deducted. These amounts were written on the outside of the envelope. The plaintiff did not retain the envelopes and was paid in cash.

73. The payroll activity documents, about which the plaintiff was asked, came into the possession of the plaintiff when Norton Street Grocer gave the plaintiff her superannuation records. The plaintiff recalls that, at the end of October 2003, in her envelope, there was a slip of paper which explains the amount of “super” and tax that had been paid and/or was deducted. [4]

    4. Tcpt, 3 August 2020, p 20(15-20).

74. The plaintiff did not, at the time they were provided, challenge the accuracy of the payroll advice forms and was told by other workers that that was how the pay was managed. The plaintiff was paid weekly on Saturdays in cash in envelopes, as earlier described.

75. There was then cross-examination on a number of the pay records. It must be said that the pay records are not unconfusing. For example, one of the pay records indicates 31 hours per week at a rate of $13.34 per hour, which, as one would expect in a computer generated record, accords with the amount paid, being $413.54 for the week from 14 November 2003 to 20 November 2003. However, given that the records are said to have commenced only on 14 November 2003, it shows a payment to date of $2,868.10 and tax paid of $2,667. This is difficult to reconcile with the evidence of the plaintiff and even more difficult to reconcile with the suggestion in cross-examination that the first week the plaintiff was paid was on the week commencing 14 November 2003.

76. The records do not become clearer in other examples. I am prepared to accept that there may well have been a discrepancy between the superannuation records and tax payable records of Norton Street Grocer and the rates of pay and conditions of employment actually enjoyed by the plaintiff. I need not comment on any other worker.

77. That which is clear, and was accepted by the plaintiff, was that her hours of work varied from week to week. There was significant cross-examination on the records in the hours of work that they may depict. These issues will be the subject of comment later in these reasons for judgment.

78. Nevertheless, the cross-examination of the plaintiff referred to the Employees Report of Injury. [5] This document is not wholly completed in the writing of the plaintiff and was completed in combination with the employer or its representative.

    5. Court Book p 110 (Employee’s Report of Injury).

79. That report of injury records the plaintiff worked 12 hour shifts four days per week. Frankly, I consider this to be the most reliable evidence as to the plaintiff’s working hours.

80. It has been completed, as stated, with the concurrence of the employer; it accords with the general recollection that the plaintiff has that she worked significantly more than 35 hours per week; it would accommodate a working week which included Saturdays and Sundays on a rotating basis; and would have met the requirements of the business such as Norton Street Grocer.

81. The document is an official document, which would have required both the plaintiff and the employer representative to be accurate as to the circumstances of work. Moreover, it is not an unusual means of effecting a practical solution to a six-day working week and seven-day opening hours for employers that are in service delivery. The 48-hour per week working hours is equivalent to an ordinary six-day working week, with eight hours of overtime (approximately).

82. In 2003 it would, more likely than not, have entitled a worker to shift work allowances and/or overtime. Further, it accorded with the plaintiff’s memory that she worked approximately 11 or 12 hour days at Norton Street Grocer. This accords with the notes of the shifts that were taken in the diary or noted in the diary; it accords, more or less, with the pay rates that would have been applicable; and the overall pay that the plaintiff recalls she received. It also accords with the practical arrangement that would have suited the employer which needed to operate on a seven day working week basis. It may well have been that that other workers were employed for three days a week to supplement the full-time or more fully employed staff that worked on a four-day basis.

83. In any event, notwithstanding that the Employee’s Report of Injury, to which the Court has just referred, referred to “a tin of olives”, [6] I accept that the reference to a tin of olives was a reference to the tin that was being lifted at the time that the pain was felt by the plaintiff. I also accept that the plaintiff lifted seven to eight tins during the course of that incident. I also accept that the number is a recollection, but it was more than one tin and probably some little more than five.

    6. Tcpt, 3 August 2020, p 36(9-44).

84. The handwriting describing the incident is the handwriting of the plaintiff. The handwriting on the remainder of the document is not the plaintiff’s handwriting and. The plaintiff suggests it was the handwriting of Maria Clark, the bookkeeper/staff manager at Norton Street Grocer.

85. There was also cross-examination as to the weight of each of the tins of olives. This is a matter with which the Court will deal in dealing with the evidence of the former director of Norton Street Grocer.

86. I accept that the tins of olives did not weigh between 25 and 28 kg, but I accept that, in the circumstances of these proceedings and the nature of the injury and manner in which the injury occurred, the precise weight of the tins of olives is almost irrelevant. The manner in which the tin was lifted and dragged would, even with weights of 10 kg be capable of causing an injury of the kind alleged in these proceedings.

87. The tins of olives had handles; were rectangular in shape; and, in order to slide them out of the storage area, including lifting them over the step or kick plate, the plaintiff was required to lift, to some degree, the tin of olives while she was extended under the counter. It was at that time, when the plaintiff was kneeling, that the plaintiff felt the pinch in her back.

88. There were no independent witnesses of the lifting incident or the occasion of the injury. The plaintiff made it clear that she had known that, in her previous employment, olive tins were heavy and required lifting by two persons. The plaintiff reaffirmed that she had asked for assistance but was told it was her job and performed the work because she did not want to lose her job. [7]

    7. Tcpt, 3 August 2020, pp 76(14) – 77(4).

89. There was cross-examination as to the employment of the daughter; her interest in work since the incident; and a number of comments made to medical practitioners. The cross-examination did not affect my impression of the witness, her demeanour and/or her truthfulness.

Evidence: George Angelidis

90. The Court has previously mentioned evidence adduced from a former director of Norton Street Grocer. That person was George Angelidis. The evidence was adduced by the defendant in the proceedings.

91. Mr Angelidis is currently a director and manager of a wholesale grocery company and was previously a manager, and then later a director, of Norton Street Grocer. Mr Angelidis was the store manager at Norton Street Grocer, Leichardt until approximately 2005 at which point in time he accepted a directorship of the company. The company was deregistered, voluntarily, on 4 September 2017, having been subsumed within a larger grocery chain.

92. Mr Angelidis commented on the affidavit and witness statements of the plaintiff. Understandably, Mr Angelidis no longer has any records relating to Norton Street Grocer, but had a memory, albeit not detailed or absolutely accurate, as to the operation of the company in Leichardt.

93. While there was some issue as to the timing of the opening of the Bondi Junction store of Norton Street Grocer, it was, essentially, an issue that was peripheral to the matters to be determined by the Court.

94. Mr Angelidis described the store at Leichardt; the size of the serving area; the concrete step that was tiled and about which the plaintiff gave evidence; the storage of olive tins under the serving area to the right hand side; and many other issues that accord with and are consistent with the evidence given by the plaintiff.

95. Mr Angelidis attested to the fact that he would not have and did not single out the plaintiff in front of the team to praise her work as an example of management material. He also denied promising the plaintiff a managerial position in the Bondi store. Neither matter is of great relevance in the proceedings.

96. I consider Mr Angelidis and the plaintiff were each honest, truthful and generally reliable witness. He was open and honest about his lack of recollection about matters of detail, as would be expected.

97. He attested to the fact that the plaintiff was employed as a casual shop assistant, but admitted that he could not be certain as to her status as casual or full time. He did, accurately, recall that the plaintiff had been employed only for a number of months.

98. Mr Angelidis does not dispute that the plaintiff attempted to lift the drum of olives and bring them out from under the counter, where they were stored, or some of them were stored. His view was such conduct was contrary to instructions that he had given to managers and expected the managers to pass on to workers.

99. Mr Angelidis recalls a specific instruction and training to all female shop assistants not to attempt to lift the drums of olives, as this, according to Mr Angelidis, was the manager’s job. The plaintiff gave evidence as to the attempt to have the manager lift the tins of olives. Further, it may be that, because of the short duration of time during which the plaintiff worked at Norton Street Grocer, more senior instruction from Mr Angelidis or a person who was a line supervisor to the manager, Tony, may not have filtered through to the plaintiff.

100. I accept that the plaintiff considered, once she had been told it was her job, that, if she did not wish to put her job in jeopardy, she was required to lift the tin.

101. Mr Angelidis was unable to comment in detail on the pay records and their accuracy. Nevertheless, Mr Angelidis was not prepared to accept that there were inaccuracies in the pay records. That non-acceptance was based upon his own pay records at the time, which, given that he held the senior position that he did, may have been in a different category to that of shop assistants, particularly newly employed shop assistants.

102. Notwithstanding the foregoing, he was fairly confident that an amount of $1000 per week after tax would not have been paid to a shop assistant in 2003.

103. In examination in chief, Mr Angelidis recalled that the counter at the Leichardt store was 10 to 12 m long and 1 to 1.2 m deep with a straight-edged glass top. The olives were stored underneath the counter on the right-hand side; some were also stored in the kitchen. The olives were in tins. The kind of olives was the subject of some cross examination, seemingly relevant to whether that altered the weight of the olive tin.

104. Mr Angelidis was fairly confident that the olive tins had a handle on top and weighed approximately 13 kg. He accepted that there were a variety of tins for different olive varieties, but they were generally 13 kg and no tins weighed more than 20 kg.

105. There was evidence that suggested that the plaintiff had said to one or other medical practitioners that the tins weighed between 20 and 25 kg. However, I do not consider that discrepancy material. Plainly, the plaintiff was estimating the weight, then and now. The foregoing assumes that the medical practitioner has correctly recorded that which the plaintiff has said.

106. Mr Angelidis recalled that, in relation to those tins that were stored under the counter, access to the tins was obtained by reaching underneath, probably on one’s knees and pulling the tins out. There was a “pelmet”, which Mr Angelidis explained was concrete and fully tiled and set on top of the whole counter. The pelmet was like a step which was about 4 inches high through the front of the counter.

107. In cross-examination, he accepted that the store in Leichardt was a busy, successful delicatessen. They employed approximately 40 staff on the payroll in Leichardt. Norton Street Grocer was a well-known and quite famous high-class, large grocery store.

108. Mr Angelidis was unaware as to whether casual staff were paid superannuation, which was not a requirement of any award, determination or legislation. The fact, which is evidenced in the document, that the plaintiff was paid superannuation payments tends to suggest that she was in a category that was not as a casual shop assistant. Mr Angelidis was unaware of the hours that the plaintiff worked.

109. As to the instruction not to the lift olive tins, Mr Angelidis gave evidence that he addressed the team when people started the job as part of an induction process. The instruction, he recalls, was usually given at that point in time.

110. However, there is no direct evidence that the plaintiff was inducted in the same way as other staff, particularly in light of the fact that she was employed “off the street”, rather than in answer to an advertisement. Generally, however, it was the male manager of the shop that removed the olives from underneath the display cabinet.

111. The hours of the delicatessen at Leichardt were usually that they opened at 8 AM and closed at 6 PM or 7 PM on Monday to Wednesday; open until 7 PM or 8 PM on Thursdays; and closed at 5 PM on Saturdays and Sundays, until such time as they began closing at 6 PM on those days. Mr Angelidis did recall Tony being one of the managers.

112. The olives were stored in various places. They were delivered in pallets and the containers or tins came in different sizes and were made of different materials. Mr Angelidis considered that a 20 kg tin would not fit under the counter and said that his recollection was the heaviest tin was approximately 13 kg.

90. Mr Angelidis described the benchtop as waist high and considered that the clearance from the top of the tin to the bottom of the counter was approximately 10 to 15 cm. In cross-examination, it became clear that a 20 kg tin or drum, of the size described by the plaintiff, would have fitted under the counter.

91. Mr Angelidis did not recall speaking directly to the plaintiff about the procedure in place for lifting olives and accepted that he expected the instructions he gave to managers to be passed on from those managers. He did recall giving some people instructions individually.

92. Importantly, Mr Angelidis accepted, and accepts, that the instructions he gave on the lifting of the olive tins were given because he understood that lifting tins, even those of 13 kg, in that position, posed a risk of back injury and that, particularly because of the awkward position, lifting in that awkward position gave rise to a greater risk of injury.

93. Mr Angelidis referred to the fact that generally staff slid the tins out of the cupboard. The difficulty with that description is that Mr Angelidis did not, himself, remove the olives from under the counter.

94. In order to slide a tin across the floor under the counter, as was described, it would be necessary to relieve some of the downward pressure of the tin onto the floor, in order to slide it. The level of force required would depend on what part of the tin was moved, whether one side of the bottom of the tin remained on the floor and a number of other factors which are not in evidence. Even sliding a tin requires a lifting motion, otherwise the tin would tip over.

95. I accept that in order to slide the tins of olives out of the cupboard, as described, a lifting action upwards to take some of the weight, if not all of the weight, of the olive tins was required. There was more than one row of olive tins under the counter.

96. As a consequence, it was necessary to reach into the storage area to bring the olive tins to the service area. Ultimately, Mr Angelidis accepted that if there were a 10 cm drop over the pelmet or step, then, if one did not pick up the olive tin, it would fall over.

97. There were other storage spaces at the Leichardt store for non-refrigerated goods. There may have been other available spaces in which the olives could have been stored. This is a matter that goes to the details of the capacity of the store easily to organise alternate arrangements to that which was in place when the injury occurred.

98. Lastly, the hours of the staff varied considerably. For the store to open at 8 AM, as indicated by Mr Angelidis, some staff will arrive at 7 AM. The store became busier later in the day and other staff would arrive at 10 AM. The commencing time of the staff did not necessarily indicate that that staff finished earlier or later or worked shorter or longer hours.

99. It is no criticism of Mr Angelidis or Norton Street Grocer that the store was essentially a small business run efficiently with generally informal arrangements for the performance of work.

Other evidence

123. Other than the foregoing, the material for the Court is documentary. There was no cross-examination on medical reports or the medical evidence. Apart from those matters, the documentary evidence included award wages, medical reports and the like.

124. As to the weight of the olive tins, it should be noted that the Employee’s Report of Injury, to which earlier reference has been made, [8] describes the incident as the occurrence of back pain “after lifting approximately 15 kg weight”. [9] This accords with the general recollection of Mr Angelidis and I accept that the weight of the olive tins was somewhere around 13 kg – 15 kg.

     8. Court Book p 110 (Employee’s Report of Injury).

     9. Court Book p 112 (Employee’s Report of Injury).

Medical Evidence

125. There was no cross-examination on the medical reports. The medical evidence is relatively uncontroversial.

126. Leaving aside the personal issues associated with the untimely passing of the plaintiff’s daughter and the disability suffered by the other, the plaintiff was a person who sought and obtained employment and, personally, suffered no physical incapacity associated with work, until the accident of 28 December 2003. As also already stated, the plaintiff was able to continue working for the remainder of that shift, albeit with some difficulty, but was unable to work thereafter.

127. I have already outlined her attendance on general practitioners, one referred by her employer and the other her own general practitioner. Dr Tringali, the plaintiff’s own general practitioner, certified her as unfit on 29 December 2003 and referred the plaintiff to a neurosurgeon. The plaintiff completed the Employee Report of Injury, to which earlier references been made, along with Maria Clarke, the Bookkeeper/pay staff person at Norton Street grocer. This is the document which refers to the 48 hours per week, to which earlier reference has been made.

128. On 30 January 2004, the plaintiff consulted the neurosurgeon, Dr McGee-Collett and by mid-2004 the plaintiff had developed symptoms of secondary psychological injury. The plaintiff commenced treatment with a psychologist at about that time.

129. The plaintiff changed general practitioners and attended on Dr Howlett, with whom she has continued since that time. This has already been the subject of comment in these reasons, but this change occurred in about late 2004.

130. Further, the plaintiff commenced treatment with a psychiatrist in respect of the anxiety and depression, said to be caused as secondary symptoms to the back injury. This occurred in March 2007.

131. As already explained, the plaintiff started experiencing falls associated with the sudden onset of pain in her lower back and legs. This occurred in 2009 and the plaintiff, in late 2009, was referred to Dr Aggarwall, a pain specialist. The plaintiff completed a low intensity pain management program at RPA Hospital in 2011. Notwithstanding the treatment, the plaintiff began experiencing incontinence and urinary and bowel issues associated with the back pain from which she was suffering.

132. On 18 July 2013, the plaintiff was involved in a fall in a car park, to which earlier reference has been made, as a result of the previously mentioned sudden exacerbation of pain in her lower back and legs. As a consequence of that fall, the plaintiff suffered injuries to her shoulder and arm, left leg and aggravated back and neck injuries. The injuries to her back and neck, other than the original injuries, have resolved.

133. In summary, without needing to extract large sections of the medical reports, the orthopaedic specialists have expressed a consensus view that the plaintiff is unfit for work and that her injuries and incapacity relate to the injury suffered on 28 December 2003. Further, the orthopaedic surgeons expressed the view that the prognosis is that this pain and incapacity will continue indefinitely into the future. I refer in particular to the reports of Dr Vote, of 4 September 2017, qualified by the plaintiff, and of Dr Pillemer, whose reports of 15 February 2017 and 10 December 2018 are before the Court, were originally qualified by the defendant and ultimately were relied upon by the plaintiff.

134. Over and above the back injury, the psychiatrist, Dr Dinnen, in his report of 20 September 2007, expressed the view that the psychiatric condition was secondary to the physical injury and was such that she would be, on account of the psychiatric injury, totally unfit for work. This was confirmed in a report by Consultant Psychiatrist, Associate Prof Robertson of 19 November 2019.

135. Dr Anthony Greenberg, in his report of 29 August 2017, takes the view that the medication upon which the plaintiff depended had induced gastrointestinal motility disorder, resulting in a variety of debilitating symptoms. Further, the urologist, Dr Maher, in a report of October 2017, has described intermittent urinary incontinence as a feature secondary to the back injury.

136. The medical treatment of the plaintiff has been significant. There is no real issue that the plaintiff is practically incapable of working and has been since the injury occurred.

Liability

137. The plaintiff was assessed in accordance with the Workers Compensation Guidelines and the Approved Medical Specialist certified the degree of WPI as 15%. That occurred on 2 May 2018. On 29 January 2009 the appeal panel at the Commission issued its determination and statement of reasons.

138. In accordance with the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (“the 1998 Act”), there can be only one WPI assessed and certified. A number of previous WPI assessments had been made dealing, from time to time, with separate and different symptoms and/or impairments.

139. The reasons of the appeal panel, issued in accordance s 294 of the 1998 Act, referred to previous assessments and noted a 10% permanent impairment resulting from the injury to the lumbar spine and urinary and reproductive systems. The reasons also noted the certificate of determination dated 19 February 2018 certifying a further 5% permanent impairment resulting from the injury to the cervical spine on 28 December 2003.

140. The appeal panel combined the values in accordance with the Guidelines and AMA 5, which resulted in a total permanent impairment from injury on 28 December 2003 of 15%. Irrelevant to present purposes, the plaintiff was awarded further s 66 lump-sum compensation pursuant to the 1987 Act.

141. Nevertheless, the ultimate effect of the certificate of determination is that the plaintiff has been certified as having a 15% WPI and, as a consequence, meets the minimum threshold specified by s 151H of the 1987 Act. This assessment pays no regard to the impairment that resulted from the secondary psychological injury, but, the threshold having been passed, that psychological injury is compensable in the damages.

142. As to liability, there is an expert liability report. [10] Mr Adams was not the subject of cross-examination and the findings in the report are uncontroversial and well known to anyone who has had any experience in workplace injuries.

     10. Report of Dr Neal Adams, Exhibit CB 1, p 56.

143. Essentially, Mr Adams is an ergonomist and safety management consultant with a Bachelor and Master’s degree and an expert in the safety of lifting and the like. The report includes annexures dealing with safe methods of lifting and he opines as to the well-known effect of lifting a weight while extended under a counter or while kneeling with one’s back extended.

144. He remarks that the relationship between heavy, awkward and/or repetitive manual handling, especially lifting, and musculoskeletal injury are well-established and have been the subject of a considerable amount of publicly available information. [11] Mr Adams also refers to preventative actions available to Norton Street Grocer.

     11. Exhibit CB 1, p 66.

145. I accept the report of Mr Adams and, in particular, accepting as I do that the plaintiff sustained a lower back injury as a consequence of the incident at work that has been described, the injury was caused by the significant levels of force associated with the adverse postures and rapid movements involved in the task that she performed in lifting the olive tin. This is the only substantial cause of the injuries.

146. Further, as was admitted by Mr Angelidis, the employer was well aware of the dangers associated with lifting the olive tins, assuming, for present purposes, as I have found, that the tins were approximately 13 kgs – 15 kgs in weight. The injury was plainly foreseeable.

147. Because the issue of damages is dealt with pursuant to the terms of the 1987 Act, the provisions of the Civil Liability Act 2002 (NSW) do not apply to the assessment of damage. Nevertheless, the Court notes the following somewhat trite propositions, given the findings already made.

148. First, as already stated, the injury was caused by the conduct in lifting, from an awkward position, a weight of 13 kg or thereabouts. The occurrence of such injury is foreseeable and was, at the time, foreseeable. Further, it was foreseen by persons in a management position. The risk was not insignificant and, if there were reasonable alternatives available, a reasonable person in the plaintiff’s position would have taken those precautions.

149. As stated, the employer knew of the risk and, if the employer did not, the employer ought to have known of the risk. The risk was one of serious harm which has been occasioned. There are a number of alternatives that could have prevented this injury.

150. First, the employer could have prevented the employees removing such items without the assistance of another. Secondly, there were storage areas for the tins that could have been utilised which would not involve the awkward posture and positioning that was causative of the harm that was suffered.

151. It is fair to say that were the removal of the olive tins to be performed other than by a smaller, in this case female, staff, it may have been less risky, but it would not have been without risk, if it were performed without assistance. Nevertheless, the evidence before the Court is that the plaintiff asked for assistance. I accept that evidence.

152. There is no evidence that the plaintiff was told, in the short time that she had worked prior to the accident, not to lift the olives and leave it for the manager. There is evidence, which I accept, that she asked the manager to perform the work and/or to assist her in performing the work, which request was denied. In those circumstances, the negligence of the employer is established; the negligence occasioned the injury; and damages flow.

153. Against that proposition, the defendant raises issues of contributory negligence. It should be noted that, were it not for the refusal of the manager to assist or to perform the work, the plaintiff would not have performed the work. Further, were the storage of the olives to have been located in such a way that the awkwardness of the lifting and sliding process did not exist, it is much less likely that any jury would have occurred.

154. Nevertheless, the plaintiff, candidly and truthfully, accepted that she was aware of the risk associated with lifting heavy items from an awkward position. She had advised others, in previous employment, in relation to such aspects.

155. As a matter of practicality, an employee, particularly a new employee as was the plaintiff, is in a difficult position when it is necessary, in order for work to be performed, for tasks to occur, which the employee may know are risky. There are significant economic and social pressures on the employee to undertake that risk, notwithstanding the employee’s better knowledge.

156. The plaintiff was aware of the risk and ought to have taken appropriate care to ensure her own safety. At worst, the non-performance of the task, which caused the injury, would have resulted in olives not being available at some later time, because they had not been marinated. At that point, no doubt, steps could have been taken to overcome the issue.

157. In the foregoing statements, it may be clear that, in my view, there is a degree of contributory negligence by the plaintiff in performing the task, which she knew to be risky. The task the Court is then required to undertake is to determine an appropriate and equitable apportionment between the risks and the responsibility for the injury.

158. The negligence of the employer rests upon two fundamental issues. First, the system of work that was in place, including the location of the heavy tins, was such that there was not a safe system of work available, at least for the class of employee to which the plaintiff belonged. Secondly, the direction to perform the task in the manner it was performed was, itself, negligent. It may be that the two classes coalesce.

159. The classic explanation of the manner in which the Court determines contribution is derived from the comment by the High Court, where it said:

“[10]    The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, i.e. of the degree of departure from the standard of care of the reasonable man (sic) and of the relative importance of the acts of the parties in causing the damage. … It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case; for example, the circumstances of some cases may be such that a comparison of the relative importance of the acts of the parties in causing the damage will be of little, if any, importance.”[12]

12. Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492 at 494; [1985] HCA 34 at [10].

160. As the High Court said, in Podrebersek, the question to be determined is not a question of principle, nor of positive findings of fact or law. It is a question of proportion. It is a question of balance and relative emphasis and of weighing different considerations, which involves an individual choice or discretion as to which there may well be differences of opinion by different minds. [13]

     13. Podrebersek, supra, at ALJR 493-494 and [1985] HCA at [8], citing, with approval, British Fame (Owners) v Macgregor (Owners) [1943] AC 197 at 201.

161. It seems that the clear direction from the employer, or its manager, together with the subtle pressures on a new employee are relevant in determining the degree to which the plaintiff has departed from the standard of care of a reasonable person looking after her own safety. It is necessary, in dealing with the apportionment as between primary liability and contributory negligence, to assess the comparative culpability, being the degree to which each of the plaintiff and/or the employer has departed from the standard of care of a reasonable person and the relative importance of the acts departing from that standard in causing the damage.

162. Bearing in mind all the circumstances and determining that which is just and appropriate, bearing in mind the principles recited above from the classic comment by the High Court, I would determine that the appropriate assessment of contributory negligence requires an apportionment to the plaintiff of 7 ½ percent of the total damage.

163. In making that assessment, I have taken into account, as stated, the conduct of each of the employer and the plaintiff, as regards to circumstances of the incident. I have also, if it be different, determined that to be “just and equitable”, having regard to the plaintiff’s share and responsibility for the damage. [14] The apportionment needs some further explanation.

     14. Council of the City of Greater Taree v Wells (2010) 174 LGERA 208; [2010] NSWCA 147, per Basten JA at [107].

Damages Apportionment

164. The legal principles as to liability and damages was summarised, uncontentiously, by the plaintiff in her written submissions. [15] Referring to the comment of Basten JA in DIB Group Pty Ltd t/as Hill & Co v Cole,[16] the plaintiff’s submission recites the following extract:

     15. Plaintiff Written Submissions commencing at [51].

     16. DIB Group Pty Ltd t/as Hill & Co v Cole (2009) Aust Torts Reports 82–022; [2009] NSWCA 210.

“Duty of employer – legal principles

[24]   The civil liability of the employer for injury to a worker would give rise to an award of damages to which Pt 5 Div. 3 of the Workers Compensation Act 1987 (NSW) applied: s 151E(1). Accordingly, the Civil Liability Act did not apply: Civil Liability Act, s 3B(1)(f). The principles to be applied in determining the liability of an employer to its employee in negligence depended upon the general law, unaffected by statute.

[25]   The authorities, including those discussed below, suggest that matters relevant to the scope of an employer’s duty to take reasonable care for the safety of its employee can often be identified by reference to the following questions:

(1)    Did the circumstances which gave rise to the employee’s injury require some antecedent conduct on the part of the employer which was not taken?

(2)    If so, did the conduct fall within the scope of the obligation –

(a)    to provide proper and adequate plant and equipment;

(b)    to engage reasonably competent workers or contractors, and

(c)    to provide a reasonably safe system of work?

(3)    If so, and the circumstances were within the immediate control of the employer, did the employer fulfil those requirements, either itself, or through its employees, agents or contractors?

(4)    If the circumstances were not within the immediate control of the employer, did the employer take such steps as were reasonable in all the circumstances, to provide reasonable protection to its employees?”

165. In Andar Transport Pty Ltd v Brambles Ltd,[17] the High Court said:

“[34]    It is well accepted that, in the absence of statutory provisions to the contrary, an employer owes a common law duty to its employees to take reasonable care for their safety. The duty encompasses an obligation to take reasonable steps to provide safe plant and machinery and a safe system of work. Of particular significance in the present case are two features of the duty. The first is its non‑delegability. In Kondis v State Transport Authority, Deane J said:

‘[I]n the context of the particular relationship of employer and employee and of the undertaking by the employee of the general obligation to work in the interests of the employer, the content of the employer’s duty to take reasonable care to provide a safe system and conditions of work for the employee is not discharged by delegation unless the delegate, be he employee or independent contractor, in fact provides the reasonable care which the employer was under an obligation to bring to bear.’” (Footnotes omitted)

17. Andar Transport Pty Ltd v Brambles Ltd (2004) 217 CLR 424; [2004] HCA 28.

166. The duty owed by an employer to an employee is non-delegable and the employer has the exclusive responsibility for the safety of the system of work that is implemented and to which the employer subjects an employee. In another context, the Court, as presently constituted, has noted that:

“[91]    … fundamental to the existence of a contract of employment, and one of its indicia, is that an employee (the modern terminology for servant) contracts away absolute freedom to the employer. The employee contracts to devolve to the employer the right to control the manner in which the employee shall work. Lord Wedderburn in The Worker and the Law, 3rd Edition, 1986, Penguin, cited in Employee Protection at Common Law, Associate Professor Joellen Riley, Federation Press, 2005, at 49, said:

‘Here then is an ancient tension in the system. For the common law assumes it is dealing with a contract made between equals, but in reality, save in exceptional circumstances, the individual worker brings no equality of bargaining power to the labour market and to this transaction central to his life whereby the employer buys his labour power. This individual relationship, in its inception, “is an act of submission, in its operation it is a condition of subordination, however much the submission and the subordination may be concealed by that indispensable figment of the legal mind known as the contract of employment”.’ (Wedderburn, op. cit., at 5, quoting Sir Otto Kahn-Freund, Blackstone’s Neglected Child: the Contract of Employment , 93 Law Quarterly Review 503).

[92]    Whether or not there is an equality of bargaining power between employer and employee is irrelevant for any purpose currently before the Court. Whether or not there is an equality of bargaining power, on entering a contract of employment, there is submission by the employee to the employer within the terms of that contract, and in performing work under the contract of employment there is subordination to the will of the employer to the extent of the terms of that contract. That is the essence of and the effect of the right of control.”[18]

18. Russell v The Trustees of the Roman Catholic Church for the Archdiocese of Sydney (2008) 72 NSWLR 559; [2008] NSWCA 217 at [91] and the discussion thereafter through to [94].

167. In the context of personal injury damages for workplace injuries, the High Court summarised the situation in the following words:

“The employer has the exclusive responsibility for the safety of the appliances, the premises and the system of work to which he (sic) subjects his employee and the employee has no choice but to accept and rely on the employer’s provision and judgment in relation to these matters [with the] consequence …. in these relevant respects the employee’s safety is in the hands of the employer; … if [the employer] requires his employee to work according to an unsafe system he should bear the consequences.”[19]

19. Kondis v State Transport Authority (1984) 154 CLR 672 at 687-688 (Mason J); [1984] HCA 61, cited with approval by McColl JA, with whom Mason P and Beazley JA (agreed) in Pollard v Baulderstone Hornibrook Engineering Pty Ltd (2008) Aust Torts Reports ¶81–949; [2008] NSWCA 99 at [33]. See also New South Wales v Lepore (2003) 212 CLR 511; [2003] HCA 4.

168. As pointed out in the passage from Pollard, once the employer is subject to a non-delegable duty, it cannot be escaped, or liability arising from it cannot be escaped, by being delegated and then not properly performed. To the extent that the evidence suggests, as it does, that the manager and/or director of Norton Street Grocer instructed lower managers to instruct female employees not to lift the tins, the evidence is that this instruction was not relayed, not implemented, and the evidence that the Court accepts is that a request for such assistance was refused. In those circumstances the major, if not total, liability must rest with the employer.

Damages

169. As already stated, I have determined that the plaintiff worked 48 hours per week. The evidence indicates that within those 48 hours, there was a lunch break of 45 minutes each day. This makes ordinary average working hours for the plaintiff as 45 hours per week (4 days at 12 hours per day, less 4×45 minute lunch break).

170. The effect of s 151G of the 1987 Act is that the Court is capable of awarding damages only for past economic loss “due to loss of earnings” and damages for future economic loss due to the deprivation or impairment of earning capacity. General non-economic damages are awarded pursuant to other provisions of the Act and have been awarded already.

171. The plaintiff’s oral evidence is that she earned $1000 per week net, on average. This, it was said in evidence, was her average earnings for the period that she was paid up to and including 28 December 2003, the date of the accident. There is some dispute as to those earnings.

172. Mr Angelidis makes clear that a sales assistant would not have earnt that much. However, Mr Angelidis accepted that he was not taking into account the hours that may have been worked by particular sales assistants and, in particular, the plaintiff.

173. I accept, given the plaintiff’s personal circumstances to which reference has already been made, including the necessity to support a disabled child and her excellent working history with gaps only in relation to the saddest of circumstances, the plaintiff would be seeking to maintain full-time employment, if not more than full-time employment, and would be seeking the highest paid position available to her. It is also clear that she enjoyed and was good at her work at Norton Street Grocer and I accept she would have continued working there, probably with an increase in position, but that is not certain. It is more probable than not.

174. The plaintiff’s schedule of damages is particularly calculated on the basis of average weekly earnings until retirement age. Given the age of the plaintiff, there are not many years left in the working life of the plaintiff beyond the hearing. The retirement age is 67 years of age.

175. Leaving aside for present purposes the issue of whether average weekly earnings is an appropriate basis upon which to calculate past loss of earnings, even if it were an appropriate basis to calculate future deprivation or impairment of earning capacity, there are a number of other bases upon which the plaintiff’s likely, or more probable, earnings can be ascertained.

176. An average working week of 45 working hours, necessarily involves overtime. The industrial instrument governing wages for sales assistants in this industry is before the Court. [20]

     20. Exhibit A (Shop Employees (State) Award).

177. I have now said and reiterate that I find that the normal working hours completed by the plaintiff in the period that she worked, and the most probable usual working hours that would be completed on average were 48 per week, worked in four days of 12 hour shifts.

178. The defendant submits that the gross weekly award rate for the period (the mean rate) is $660.20, but that assumes that it was only the award rate that was paid, which is not the evidence before the Court. Further, it assumes no overtime or shift rate penalties.

179. The industrial instrument provides for overtime to be paid at 1½ times the ordinary rate of pay for the first three hours of overtime and twice the ordinary rate of pay for any further hours. Given that the ordinary hours under the instrument amount to 38 hours per week, there are to be paid a further 7 hours of overtime which would have equated to a further 12½ hours ordinary pay.

180. If the ordinary hours of work are 38 hours per week and the mean award wage is $660 per week, as calculated by the defendant, the overtime payable would be approximately $217.10 per week, bringing the overall weekly salary to $877.10 per week. There are necessary inaccuracies or estimations in the foregoing calculation.

181. Further, it takes no account for the penalties for working Sunday, which is the evidence before the Court. I accept, in that respect, the calculation of the plaintiff that the calculation of wages, including overtime and Sunday penalties would amount to gross wages is $1033.73.

182. Given the view I formed as to the honesty of both Mr Angelidis and the plaintiff, this calculation is one which generally accords with the evidence from each of them. That is, the net salary would not be as high as $1000 a week, but the gross salary was and the net salary, on $1033.73, would be $875 net per week.

183. Past loss of earnings must be calculated at the time the judgment issues. The weeks lost from 28 December 2003 until 22 February 2021 is 895 weeks and 1 day. As a consequence, past loss of earnings, on the foregoing calculations, equates to $783,125.

184. The plaintiff in its alternate calculation, not utilising the average weekly earnings, has engaged, unconsciously, in some double counting. It seems that the overtime, or some of it, has been taken into account twice. The earnings lost between 28 December 2003 and 28 February 2021 are $783,125

185. There is a Fox v Wood [21] claim, the amount of which is agreed, and that is for $15,550.

     21. (1981) 148 CLR 438; [1981] HCA 41.

186. Retirement age is reached at age 67. [22] As at 22 February 2021, the plaintiff has six years of her working life remaining. [23] Given the increase in the rate of pay in the instrument, I accept that the plaintiff would have earned $1120 net per week for the period commencing 28 February 2021. Given her ordinary working hours, this would calculate as an average rate per week, after tax, as at 22 February 2021 of $1,328. The multiplier for the 6 years remaining, at a 5% discount for current sum of $1 per week is 271.4, assuming a 5% discount rate, as is conventional.

     22. Workers Compensation Act 1987 (NSW) s 151IA.

     23. There is a 3 working day discrepancy, which is ignored.

187. On the basis of the foregoing, the calculation of future economic loss from 22 February 2021 is $360,419.20. Added to the foregoing calculation of damages, damage must be awarded for past loss of superannuation and future loss of superannuation.

188. Further, the future loss of earnings must be discounted by 15% to take account of the vicissitudes. The future loss of income, discounting the amount by 15% for vicissitudes, would amount to $306,356.32. The past loss of superannuation is calculated as 11% of $783,125 an amount of $86,143.75 and future loss of superannuation is calculated as 12.92% of the future losses, which amounts to $39,581.25.

189. Over and above of all the foregoing all of the losses must be reduced by the amount of contributory negligence determined by the Court. The total damages are assessed at $1,230,756.32 and I have assessed the contributory negligence at 7½ % by which figure I reduce the entirety of the damages. The plaintiff will be awarded $1,138,449.60.

190. For the foregoing reasons the Court makes the following orders:

1. Judgment for the plaintiff against the defendant;

2. The defendant shall pay the plaintiff damages in the sum of $1,138,449.60;

3. Pursuant to the terms of s 101 of the Civil Procedure Act 2005 (NSW), interest will be paid at the prescribed rate in accordance with the rules;

4. The defendant shall pay the plaintiff’s costs of and incidental to the proceedings;

5. Leave is granted to each party to address the Court on any calculation error; or misstatement of multiplier; any need to repay or to specify repayment of any sum; the form of the orders; and on any special or different order as to costs. Such application shall be made within 2 working days of the date of judgment, by email, accompanied by a short submission in writing, to the extent so advised, of no more than five pages, not including any evidentiary material relating to any offer that may or may not have been made and may be the subject a response within a further 3 working days by any party affected by any such application or submission;

6. Otherwise proceedings are dismissed.

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Endnotes

Amendments

22 February 2021 - Typographical error corrected in Order (5).

Decision last updated: 22 February 2021