Glynn v Challenge Recruitment Australia Pty Ltd

[2006] NSWCA 203

New South Wales

Court of Appeal

CITATION:	Glynn v Challenge Recruitment Australia Pty Ltd [2006] NSWCA 203
HEARING DATE(S):	13 June 2006
JUDGMENT DATE:	2 August 2006
JUDGMENT OF:	Beazley JA at 1; Giles JA at 2; McColl JA at 92
DECISION:	(1) Direct the parties to deliver to the Associate to Beazley JA within 7 days short minutes to give effect to these reasons; (2) Liberty to apply in the event of disagreement, in the first instance by letter sent to the Associate to Beazley JA.
CATCHWORDS:	Personal injury - joint tortfeasors - apportionment between them - whether s 151Z of Workers Compensation Act means proportionate liability to plaintiff - labour hire organisation - duty of care when employee injured by unsafe working conditions - breach of non-delegable duty of care - and of direct duty in failing to instruct - challenges to assessment of damages. D
LEGISLATION CITED:	Law Reform (Miscellaneous Provisions) Act 1946; Workers Compensation Act 1987.
CASES CITED:	Atkinson v Gameco (NSW) Pty Ltd [2005] NSWCA 338; Barisic v Devenport (1978) 2 NSWLR 111; Baxter v Obacelo Pty Ltd (2001) 205 CLR 635; Bourke v Victorian Work Cover Authority (1999) 1 VR 189; DNM Mining Pty Ltd v Barwick [2004] NSWCA 137; Drake Personnel Ltd v Work Cover Authority of NSW (1999) 90 IR 432; Forstaff Blacktown Pty Ltd v Brimac Pty Ltd [2005] NSWCA 423; Gordian Runoff Ltd v Heyday Group Pty Ltd [2005] NSWCA 29; Grljak v Trivan Pty Ltd (1994) 35 NSWLR 82; Grljak v Trivan Pty Ltd (No 2) (CA, 19 April 1996, unreported); Leighton Contractors Pty Ltd v Smith [2000] NSWCA 55; Leonard v Smith (1992) 27 NSWLR 5; Lewis v G H Varley Pty Ltd (Grove J, 18 October 1996, unreported); Multiplex Constructions pty Ltd v Irving [2004] NSWCA 346; Oxley County Council v MacDonald [1999] NSWCA 126; Sadler v Great Western Railway Co (1896) AC 450; Speirs v Caledonian Collieries Ltd (1957) SR (NSW) 483; State of New South Wales v Kennelly (No 2) [2001] NSWCA 472; Timberland Property Holdings Pty Ltd v Bundy [2005] NSWCA 419; TNT Australia Pty Ltd v Christie [2003] NSWCA 47.
PARTIES:	Arrol Glynn - Appellant Challenge Recruitment Australia Pty Ltd - Respondent
FILE NUMBER(S):	CA 40704/05
COUNSEL:	L King SC & F Curren - Appellant J McIntyre SC & J L Sharpe - Respondent
SOLICITORS:	Carters Law Firm - Appellant Vandervords Solicitors - Respondent
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 10964/01
LOWER COURT JUDICIAL OFFICER:	Murray ADCJ
LOWER COURT DATE OF DECISION:	29 April 2005
LOWER COURT MEDIUM NEUTRAL CITATION:	Murray ADCJ, 29 April 2005, unreported

CA 40704/05
DC 10964/01

BEAZLEY JA
GILES JA
McCOLL JA

Wednesday 2 August 2006

GLYNN v CHALLENGE RECRUITMENT AUSTRALIA PTY LTD

Judgment

1 BEAZLEY JA: I agree with Giles JA.

2 GILES JA: The plaintiff/appellant was employed by the defendant/respondent, a labour hire organisation. His labour was hired to Concrete Demolition Contractors Pty Ltd (“Concrete”). When cleaning up at a disused warehouse at Campbelltown, he was injured because a ladder on which he was standing was not properly secured. He brought proceedings against the defendant and Concrete, claiming damages for his injury.

3 Concrete was in liquidation, leave to proceed against it was necessary and had not been obtained, and the plaintiff discontinued against Concrete. The proceedings continued against the defendant.

4 Murray ADCJ held that the plaintiff’s injury was caused by the defendant’s negligence and the defendant was liable in damages to the plaintiff. He held that the plaintiff had not been contributorily negligent. He assessed the plaintiff’s modified common law damages, in accordance with Division 3 of Part 5 of the Workers Compensation Act 1987 (“the Act”), at $531,742.

5 His Honour considered, however, that s 151Z(2) of the Act as given effect in Gordian Runoff Ltd v Heyday Group Pty Ltd [2005] NSWCA 29 meant that the defendant was liable only for the share of the modified common law damages for which it was responsible on a contributory apportionment between the defendant and Concrete in accordance with s 5 of the Law Reform (Miscellaneous Provisions) Act 1946 (“the LR Act”). He held that the injury had also been caused by negligence of Concrete, that there should be a 40:60 apportionment and that the plaintiff was entitled to judgment against the defendant only for $212,696. After deduction of workers compensation payments of $168,374.58, the plaintiff obtained judgment for $44,321.42.

6 The plaintiff appealed, contending that he was entitled to judgment against the defendant for the full $531,742. The defendant cross-appealed, contending that any negligence on its part had not caused the plaintiff’s injury, that the plaintiff had been contributorily negligent and that in a number of ways the assessment of damages was excessive.

The appeal

7 For reasons later given, I consider that the defendant was correctly held liable in damages to the plaintiff. It is convenient to deal first with the extent of the defendant’s liability, on the assumption of damages of $531,742.

8 The judge said -

“83. But for the effect of the decision in Gordian Runoff Ltd v Heyday Group Pty Ltd [2005] NSWCA 29 I would award the plaintiff the sum of $531,742.
THE EFFECT OF GORDIAN RUNOFF LTD v HEYDAY GROUP PTY LTD
84. The effect of the above decision is that where there is an employer and a non-employer tortfeasor (regardless of whether both or only one tortfeasor is sued by the worker), the only common law liability of the employer is its share of the worker’s modified common law damages for which the employer is responsible.
85. The decision requires that where (as here) the worker does not take action against the non-employer tortfeasor, section 151Z(2) of the Workers Compensation Act requires a determination of the contribution that the employer qua employer is required to make pursuant to section 5 of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW).”

9 His Honour went on to make the 40:60 apportionment, and said that “[t]he result of the abovementioned apportionment means that the Defendant is liable to the Plaintiff in the sum of $212,696”.

10 There was a basis in Gordian Runoff Ltd v Heyday Group Pty Ltd for the approach taken by the judge. It was, however, an incorrect approach, and what was said in Gordian Runoff Ltd v Heyday Group Pty Ltd providing the basis was in my respectful opinion incorrect. The defendant’s grounds of appeal included that the apportionment to it should have been not 40 per cent, but nil or a percentage approaching nil; on the correct approach, apportionment is not material and that ground need not be considered.

11 The defendant and Concrete were several concurrent tortfeasors. It is sufficient in law that a tortfeasor’s wrong materially contributed to the occurrence of the injury, and several concurrent tortfeasors are “independent tortfeasors whose separate acts combine to produce damage” (Baxter v Obacelo Pty Ltd (2001) 205 CLR 635 at [18] per Gleeson CJ and Callinan J). Each of the defendant and Concrete was a tortfeasor whose wrong materially contributed to, and in combination with the wrong of the other caused, the plaintiff’s injury.

12 At common law a plaintiff was entitled to separate judgments against each of the several concurrent tortfeasors for the full amount of the plaintiff’s damages. But for any effect of s 151Z(2), the plaintiff was entitled to judgment against the respondent for the full $531,742, and it was for the defendant to recover from Concrete any contribution to which it was entitled.

13 The modified common law damages regime of Division 3 of Part 5 of the Act governs the damages recoverable by a worker from the worker’s employer. By s 151Z(2), where a worker (the plaintiff) takes or is entitled to take proceedings to recover damages from a person other than the worker’s employer (Concrete), and also takes or is entitled to take proceedings to recover damages from that employer (the defendant), then -

“(c) the damages that may be recovered from the person by the worker in proceedings referred to in paragraph (a) are to be reduced by the amount by which the contribution which the person would (but for this Part) be entitled to recover from the employer as a joint tortfeasor or otherwise exceeds the amount of the contribution recoverable,

(d) the amount of the contribution that the person is entitled to recover from the employer as a joint tortfeasor or otherwise is to be determined as if the whole of the damages were assessed in accordance with provisions of Division 3 as to the award of damages,”

14 This brings a change, usually a reduction, in the damages recoverable by the worker from the non-employer, a reduction “to reflect the worker’s reduced rights against the employer”: Grljak v Trivan Pty Ltd (No 2) (CA, 19 April 1996, unreported) per Handley JA. It does not change the damages recoverable from the employer, and the worker remains entitled to recover from the employer damages assessed in accordance with Division 3 of Part 5 of the Act.

15 The damages recoverable from the employer and the non-employer as several concurrent tort feasors will not be the same in amount, but that would be the case apart from s 151Z(2) because the modified common law damages differ from common law damages. Nothing in s 151Z(2) reduces the damages recoverable from the employer to the contribution which the employer would be entitled to recover from the non-employer or the contribution the non-employer would not be entitled to recover from the employer. Indeed, s 151Z(2) does not reduce the damages recoverable from the non-employer (which is not the present case) to the contribution which the non-employer would be entitled to recover from the employer or the contribution which the employer would not be entitled to recover from the non-employer. The reduction is to the extent of a difference in recoverable contribution, see the application of s 151Z(2) described in Grljak v Trivan Pty Ltd (1994) 35 NSWLR 82 at 88 and State of New South Wales v Kennelly (No 2) [2001] NSWCA 472 at [26]; see also the discussion by McColl JA in Forstaff Blacktown Pty Ltd v Brimac Pty Ltd [2005] NSWCA 423.

16 In Leonard v Smith (1992) 27 NSWLR 5 Allen J undertook a seminal analysis of the operation of s 151Z(2). His Honour’s explanation included, at 8, that a plaintiff’s right -

“ … is treated not as a right to recover the full amount of damages from whichever tort feasor (or tort feasors) he chooses to sue but as if his right is to recover damages from each of the individual tort feasors sued (including the employer) in accordance with the degree of the responsibility of that tort feasor for the accident applied to the amount of the damages for which that tort feasor would be liable to the plaintiff if he alone had been responsible for the accident.”

17 As is apparent from the worked examples his Honour gave at 9-10, he did not mean that the plaintiff’s right was to recover only the respective contributory proportions. It may be, however, that these words in his Honour’s analysis, an analysis which was accepted in Grljak v Trivan Pty Ltd (No 2), caused the view sometimes to be taken that a plaintiff’s right was so limited. An example is Lewis v G H Varley Pty Ltd (Grove J, 18 October 1996, unreported), in which the parties agreed upon proportionate judgments; see also the judgments in Leighton Contractors Pty Ltd v Smith [2000] NSWCA 55 later mentioned.

18 Apart from Gordian Runoff Ltd v Heyday Group Pty Ltd, s 151Z(2) of the Act has not been held in this Court to have had the effect that there should be proportionate judgments. Quite the contrary.

19 In Oxley County Council v MacDonald [1999] NSWCA 126 the plaintiff claimed against his employer and a non-employer as several concurrent tortfeasors. The judge made an apportionment between them. Sheller JA, with whose reasons Priestley and Powell JJA agreed, recorded at [44] the submission that the judgments in favour of the plaintiff “should reflect the apportionment”, and reliance for the submission on Lewis v G H Varley Pty Ltd. His Honour said at [51] that nothing in the relevant parts of s 151Z “inhibits the Court from entering verdicts for the full amount of the damages payable by each of the first and second defendant”, and at [54] that neither the Act nor s 5 of the LR Act “require or allow any adjustment of the amount of damages that a plaintiff can recover from any tortfeasor by paying regard to the apportionment”.

20 In Leighton Contractors Pty Ltd v Smith Meagher JA took Allen J to have decided that a plaintiff’s damages were limited according to the contribution between the defendants, and said at [31] that that was erroneous and that s 151Z had not had the effect that “a basic principle of law is overthrown, viz that a plaintiff is entitled to one judgment in solidum against all joint tort feasors”. His Honour’s observations were obiter, and at [14] Mason P and Fitzgerald JA reserved their positions. There was a firm rejection by Meagher JA of proportionate judgments but, with respect, not for reasons with which I agree. First, I do not think that Allen J fell into the error in question. Secondly, at common law the liability of several concurrent tortfeasors was solidary, in that although there was a separate cause of action against each (Sadler v Great Western Railway Co (1896) AC 450 at 454; Baxter v Obacelo Pty Ltd at [19]) they were liable in the same amount (Speirs v Caledonian Collieries Ltd (1957) SR (NSW) 483 at 503, 511; Barisic v Devenport (1978) 2 NSWLR 111 at 139-40): but as I have explained, quite apart from s 151Z(2) there can not be one judgment in solidum to the extent that modified common law damages differ from common law damages and the judgments against the employer and the non-employer will be for different amounts. The principle is overthrown. But that means only that there are different judgments, and does not mean that there are proportionate judgments.

21 In Timberland Property Holdings Pty Ltd v Bundy [2005] NSWCA 419, decided after Gordian Runoff Ltd v Heyday Group Pty Ltd was decided and after the decision in the present case, the plaintiff obtained judgments against her employer and a non-employer as several concurrent tortfeasors. The judge came to a 30:70 apportionment between the defendants. The assessed damages were $105,549.59 as against the employer and $103,683.09 as against the non-employer; unusually, the employer’s damages were greater than the non-employer’s damages. The judgments were $23,747.62 as against the employer and $54,433.75 as against the non-employer, in each case less 25 per cent for contributory negligence and in the case of the employer less a further deduction for workers compensation payments. The judgments were arrived at in a manner not clear from the reasons, but reflecting the apportionment.

22 It was held that this was incorrect, and that the judgments should have been for the assessed amounts less the allowances for contributory negligence and the workers compensation payments. Basten JA, with whose reasons Handley JA and Hunt AJA agreed, said -

“55 At common law a plaintiff who recovered against several concurrent tortfeasors was entitled to several judgments against each for the full amount. This principle was not affected by s 2 of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) which authorised apportionment of liability between defendants: Speirs v Caledonian Collieries Ltd (1957) 57 SR (NSW) 483, 503, 512. Accordingly the plaintiff was still entitled, notwithstanding any apportionment, to judgment against each concurrent tortfeasor for the full amount. Apportionment was a matter between the defendants which did not concern the plaintiff.

56 As noted above, the premise underlying s 151Z is that the modification of common law damages effected by Part 5, Division 3 of the Workers Compensation Act means that, although there may be joint tortfeasors responsible for identical damage, the amount payable by an employer may not be the same as that payable by another tortfeasor. As a result, s 151S(1) of the Workers Compensation Act now provides:

‘(1) If a judgment is obtained for payment of damages to which this Division applies as well as for other damages, the court is required, as part of the judgment, to declare what portion of the sum awarded by the judgment is damages to which this Division applies.’

57 However, it is apparent that neither s 151Z, nor s 151S affected the principle that a plaintiff was entitled to a judgment against each tortfeasor, even though in different amounts reflecting the differing bases of calculation of liability. Apportionment remains a matter between the tortfeasors. Thus, in Oxley County Council v MacDonald [1999] NSWCA 126, Sheller JA, giving the principal judgment, held at [51] that neither s 151S nor s 151Z affected the common law rule:
‘In the relevant parts of s151Z there is nothing which inhibits the Court from entering verdicts for the full amount of the damages payable by each of the first and second defendant, as was done in this case. Nor do I think there is anything in s151S(1) which has this consequence’.”

23 I come then to Gordian Runoff Ltd v Heyday Group Pty Ltd. It appears that neither Oxley County Council v MacDonald nor Leighton Contractors Pty Ltd v Smith was cited to the Court deciding that case. Nor does it appear that Gordian Runoff Ltd v Heyday Group Pty Ltd was cited to the Court deciding Timberland Property Holdings Pty Ltd v Bundy.

24 In Gordian Runoff Ltd v Heyday Group Pty Ltd the plaintiff was injured when working for his employer at a construction site controlled by the non-employer. He recovered damages from the employer and the non-employer. The assessed damages were $900,853.04 as against the employer and $1,086,277.79 as against the non-employer. On a contribution claim by the non-employer against the employer the judge arrived at a 65:35 apportionment.

25 Tobias JA, with whose reasons Beazley and Santow JJA agreed, recorded at [12] that judgments were erroneously recorded against the employer for a sum representing 35 per cent of the $900,853.04 and against the non-employer for a sum representing 65 per cent of the $1,086,277.79. His Honour recorded at [6] that, with a qualification not presently relevant, it was agreed at the hearing of the appeal that the plaintiff was entitled to judgments against the employer for $902,744.64 (being the $900,853.04 later increased by agreement) and against the non employer for $789,563.20 (being the $1,086,277.79 later increased by agreement but then reduced because of the jurisdictional limit of the District Court). Thus there was no issue in the appeal as to proportionate judgments. Indeed, his Honour said at [13] -

“13 Subject to the impact of Division 3 of Part 5 of the Workers Compensation Act, 1987 (the 1987 Act) on the assessment of damages against Heyday as the plaintiff's employer and of s 151Z(2)(d) on the damages assessed against Baulderstone, the plaintiff was entitled to a separate judgment against each of Heyday and Baulderstone for the full amount of his damages as duly assessed against each. The amounts differed as the plaintiff was entitled only to modified common law damages against Heyday but subject only to any reduction pursuant to s 151Z(2)(c), to unlimited damages against Baulderstone. The rights of those parties as between themselves could only be determined by verdicts against each other on their respective cross-claims. In other words, there was no basis upon which the damages awarded in favour of the plaintiff against each of Heyday and Baulderstone could be severed and the rights of Heyday and Baulderstone inter se could only be determined in proceedings between them under the Law Reform Act . So much was acknowledged by the parties and resulted in the agreement referred to in [6] above.”

26 The issue on appeal was the employer’s recovery from its insurer. It was held that, on its true construction, the insurance policy was intended to cover only the common law liability of the employer “qua worker” (at [56]). It was said that -

“[53] … Heyday has been found liable to the plaintiff for $902,744.65 but is only responsible for 35% of that sum. GIO is liable to indemnify Heyday with respect thereto. To the extent that Heyday may pay the plaintiff the balance of 65% for which Baulderstone is responsible, it would be doing so not as a consequence of its common law liability to the plaintiff qua worker, but as a consequence of its contractual obligation to Baulderstone under the sub-contract. The GIO policy does not respond to that obligation.”

27 The resolution of the issue turned on the construction of the insurance policy. For the purposes of the policy, the employer was only “liable to pay … for any injury to” the plaintiff, within the relevant clause of the policy, to the extent of its 35 per cent responsibility under the apportionment, notwithstanding that the plaintiff was entitled to a 100 per cent judgment against it. This is clear from Tobias JA saying at [55] -

“The mere fact that the worker is entitled to enforce the judgment in the full amount against each of the employer and non-employer tortfeasors (where both are sued) cannot be allowed to extend the insurer's liability beyond that which, on its true construction, the policy is intended to cover, namely, the common law liability of the employer qua employer only.”

28 There is no occasion to comment on the correctness of the decision, and I go to Tobias JA’s observations on s 151Z(2) of the Act.

29 His Honour engaged with a passage in Multiplex Constructions Pty Ltd v Irving [2004] NSWCA 346, a decision which he had analysed earlier in his reasons, in which Ipp JA had said that each of the defendants was severally liable for the whole of the damage caused to the plaintiff, who was entitled to judgments against both for the full amount of his damages. Tobias JA said at [61] that the principle that judgment is given in solidum against joint and several tortfeasors must give way to any statutory provision to the contrary, and at [62] that the Act contains such provisions in that damages were “required to be assessed separately and differently with respect to employer and non-employer tortfeasors” and s 151Z(2)(d) provided for contribution. This was not translated by his Honour into a limitation on the plaintiff’s recovery, but was seen as support for the conclusion at [65] -

“Although separate judgments are entered against each tortfeasor for damages assessed on different principles, it is the apportionment of responsibility pursuant to s 5(1)(c) of the Law Reform Act which determines the amount which the employer tortfeasor " becomes liable to pay…for any injury to " the plaintiff worker within the meaning of clause 3(b) of the GIO policy.”

30 With the utmost respect, his Honour’s reasoning, from s 151Z(2) to the construction of the insurance policy is not clear to me, but at the point he still did not suggest proportionate judgments.

31 Tobias JA then, however, cited from Leonard v Smith and Mills Workers Compensation in New South Wales, and said -

“68 The analysis of Allen J and Mills set out above relating to the impact of the 1989 amendments to the 1987 Act and, in particular, to that of s 151Z, demonstrate that pre-1989, the position at common law, where a worker could choose whether or not to sue his employer and could recover the whole of his damages from the party sued without regard to the entitlement of that party to recover contribution from a third party joint tortfeasor, has been replaced by a new regime. Under the 1987 Act, the worker's right to recover damages is now to be treated on the basis that that right extends to each individual tortfeasor (whether the employer or non-employer tortfeasor) to the extent only of that tortfeasor's percentage of responsibility for the accident . The analysis of Multiplex and the present case (which I have addressed in [62]-[65] above) is, I believe, consistent with those principles.” (emphasis added)

32 The sentence I have emphasised provided the basis for the approach taken by Murray ADCJ in the present case. It appears that Oxley County Council v MacDonald and Leighton Contractors Pty Ltd v Smith were not cited to the judge. However, save for the passage in Leonard v Smith earlier set out, which was part of Tobias JA’s citation, in my respectful opinion the sentence was not borne out by the citations, and for the reason earlier given I do not think the passage in Leonard v Smith supported it. Nor did the sentence flow from his Honour’s earlier reasoning. The Act did over-ride the principle that judgment is given in solidum against several concurrent tortfeasors, in that the judgments against an employer and a non-employer may be for different amounts. But that does not mean that a worker has rights against the individual tortfeasors only to the extent of the tortfeasors’ proportionate responsibilities.

33 It was not correct to put the matter as his Honour put it, and was not necessary for his Honour’s decision: indeed, it was not in accord with the position as to judgments discussed by his Honour earlier in his reasons. In my opinion, the position is as stated in Oxley County Council v MacDonald and Timberland Property Holdings Pty Ltd v Bundy. The plaintiff was entitled to judgment against the defendant for the full $531,742.

The cross-appeal: liability

34 The plaintiff was aged 51 at the time of the accident. He had worked as a general labourer, then for nearly 30 years as a car detailer, and for a short time as a casual cleaner. He took employment with the defendant on 3 April 1999. He spent about three days on demolition work at Waterfall, removing doors and windows and putting materials into recycling bins, and was then sent to work on the disused warehouse at Campbelltown.

35 The warehouse was a large building with a roller door at one end. It was dark inside the warehouse, as the electricity was not functioning. Also present at the site were Concrete’s foreman, Mr Tom Madden, and two labourers. They all tried to raise the roller door manually to let in more light, but could not do so. The other labourers put against the roller door an aluminium ladder about six metres high. They went off to do something else, and Mr Madden gave the plaintiff a shifting spanner and told him to go up the ladder and undo two big bolts.

36 The plaintiff went up the ladder. When he was at the top of the ladder it started to slide down the door, from the description with the foot of the ladder moving across the floor. The plaintiff “rode the ladder down face first”, landing on his right side on top of the ladder. He suffered injuries to his head and face, his wrists and his right knee.

37 The appellant believed that Mr Madden was standing at the foot of the ladder in order to hold it, but his belief was based on assumption rather than observation. He said he assumed Mr Madden was holding the bottom of the ladder, but when asked whether he looked said “No he was talking on his [mobile] phone”. He said that he last saw Mr Madden at the bottom of the ladder when Mr Madden handed him the shifting spanner, and that he assumed that Mr Madden was holding the ladder “but apparently he wasn’t holding it”. He said that he was not sure whether Mr Madden was holding the ladder, but assumed he was “[b]ecause he was talking”. None of Mr Madden or the other labourers was called to give evidence.

38 The defendant’s case at the trial was that the plaintiff went up the ladder of his own volition, contrary to instructions and while Mr Madden was elsewhere, without ensuring that someone was holding it. The judge did not accept that case. He accepted the plaintiff as a witness of truth, and accepted that when the plaintiff went up the ladder he assumed, and was entitled to assume, that Mr Madden or one of the labourers would be at its base to hold it.

39 The plaintiff had used an ordinary step-ladder in domestic situations, but had had no experience of using a six metre ladder. He was not given instruction or training in relation to the use of ladders, by the defendant or Concrete, or instructed as to its use on the particular occasion. He was simply sent up the ladder by Mr Madden. When it was put to him that he knew “that someone had to be holding the ladder for safety reasons”, he answered no.

40 In finding for the plaintiff the judge said -

“42. I conclude that the action of Mr Madden in requiring the Plaintiff to climb an extension ladder of five or six metres in length without ensuring that either he or some other person was at the base of the ladder to stabilise it, was an act of negligence. It may be that Mr Madden was distracted by having to answer his mobile phone at precisely the time when the Plaintiff was about to climb the ladder, however that seems to me to be no excuse. Mr Madden was in charge of the operation and he ought to have ensured that either he or some other worker was available to stabilise the ladder.
43. I am satisfied also that the Plaintiff did not receive sufficient instruction in the dangers associated with climbing ladders. It is true that the act of climbing a ladder is perhaps an everyday occurrence that any member of the community can be expected to know and be aware of the inherent dangers in doing so. However in this case it was an extension ladder, requiring the Plaintiff to be at a distance from the ground from which, if he fell, it would be reasonable to expect that significant injuries may result, and he was required to work at this height by handling a tool or possibly later manipulating the tool to loosen bolts. In those circumstances it was certainly foreseeable that if the ladder was not stabilised at the base either it, or the person upon it, might fall. Accordingly, if sued, I would find that Concrete Demolitions Constructions Pty Ltd was indeed guilty of negligence.
44. The question then arises whether the Defendant, Challenge Recruitment Australia Pty Ltd, is liable on the basis of its non-delegable duty of care to the Plaintiff.”

41 His Honour cited from TNT Australia Pty Ltd v Christie [2003] NSWCA 47: it is appropriate to repeat the citation -

“”46. The liability of a body hire company was recently discussed in TNT Australia Pty Ltd v Christie and two others [2003] NSWCA 47 (12 March 2003).

‘ [63] Notwithstanding the stance adopted at trial, Manpower sought to press a novel argument concerning the existence or scope of its duty of care as an employer. The submission was that Manpower did not have the employer's non-delegable duty because it was no more than an employment agency/bureau or "body hire company" and because it had handed over its employee into the control of TNT. Manpower pointed to some tentative obiter dicta in Fennell v Supervision and Engineering Services Holdings Pty Ltd (1988) 47 SASR 6 (at 13 per Jacobs J and 18 per von Doussa J, contrast at 7 per King CJ). Manpower also relied upon a passage in Stevens [ Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16] at 32-3, apparently overlooking the fact that the person whose casual negligence was there in issue (Gray) was not Stevens' employer in that case.

[64] I would reject this submission. It is contrary to authority, in that Kondis [ Kondis v State Transport Authority (1984) 154 CLR 672] and the cases that follow it proceed on the basis that the employment relationship creates the relevant non-delegable duty.

[65] On analysis, Manpower's submission boils down to the fallacious argument that the non-delegable duty can be delegated by abdication. …

[67] In my view, it would be contrary to principle to enable or even to encourage an employer that operates a labour hire business to treat the normal incidents of the employment relationship as modified simply because its employees are sent off to work for a client. Indeed, the very fact that employees are dispatched to external venues and placed under the de facto management of outsiders will, in some cases, have the practical effect of requiring the employer to adopt additional measures by way of warning or training in order to discharge its continuing common law duty of care to its employees.’
48. The learned President went on to refer to observations of the Industrial Relations Commission of NSW sitting in court session in Drake Personnel Ltd v Workcover Authority of NSW (1999) 90 IR 432. In that case it was said:
‘a labour hire company cannot escape liability merely because the client to whom an employee is hired out is also under a duty to ensure that persons working at their work place are not exposed to risks to their health and safety, or because of some implied obligation to inform the labour hire company of the work to be performed. In our view, a labour hire company is required by the OH & S Act to take positive steps to ensure that the premises to which its employees are sent to work do not present risks to health and safety. This obligation would, in appropriate circumstances, require it to ensure that its employees are not instructed to, and do not, carry out work in a manner which is unsafe’.”

42 His Honour continued -

“49. I think those remarks are apposite in this case.
50. Earlier, in these reasons, I have referred to Exhibit O, which expanded on the issues of occupational health and safety that the Defendant had warranted to Concrete Demolitions that it would observe. There is no evidence that the national co-ordinator of OH & S, Mr Poole, ever visited the work site and carried out an assessment of the dangers to which the Plaintiff might be exposed. True it is that the Defendant would have to have a person stationed permanently at the work site to oversee issues of occupational health and safety if it was to guard against the chance occasion when a person such as the Plaintiff might be climbing a ladder. Nevertheless, the Plaintiff maintains that he received no instruction prior to being sent to the Concrete Demolitions sites. Whilst climbing a ladder is not an unduly complicated work practice, there are dangers inherent in climbing extension ladders, particularly if they are unsupported. I bear in mind that the Plaintiff’s background was as a cleaner mainly involved in car detailing work. This calling he had pursued for the best part of 30 years, thus he came to be involved in this labouring work without any recent experience of what was required.
CONCLUSION
51. By virtue of the operation of the principles referred to in Christie I find that the Defendant is liable on the basis of its non-delegable duty of care to the Plaintiff, thus there will be a verdict for the Plaintiff.”

43 The defendant submitted that any failure on its part, as the plaintiff’s employer, properly to instruct and train the plaintiff in the use of ladders had no causally relevant connection with his injury. It said that even if the plaintiff had been instructed and trained not to go up a ladder unless it was secured, it would not have made any difference; because the plaintiff believed that Mr Madden was holding the ladder and so would have gone up the ladder. It submitted that the cause of the plaintiff’s injury was a casual act of negligence on the part of Mr Madden, which instruction and training on its part would not have obviated and against which it could not otherwise reasonably have guarded, and that in holding the defendant liable for failure properly to instruct or train the plaintiff the judge was in error.

44 I do not think that Murray ADCJ confined the basis of liability to failure properly to instruct and train the plaintiff in the use of ladders. As TNT Australia Pty Ltd v Christie at [67] shows, warning and training may be additional measures required of a labour-hire organisation, and the employer’s non delegable duty to provide a safe system of work is not negated when the employee is sent to work for a customer of the organisation. His Honour described as apposite the remarks set out from Drake Personnel Ltd v Work Cover Authority of NSW (1999) 90 IR 432, including that a labour-hire organisation may be required to “ensure that its employees are not instructed to, and do not, carry out work in a manner which is unsafe”. When he made his apportionment he said that he had found the defendant liable “on the basis of its non-delegable duty” (at [88]), that “because of the principle of non-delegable duty, it could be argued that the liability of the Plaintiff’s employer, the Defendant, is 100%” (at [89]), and that there was “failure to exercise any consideration or control over the circumstances in which it was requiring the Plaintiff to work at the Concrete Demolition site” (at [91]).

45 In Bourke v Victorian Work Cover Authority (1999) 1 VR 189 at [41]-[42] it was said -

“True it is that, where an employer sends his employee to work at or in premises occupied or controlled by another, … occupation and control by another person may be a relevant fact in considering whether the employer had been in breach of his own independent duty to the employee. But the fact that the employee’s work is required to be done on premises of another does not absolve the employer of his duty. Its impact upon whether he had breached his duty will depend upon all the circumstances. As Lord Denning said in Smith v Austin Lifts Limited [1959] 1 WLR 100:

Notwithstanding what was said in Taylor v Sims & Sims [(1942) 167 LT 414 ; [1942] 2 All ER 375, it has since been held, I think rightly, that employers who send their workmen to work on the premises of others cannot renounce all responsibility for their safety. The employers still have an overriding duty to take reasonable care not to expose their men to unnecessary risk. They must, for instance, take reasonable care to devise a safe system of work … ; and, if they know or ought to know of a danger on the premises to which they send their men, they ought to take reasonable care to safeguard them from it. What is reasonable care depends, of course on the circumstances …


(See also Wilson v Tyneside Window Cleaning Co [1958] 2 QB 110 at 121–2 per Pearce LJ; Sinclair v William Arnott Pty Ltd (No 2) (1963) 64 SR (NSW) 88 at 91–2 per Walsh J).

[42] One can conceive of a multitude of circumstances where workmen are sent to work upon premises controlled by others in which the impact upon the discharge of the employer’s duty will vary. It will depend no doubt upon such matters as the employer’s opportunity to inspect the premises, the length of time the employer has put his employees to work on the premises, the awareness in the employer of the danger, his capacity to shield his employees from the danger and various other factors.”

46 This passage from Bourke v Victorian Work Cover Authority was cited and accepted in the decision of this Court in Atkinson v Gameco (NSW) Pty Ltd [2005] NSWCA 338 at [19].

47 In the present case the defendant did nothing towards safe working conditions at the warehouse, not even visiting the site to see what the working conditions were. The particular use of the ladder might have been a “chance occasion”, but use of a ladder was not, and the defendant did not look to how Concrete would allow a ladder to be used or instruct or train its inexperienced employee against an occasion of using a ladder.

48 The judge did not find that Mr Madden was holding the ladder but was momentarily distracted by answering his mobile phone. The finding was wider, that Mr Madden failed to ensure that “either he or some other worker was available to stabilise the ladder”. The ladder could have been secured otherwise than by someone holding it. The failure was in the system of work, which did not properly attend to securing the ladder, and it was a breach of the defendant’s non-delegable duty of care; the injury was in law caused by the negligence. There was also a direct breach by the defendant in its failure to instruct the plaintiff as to the use of ladders, negligence which may also in law have caused the injury in that, properly instructed, it may be that the plaintiff would not have assumed that Mr Madden was holding the ladder and would have gone up the ladder only when it was secured; but it is not necessary to rest the defendant’s liability on that breach.

49 The respondent relied on Atkinson v Gameco (NSW) Pty Ltd. In that case the plaintiff went to a potential customer’s premises in Thailand to market the defendant’s tanker equipment, and was injured when he used an unsafe ladder part of a tanker to gain access to the top of the tanker. It was held that the employer’s duty of care did not extend to the state of the tanker ladder or the system of work at the premises, and that when the customer’s representative directed the plaintiff to the tanker ladder there was “essentially a casual act of negligence and not part of any system of work” (at [26]); and it was held that any training in general safety procedures and risk assessment was unlikely to have caused the plaintiff not to use the unsafe ladder.

50 The facts of Atkinson v Gameco (NSW) Pty Ltd are far distant from this case. The defendant was not a labour-hire organisation. The premises were in Thailand, not at Campbelltown, and the defendant was not in a position to do anything about the safety of the tanker ladder or the system of work at the premises. The defendant did not, as the defendant in the present case did, promote labour-hire services by stating that it “is an essential requirement of our start of business with any client that we conduct an occupational health and safety audit and a risk assessment of the work site and practices of the host employer”. (The judge quoted this, and more to like effect, from the defendant’s correspondence with Concrete.) Instruction may well have had a material effect on the plaintiff’s ascent of the ladder in the warehouse.

51 In my opinion, the cross-appeal as to liability fails.

The cross-appeal: contributory negligence

52 The grounds of appeal included a challenge to the judge’s holding that the plaintiff had not been contributorily negligent. Counsel for the defendant said that he “can’t formally renounce it”, but that the plaintiff was doing what Mr Madden told him to do “[s]o I don’t wish to make any submissions in relation to that.” If the ground of appeal did not deserve submissions, it should have been renounced.

The cross-appeal: damages

53 The assessment of damages was -

Non economic loss $106,402.00
Past economic loss $164,891.00
Fox v Wood $14,111.00
Lost superannuation $25,000.00
Future economic loss $139,536.00
Past out-of-pockets $41,802.00
Future medical expenses $40,000.00
TOTAL $531,742.00

54 The defendant’s grounds of appeal challenged non-economic loss, past economic loss and future economic loss. There could be flow-on consequences for lost superannuation, although the $25,000 was a global rather than calculated amount.

55 The defendant’s challenge to non-economic loss turned upon the judge’s acceptance that a hip disability emerging in late 2000 was causally connected with the accident in April 1999. Its other challenges included but went beyond the same question. (Perhaps strangely, the defendant did not challenge future medical expenses, in part for hip replacement). It is convenient to deal with the question at the outset.

56 The appellant was hospitalised. He underwent a partial patellectomy with wiring to his right knee, and right and left wrist fractures were reduced and one was wired. The appellant was discharged from hospital on 30 April 1999 with a brace on his right knee and both arms in plaster casts.

57 Passing over the further attention to these injuries, commencing in late 2000 the appellant had right hip pain and some low back pain. Investigations showed rapidly progressing osteoarthritic change to the right hip, to the point that hip replacement was considered necessary.

58 The judge noted that this disability was the subject of particular dispute. He said that the defendant argued that, because of the gap in time between the injury in April of 1999 and the plaintiff’s first complaint of pain in the hip, the hip and back disability could not be related to the accident.

59 At least on appeal, the submissions were directed to the hip disability. The back condition appears to have been regarded as following the judge’s finding as to the hip disability: in any event, it was not submitted that there was separate error in relation to the back disability. Complaint of hip pain was first recorded by a treating doctor on 11 September 2000. The medical opinion was divided.

60 Dr Patrick said in a report of 7 May 2004 -

“I believe the likelihood is that the osteoarthritic change at the right hip, which has rapidly progressed, has indeed been significantly post traumatic, consequent upon the fall of 14 April 1999, particularly as he has fallen from a height onto concrete, largely onto his right side. Even if there has not been significant trauma to the right hip laterally, with his sustaining a stellate fracture of the right patella, it is likely that there has been substantial transmitted injury to the right hip along the length of the right femur, with subsequent chrondal damage at the right hip, proceeding to progressive post-traumatic osteoarthritis.”

61 Dr Habib also thought that the arthritic condition indicated a severe jarring trauma to the right hip from the impact of the right knee hitting the concrete floor.

62 Drs Gonski and Smith, however, considered that the hip condition was non-traumatic, the ordinary progression with wear and tear of an existing condition. Dr Gonski opined, without explanation, that “the degenerative condition of the hip is not aggravated by the fall”. Dr Smith opined, without other explanation, that “his hip arthritis is unrelated to the fall” and “[t]he right hip arthritis is not consequent to the accident of 14/4/99 and predates that accident”.

63 Although not noted by the judge, Dr Bodel said that it was “unlikely that a fracture occurred in the hip in that fall and it appears that the pathology in the right hip therefore is constitutionally based”. Also not noted by the judge, Dr Dave said that “he may fit into the category of aggravation of some preexisting hip pathology”.

64 The judge said -

“65. In my opinion the argument in favour of the right hip being post traumatic is more convincing that the argument that it is not. It seems to me feasible that as the Plaintiff impacted with a concrete floor with sufficient force to cause a fracture to his right patella, there would correspondingly be interference with the mechanism of the hip joint. It may be that there were pre-existing changes in the hip, although against that it is noted that the Plaintiff was only 51 years of age when this accident occurred. In any event, in my opinion there has been an aggravation at least of the arthritic changes in his hip caused by the trauma.”

65 The medical evidence was all by reports, and none of the doctors was cross-examined. The respondent submitted that the absence of complaint for some sixteen months meant that the opinions of Drs Gonski and Smith should have been preferred. That fell far short of demonstrating error in the judge’s preference for the opinions of Drs Patrick and Habib. It is necessary for a party seeking to overturn a finding of fact to demonstrate error on the part of the trial judge. The judge’s finding was well open on the evidence. No contemplation of the reasoning to the different conclusion, which was scant, gives superiority to the opinions of Drs Gonski and Smith, and error has not been shown.

66 It should be noted that the judge went on to say -

“66. In my opinion it does not matter greatly whether the hip is related or not. The fact that the Plaintiff had serious injuries to both his wrists and right knee indicate that those injuries alone would preclude him from a large range of occupations. The result is that the Plaintiff is left with a considerable physical disability. In the first place he has a stiffened right wrist, which although it has eliminated or reduced the pain in that wrist, nevertheless he has suffered a loss of strength of dexterity in that limb. He also has considerable disability in the right knee, which will in the future require operative treatment in the form of a total knee replacement. Those injuries alone would preclude him from heavy labouring tasks, and severely limit his earning capacity.”

(a) Non-economic loss

67 The judge considered “that the Plaintiff’s injuries and disabilities represent 45% of a most extreme case”. The defendant submitted that if the hip and back condition was “removed from the equation”, this would reduce to 20 per cent of a most extreme case. It did not otherwise contend for error in the evaluation made by the judge. Since the hip and back condition is not to be removed from the equation, no more need be said.

(b) Past economic loss

68 A schedule of damages provided to the judge by counsel for the plaintiff calculated past economic loss for successive periods of 52 weeks commencing on 14 April 1999 and ending on 13 April 2005. The first period used a net wage of $430.99. The following periods used increasing figures reflecting changes in the value of money, to a net wage of $475.00 for the last period. The total of the extensions for the periods was $164,891.48.

69 The judge said -

“72. For past economic loss the Plaintiff at the time of the accident was in receipt of a net wage of $431 per week. That figure has been adjusted since 1999 to a figure of $475 per week on current rates. I consider that those figures represent a fair assessment of the Plaintiff’s pre-accident earning capacity. The Plaintiff’s counsel has supplied calculations reflecting gradations in wages since 1999 on the basis of the figures that I have just mentioned. The calculation for past economic loss on that basis is $164,901. I award that figure.”

70 The plaintiff conceded that there had been a duplication of one of the periods in the schedule of damages, and the parties agreed that there should be a reduction of $22,906.

71 The defendant submitted that if the plaintiff’s back and hip condition was “removed from the equation”, the past economic loss would be of the order of $70,000. Again, no more need be said.

72 The defendant submitted that there had been error in that no allowance had been made for a time during which the plaintiff was unfit for work as a result of an unrelated injury.

73 The relevant evidence was brief. In his evidence in chief the plaintiff said that on 13 October 2001 he fell on the stairs at his daughter’s home and broke his right collar bone and some ribs. He was attended to in hospital and convalesced. His evidence continued -

“Q. And how long were you affected by the injuries in that fall?
A. A long while, four or five months.
Q. And over that four or five month period what problems were you having with your day to day state of health attributable to the fall?
A. I couldn’t get around, I was house bound, I just stayed in the house all the time. I didn’t look out for positions then, I couldn’t, you know.
Q. So you weren’t looking for work for that four or five month period?
A. Three or four months yeah.”

74 The matter was not taken further in cross-examination. Counsel for the defendant did not in his submissions take issue with the schedule of damages on the ground that there should have been an allowance for the three to five months. No doubt for that reason, the judge did not mention the three to five months or make the allowance.

75 The defendant submitted that the plaintiff’s inability to earn income for the three to five months was a vicissitude known to have come home, and that the plaintiff would be over-compensated unless there was specific allowance for it in arriving at his past economic loss. The relevant net wage in the schedule of damages was $452.00, and an allowance for twelve weeks (which the defendant accepted as the appropriate time) would be $5,424.

76 The defendant’s submission is correct in principle, see DNM Mining Pty Ltd v Barwick [2004] NSWCA 137 at [37]-[45]. The plaintiff’s response was to the effect that, where the defendant had not made explicit by cross-examination that being house-bound meant that the plaintiff could not exercise his earning capacity, and had not made an appropriate submission to the judge, the failure to make an allowance would not itself have attracted leave to appeal and this Court should not be moved to intervene.

77 Past economic loss must be corrected because of the duplication. Although correction may not have been made if the only challenge to the judge’s decision had been failure to make the twelve week allowance, failure to make the allowance is before this Court and I consider that the further correction should be made.

78 The defendant finally submitted that past economic loss was excessive under a ground of appeal that the plaintiff “as a recently engaged casual employee, was unlikely to have continued to earn wages at the rate he was being paid at the time of his accident”.

79 When attention was focussed on the ground, the source of the net wages in the schedule of damages was obscure. From tax returns in evidence, the plaintiff’s net wage as a car detailer, which occupation he had ceased shortly before the accident, was of the order of $428 per week for the 1998 tax year and probably more for the 1999 tax year until his employment with the defendant. The award for a casual labourer as at April 1999 was $15.40 per hour, $585.20 for a 38 hour week, but for the short time of his employment by the defendant the plaintiff was paid at the rate of $16.06 per hour, $610.49 for a 38 hour week. The net wage would have been more than $430 per week.

80 I see no error in the judge’s valuation of the plaintiff’s lost earning capacity. He had left car detailing because he wanted to increase his earnings, and was assessed by the defendant as having an “[e]xtremely good attitude towards work” and as “a very enthusiastic guy who takes his cleaning very seriously”. While as a casual employee he may not have obtained full-time work from the defendant, with that endorsement the future was good and if he obtained anything like full time work his increased wage would make him much better off. There is no reason to think that, even in his fifties, as a long-experienced car detailer he would have had difficulties in returning to that occupation. The plaintiff might not have earned wages at the rate of $430 per week net, adjusted for inflation, but he also might have earned wages at a higher rate. Vicissitudes can be positive as well as negative, and the plaintiff might have exercised a more remunerative earning capacity as well as the reverse. Even for past economic loss the exercise had unknowns, and in my opinion it was open to the judge to make the assessment he did.

81 In the result, past economic loss is to be adjusted by $22,906 and $5,424, with such consequential adjustment to lost superannuation as is appropriate.

(c) Future economic loss

82 In the schedule of damages the plaintiff claimed future loss of earnings at $475 per week for eight years discounted by 10 per cent. The judge said -

“75. The Plaintiff is now 57 years of age. He [sic] remaining span of working life can be reasonably assessed at eight years. In my opinion the Plaintiff is virtually unemployable, by reason of his injuries. In the future it is necessary that he will probably come to have both a knee and hip replacement operation. I think effectively the Plaintiff will be precluded in the future from any meaningful employment.
76. The multiplier for eight years on the 5% tables is $345.6 [sic]. On the basis that the Plaintiff’s pre-accident earning capacity was $475 per week, the calculation becomes $164,160. After one makes allowance for vicissitudes of 15%, the resulting figure is $139,536. I award that figure-“

83 The defendant submitted that if the plaintiff’s back and hip condition was “removed from the equation“, the future economic loss would be reduced. Again, no more need be said.

84 The defendant submitted that the damages were excessive under the ground of appeal earlier described in relation to past economic loss, taken up again, that the plaintiff “as a recently engaged casual employee was unlikely to have continued to earn wages at the rate he was being paid at the time of his accident”. It submitted that the judge should have taken a net wage figure less than the $475, or alternatively should have discounted by more than 15 per cent. The reasons I have given in relation to past economic loss explain why I do not think that error has been shown.

85 The defendant finally submitted that the damages were excessive under a ground of appeal that no allowance was made “to reflect the possibility that the Plaintiff might have been able to find some employment within his restricted work capacity”. It again submitted that the judge should have taken a net wage figure less than the $475, or alternatively should have discounted by more than 15 per cent, because of what it said was “a capacity to perform restricted part time, probably sedentary, work”.

86 This amounted to a challenge to the judge’s conclusion, in his [75] set out above, that effectively the plaintiff would be precluded in the future from any meaningful employment; that is, that any residual earning capacity he had would not bring earnings. That conclusion was preceded by his Honour’s description of the plaintiff as “virtually unemployable”, and by his discussion of medical opinions -

“[69] I think the Plaintiff has endeavoured to rehabilitate himself by cooperating with the rehabilitation counsellors. I think that the Plaintiff has been incapacitated by reason of his injuries since the time of injury to the present time. The Plaintiff gave evidence of the efforts he has made to obtain light work, so far without success. I consider that the Plaintiff is considerably disabled, and has been so for many years. Indeed Dr Bodel, who reported to the Defendant on the 19th of April 2001, made this comment:
‘This patient is certainly not fit for labouring duties and never will be. He should be able to tolerate part-time light duty work and may well benefit from continued assessment by a rehabilitation facility. He will need to be able to vary position from standing or sitting or walking at will, and I doubt that he would ever be able to cope with more than about 20 hours of work per week. He will need retraining into lighter duty activities and I would place a 10 to 12 kilogram lifting limit on him up to waist level only.’
I find such an assessment as unlikely to result in any meaningful working capacity.
[70] Dr Gardner reported to the Defendant’s solicitor on the 17th March 2002 as follows:
‘In my opinion, based on my assessment of his ongoing disabilities and assuming that the right knee and hip operations are not required in the immediate future, his physical abilities will continue to be restricted. For example, he would not be capable of walking for more than ten minutes because of pain in the right hip and knee, and he can’t sit for more than one hour. He is unlikely to be able to return to car detailing duties, or ladder work …
Prognosis in scenario A is extremely poor. He will remain essentially unemployable in the only vocation for which he is trained and competent, that is car detailing.’
[71] Dr Berry in his report of the 29th October 2001 said this:
‘On the basis of today’s examination, putting aside the injuries from his recent fall, I would consider that his continuing problems with both wrists and with the right knee and the right hip preclude him from any active participation in the workforce’.”

87 The defendant did not seek to substantiate its challenge by going to the evidence in detail. It invited the Court to view an investigator’s video, which it said more widely was “relevant to [its] case on economic loss and capacity”. It said that the video was not consistent with some of the plaintiff’s evidence of what he could do, in particular that the plaintiff could walk around and move to a greater extent than he had said.

88 The judge did not specifically refer to the video, which essentially (and between many car journeys) showed the plaintiff carrying shopping, at a park where he let his greyhounds run, and doing some light gardening. That is understandable. I do not think the video places under a cloud such parts of the plaintiff’s evidence as were drawn to our attention, or controverts the judge’s findings as to the plaintiff’s ability to exercise earning capacity. Error has not been shown in the judge’s conclusion.

The result

89 The parties should recalculate damages with the adjustments to past economic loss and lost superannuation. The plaintiff is entitled to judgment for the full amount of the damages. If, as his counsel said and the defendant’s counsel did not contradict, the judgment should have been without deduction of the workers compensation payments, no doubt that will be agreed.

90 The defendant sought to uphold the effect of Gordian Runoff Ltd v Heyday Group Pty Ltd, although counsel recognised the difficulties in doing so. It failed to resist the appeal. It succeeded to only a limited extent in the cross-appeal, and even then on a conceded duplication and a matter which it had not put to the judge. In my opinion, the defendant should pay the plaintiff’s costs of the appeal and the cross-appeal.

91 Short minutes should be prepared, for the making of orders in chambers. I propose the present orders -

1. Direct the parties to deliver to the Associate to Beazley JA within seven days short minutes to give effect to these reasons.

2. Liberty to apply in the event of disagreement, in the first instance by letter sent to the Associate to Beazley JA.

92 McCOLL JA: I agree with Giles JA.

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