Grech v Bando Contracting P/L

[2015] NSWDC 129

District Court

New South Wales

Medium Neutral Citation:

Grech v Bando Contracting P/L [2015] NSWDC 129

Hearing dates:

30 June, 1 & 2 July 2015

Date of orders:

24 July 2015

Decision date:

24 July 2015

Jurisdiction:

Civil

Before:

Levy SC DCJ

Decision:

1. Verdict and judgment for the plaintiff in the sum of $647,766;

2. The defendant is to pay the plaintiff’s costs on the ordinary basis unless otherwise ordered;

3. The exhibits may be returned;

4. Liberty to apply on 7 days’ notice if further or other orders are required.

Catchwords:

TORTS – negligence – workplace injury – whether employer was negligent – whether contributory negligence; DAMAGES – assessment of claimed heads of damage

Legislation Cited:

Civil Liability Act 2002, s 3B
Evidence Act 1995, s 60
Workers’ Compensation Act 1987, s 151L
Workplace Injury Management and Compensation Act 1998,

Cases Cited:

Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13
Czatyrko v Edith Cowan University [2005] HCA 14
Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25
Dixon v Whisprun Pty Ltd [2001] NSWCA 344
Kondis v State Transport Authority (formerly Victorian Railways Board) [1984] HCA 61; (1984) 154 CLR 672
Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; 205 CLR 254
Nominal Defendant v Saleh [2011] NSWCA 16
Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58
Penrith City Council v Parks [2004] NSWCA 201
Rosniak v GIO [1997] 41 NSWLR 608
State of NSW v Gee (aka Michaels) [2002] NSWCA 326
State of NSW v Moss [2000] NSWCA 133, (2000) 54 NSWLR 536
Strong v Woolworths Ltd [2012] HCA 5
Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422
Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40
Zhang v Golden Eagle International Trading Pty Ltd & Ors [2006] NSWCA 25

Category:

Principal judgment

Parties:

Matthew Grech (Plaintiff)
Bando Contracting Pty Ltd (Defendant)

Representation:

Counsel:
Mr AS Lidden SC with Ms L Goodchild (Plaintiff)
Mr AJ Parker (Defendant)

  Solicitors:
Brydens (Plaintiff)
Turks Legal(Defendant)

File Number(s):

2014/58355

Publication restriction:

None

Judgment

Table of Contents

Nature of case	[1] – [2]
Issues	[3] – [4]
Credit	[5] – [6]
Facts	[7] – [117]
Plaintiff’s background, work and health history	[8] – [11]
System of work	[12] – [21]
Circumstances of injury	[22] – [38]
Injuries and treatment	[39] – [48]
Medical and allied reviews	[49] – [97]
Disabilities that remain	[98] – [110]
Mitigation	[111] – [117]
Issue 1 – Alleged negligence of the defendant	[118] – [138]
Issue 2 – Alleged contributory negligence	[139] – [148]
Issue 3 – Assessment of damages	[149] – [191]
Past economic loss	[150] – [159]
Future economic loss	[160] – [183]
Past loss of superannuation	[184] – [188]
Future loss of superannuation	[189]
Fox v Wood	[190]
Summary of damages assessment	[191]
Disposition	[192]
Costs	[193]
Orders	[194]

Nature of case

1. The plaintiff, Matthew Grech, brings these proceedings against the defendant, his employer, Bando Contracting Pty Ltd, a company owned by his brother, Stephen Grech, claiming damages for alleged negligence in respect of a back injury he sustained in the course of his employment on Wednesday 1 April 2004, whilst manually pulling telephone cables through a telecommunications cable pit without any mechanical or other assistance.

2. The proceedings are governed by the provisions of the Workers’ Compensation Act 1987 and the Workplace Injury Management and Compensation Act 1998.

Issues

3. The principal issues calling for determination in the proceedings may be shortly identified as follows:

Issue 1 -Whether the defendant employer had been relevantly negligent, and if so whether such negligence caused the plaintiff’s injury;

Issue 2 -Whether there had been contributory negligence on the part of the plaintiff;

Issue 3 -The assessment of the plaintiff’s entitlement to damages.

4. Each of the above issues involves a number of related sub-issues that will be identified for resolution in the context in which they arise for consideration.

Credit

5. I consider the plaintiff to be an honest witness who gave his evidence in a straightforward and truthful manner. I accept his evidence without reservation.

6. The defendant had undertaken surveillance of the plaintiff’s post-accident physical activities which resulted in DVD footage being obtained. Ultimately, the defendant did not tender that DVD evidence, nor did the defendant cross-examine the plaintiff on the content of that evidence. That DVD evidence had been considered by Dr Peter Giblin, an orthopaedic surgeon retained by the plaintiff’s solicitor to report on the plaintiff’s condition. In Dr Giblin’s report that followed his consideration of that DVD evidence, he said that material did not cause him to in any way alter his previously expressed opinions concerning the nature or the extent of the plaintiff’s condition: Exhibit “B”, p 38.

Facts

7. Unless otherwise stated, my findings of fact are as follows.

Plaintiff’s background, work and health history

8. The plaintiff is presently aged almost 36 years. He was aged 25 years at the time of his injury. Before the subject accident the plaintiff had not suffered any lasting effects from other injuries, or other health problems: T21.9.

9. The plaintiff had reportedly experienced some back pain in August 2001: Exhibit “A”. That item of history has been considered by a medical expert retained by the defendant who considered that earlier injury to have been minor, leaving the plaintiff without ongoing disability or impairment: Exhibit “2”, Tab 12, p 70.

10. The plaintiff had completed his education to Year 10 standard, achieving the School Certificate in 1995. Between 1996 and 1998 he partly completed an apprenticeship as a plant mechanic working with forklifts: T20.27. In 1999 he completed a 6 month certificated TAFE course in basic computers: T19.44.

11. The plaintiff subsequently worked as a storeman in the spare parts industry. His duties in that employment involved manual handling and heavy lifting tasks: T20.30 – T20.38. In 2002, the plaintiff commenced work with the defendant as a telephone technician: Exhibit “A”. He continued in that employment until the time of the subject accident.

System of work

12. The nature of the plaintiff’s work involved him being assigned by his brother to attend various sites in and around the outskirts of Sydney where telecommunication cable posts and pits were located, in order to carry out the work of locating and joining telecommunication cables.

13. That work required that the plaintiff remove tops covering telecommunication posts in order to identify relevant telephone cables, and to then join other components to those cables. He was then required to pull the cables through either conduits or through the ground located between such posts and the telecommunication pits. The work required that the cables would then be cut, joined, crimped and sealed before the respective posts and pits were again covered: T23 – T24.

14. In particular, the work involved disconnecting cables from the copper network, connecting other components to the cable, opening nearby telecommunications cable pits, locating the cable inside the pit, and then manually pulling on such cables in order to draw them through the conduit and the earth in which they were buried until the cable joint could be seen to enter the pit space: T24.50. The aim was for the plaintiff to pull a length of cable into the pit so that it could be cut and then further worked upon as required, in order to remake the cable joints: T23.30.

15. Other than being taught how to carry out the basic task of cable joining, the plaintiff received no formal training or safety instruction in how he was to carry out this work. He was essentially left to devise his own method by which to carry out the work: T22.16 – T22.31; T26.39; T53.49; T55.7.

16. The plaintiff said he had achieved this by watching his brother carry out such work when he first started. Other than that, the plaintiff’s approach to the work was to do the work as best could be done in the circumstances: T67.44 – T68.1.

17. The plaintiff was given separate and specific training for the cable jointing work, but he did not receive training to carry out the process of locating and pulling the cables: T52.33 – T53.7; T56.47. There was no defined system of work or training to deal with the eventuality of a stuck cable: T32.3.

18. The work system was that sometimes, the plaintiff’s brother who assigned the work would have attended and inspected the site beforehand, following which he would determine whether it was necessary to assign a second man to the job: T27.9.

19. The plaintiff explained that it was his experience that most such cables were able to be easily pulled through into the cable pits, but sometimes, a second person was required to achieve this: T25.46 – T26.4. The plaintiff was provided with a vehicle to transport him to the various sites where he was required to work. He was also provided with limited tools which comprised a spade, and some cable joining tools: T26.14.

20. The plaintiff explained that during the process of pulling on the cable, if the cable was found to be not moving, his approach to the task was that he would just pull harder: T62.3. The plaintiff was required to use his judgment as to how much force was required to pull on the cable in such circumstances: T62.16.

21. The plaintiff said, and I accept, he was under instructions from his brother to work fast: T71.27. That evidence was not contradicted. In carrying out the work, the plaintiff was also concerned to ensure that his brother would not lose money on the jobs: T72.43.

Circumstances of injury

22. On 1 April 2004, the plaintiff was assigned to carry out the required work in relation to the telecommunication cable in question, which was located at Cranebrook, NSW. Beforehand, his brother had allocated the job to him by email: T59.46.

23. The job was allocated to him to be carried out without the provision of any assistance from any other employee. Previously, he had carried out similar jobs by himself on approximately 30 if not more such cables: T60.18. The estimated time for such work to be completed was about 2 hours: T60.30.

24. On this particular occasion, the plaintiff removed the top of the telecommunications wiring post. He then removed the top of the nearby cable pit which was located opposite the post, and he then carried out the required preliminary tasks before pulling on the cable: T27.10 – T27.16. This included applying a lubricant to the cable: T31.47; T67.36.

25. The plaintiff then laid himself down on his stomach beside the cable pit in order to reach down to pull on the cable in order to bring the joined section of the cable into the pit as required. However, in that instance, he found that he was unable to get the cable to move sufficiently into the pit as was required: T27.20 – T27.35. The cable had only moved about half a metre before it stopped and became stuck: T69.1 – T69.7.

26. On about 5 per cent of the occasions on which the plaintiff had done similar work, the cables had also became stuck or jammed. On those occasions the plaintiff would then have to apply different levels of force to try to shift the cables as was required: T61.21 – T61.29.

27. Upon realising that the cable was stuck and could not be pulled further into the pit from that position, the plaintiff then re-positioned himself in order to obtain a better grip on the cable, although the angle of the approach to gripping the cable made this difficult. By those means he determined that he was unable to make the cable move very much: T27.40 – T27.49.

28. The plaintiff then re-positioned himself into a seated position so that his bottom was resting at one end of the pit, and his feet were resting at the other end of the pit, which was rectangular in shape.

29. The pit measured about 600mm in length, 450mm in width, and it was about 600mm deep. In the new position adopted, the plaintiff’s knees were bent up at an angle of about 45 degrees. In that position his back was flexed or arched forward. Whilst in that position, he then reached down with both of his hands between his legs to grasp the cable and steadily or gradually pulled on it in a single pulling motion, leading to him using his full strength, but without jerking the cable: T28.1 – T29.50. He did so for a few seconds: T73.5.

30. To do that, the plaintiff had to at times reposition himself, which he did on this particular occasion. In that regard, at T69.12 – T69.50, the plaintiff gave the following evidence:

“Q. And your feet were on the other side of the pit, or one side of the pit and your bum was on the other side of the pit?

A. Yes.

Q. You then bent over?

A. Yes.

Q. You can see what I'm doing here, I'm moving forward with my back.

A. Mm hmm.

Q. You grabbed the cable in between your legs?

A. Yes.

HIS HONOUR

Q. Using both hands like Mr Parker was showing?

A. Both hands.

PARKER

Q. Both hands?

A. Both hands.

Q. One in front of the other?

A. Yes.

Q. This is on the particular day?

A. Yes.

Q. How hard did you pull it on that occasion?

A. Like all my effort.

Q. Okay, now I want to figure out how many times you actually did it. Did you only do it one time?

A. Once, I didn't jerk it. I just pulled once, like.

Q. That's all right, sir, I'm not up to that yet. What I'm really trying to figure out is did you pull it once and then it didn't more and then you pulled it again?

A. No.”

31. The plaintiff elaborated upon that evidence by stating, at T70.39 – T70.49:

“Q. You can't specifically recall how many times you pulled on the cable?

A. I pulled it 'til it come, got stuck, and then I just pulled once after that.

Q. I'll just say it again. Sir, when you were in that adjusted position - after you had been on your stomach - can you specifically recall not pulling it, or can you recall pulling it more than once?

A. No.

Q. Do you say that in your recollection that didn't happen?

A. I don't remember it happening like that. I remember just pulling tighter until it, until my back went.”

32. In those events, the cable became free, as was intended, but in the course of it being freed, the plaintiff felt instant pain associated with an injury that he then incurred to his lower back: T30.2.

33. The decision of the plaintiff as to which physical position he should adopt in order to pull on the cable was essentially according to his judgment, governed by the juxtaposition of the cable to the top of the pit: T68.21 – T67.38.

34. It appears that the cable had been buried in an area of clay located between the telecommunications pole and the pit: T32.35. The only tool the defendant had provided to the plaintiff in order to assist him in the tasks of moving the cable was a spade. The unchallenged evidence was that a spade was an unsuitable implement for digging into clay in the event a cable needed to be unearthed, assuming that beforehand, it could not be pulled out manually.

35. It appears from the evidence that the only other practicable means of accessing the cable in order to move it from a jammed position may have been to use a lever, if available, or to cut the surrounding concrete with a saw, which the defendant would have needed to hire for the task.

36. The plaintiff described another method of moving the cable involved attaching a rope to the cable and to tie the other end of the rope to his vehicle, and to then pull on the cable by moving the vehicle forward, but in the process, using the assistance of a second person, taking care not to damage the cable or to create a trip hazard for passing pedestrians: T62.50 – T63.5; T63.25 – T63.37; T65.18 – T66.23; T92.24 – T92.36.

37. The plaintiff said that on the day in question he did not have the equipment to dig out the stuck cable and that the working space was too small to use a lever, assuming that one had been available for the task: T31.2 – T31.19. He did not have on hand the assistance required to employ the method of attaching a rope between the cable and his vehicle.

38. The plaintiff was asked questions as to why he had not called his brother once he had encountered difficulty in pulling the cable. He replied that it was his experience that sometimes his brother did not answer his phone (T57.21), although he also conceded that his brother was sometimes available to answer the phone: T58.8. The plaintiff ultimately acknowledged that he could have called his brother: T73.23. However, on the evidence, there is some doubt about the time it would have taken for his brother to attend the site to provide assistance, which raises the question of the practicality of calling the brother: T30.31.

Injuries and treatment

39. Once the plaintiff realised he had injured his back he called his brother Stephen Grech for assistance. His brother had apparently initially thought the plaintiff’s call was a joke. In those events, there was a 2 – 3 hour delay in the plaintiff’s brother attending to assist the plaintiff on site after the plaintiff had made a second call to him for assistance. Following those events, the plaintiff was taken to the Hurstville Medical Centre where he was examined by a general practitioner: T30.43.

40. Initially, the plaintiff was seen by a doctor at that centre. He was provided with some tablets and a conservative management plan. However, he felt no better. Instead, he found that he was in a lot of pain, and that he had difficulty in moving: T32.37 – T37.50. In the short term, physiotherapy did not provide him with relief from the pain he was experiencing: T33.10. In 2005, the plaintiff was eventually referred to an orthopaedic specialist and spinal surgeon, Dr Ashish Diwan for further medical management: T33.13; Exhibit “A”.

41. Medical investigations revealed that the plaintiff had sustained an injury to his L5/S1 disc with associated musculo-ligamentous involvement.

42. Dr Diwan eventually recommended the plaintiff have disc replacement surgery and that thereafter, the plaintiff pursue alternative work duties.

43. Before undertaking the surgery, the plaintiff continued to have aching in his lower back: T33.48. He could not cope with either his pre-accident duties or the lesser field duties that had been allocated to him after he was injured: T33.24 – T33.43.

44. At some stage, the plaintiff was referred to Dr Bernard Kwok, a neurosurgeon who reportedly recommended conservative management: Exhibit “2”, p 73. Neither party tendered any evidence from Dr Kwok.

45. After some little time off work, the plaintiff returned to work on reduced hours. The plaintiff was first trialled on paperwork but he found he was not able to maintain that work. He was also placed on other limited duties which involved just joining cables in the field however, he experienced aching in his lower back with that work: T33.15 – T33.48.

46. On an unstated date in March 2007, the plaintiff underwent the awaited surgical procedure in which Dr Diwan removed the plaintiff’s L5/S1 disc and replaced it with a prosthetic disc. Following that procedure, the plaintiff remained in hospital for about 4 – 5 days, following which he wore a brace for a month: Exhibit “2”, Tab 12, p 74. The plaintiff was left with significant pain after the operation. From an emotional viewpoint, he was stressed and was not coping: T35.14.

47. The plaintiff found that he was unable to cope with the post-accident field work that had been assigned to him. He said this inability was due to the condition of his back: T33.43. In December 2007 the defendant found it was uneconomical to continue to retain the plaintiff’s employment, and the plaintiff was therefore retrenched: T35.19 – T35.27. He then remained unemployed for about 6 months.

48. On 1 July 2008, the plaintiff commenced mitigatory employment as a sales assistant with Wollongong Auto Supplies. That was a position that had been obtained for him with the rehabilitation assistance provided by the workers’ compensation insurer. At present, the plaintiff remains in that employment.

Medical and allied reviews

49. The medical evidence tendered in the proceedings was somewhat sketchy, and it incompletely documented the plaintiff’s history of treatment.

50. The plaintiff tendered a series of WorkCover medical certificates issued by Dr Ong: Exhibit “B”, pages 10 – 26. Some of those certificates were difficult to interpret because it appears they were only partly completed. They contained errors as to gender, and the dates were not entirely understandable. Essentially, those certificates, which were not challenged, referred to lifting and other work restrictions being placed on the plaintiff’s activities.

51. The defendant also tendered a series of WorkCover certificates covering the period between 26 April 2004 and 27 July 2015. Those certificates had been prepared by an unidentified medical practitioner. Those certificates were also left partially incomplete: Exhibit “3”.

52. A chronological review of the tendered medical and allied reports appears in the paragraphs that follow.

53. On 19 May 2004, at the request of his general practitioner, the plaintiff underwent a CT scan of his lumbar spine, which revealed a large disc protrusion at the level L5/S1 with a left sided nerve root impingement: Exhibit “B”, p 1.

54. On 22 February 2005, the plaintiff’s treating physiotherapist prepared a report that summarised the plaintiff’s treatment to that time: Exhibit “2’, Tab 8.

55. On 24 March 2005, the plaintiff’s treating orthopaedic surgeon, Dr Diwan, prepared a report on his initial assessment of the plaintiff’s condition. He recommended a spinal column decompression procedure involving discectomy and disc replacement: Exhibit “2”, Tab 10, pages 61 – 62. That surgery was not carried out until March 2007.

56. On 2 June 2005, at the request of Dr Diwan, the plaintiff underwent an x-ray of his lumbar spine in flexion and extension whilst standing. This revealed no evidence of instability: Exhibit “B”, p 2.

57. On 2 June 2005, at the request of Dr Diwan, the plaintiff underwent an MRI examination of the lumbar spine, which revealed a loss of hydration of the L5/S1 disc, with an annular tear, and a small disc protrusion just left of the midline: Exhibit “B”, p 3.

58. On 6 June 2005, the plaintiff was reviewed by Dr Diwan. At that time, Dr Diwan identified an L5/S1 disc problem. Dr Diwan recommended the plaintiff undergo a functional rehabilitation programme with a view to the plaintiff returning to full functional capacity: Exhibit “3”, Tab 10, p 63.

59. On 7 September 2005, at the request of Dr Ong, the plaintiff underwent a localised SPECT bone scan of the lumbar spine which revealed no abnormality: Exhibit “B”, p 4.

60. On 7 June 2006, Dr Diwan prepared a progress report of his review of the plaintiff. At that time he again recommended that the plaintiff undergo lumbar disc replacement surgery: Exhibit “3”, Tab 10, p 64.

61. On 8 November 2006, at the request of the defendant, the plaintiff was examined by Dr Geoffrey Rosenberg, a consultant orthopaedic surgeon: Exhibit “2”, Tab 9. Dr Rosenberg supported Dr Diwan’s suggestion that the plaintiff undergo disc replacement surgery.

62. On 16 February 2007, the plaintiff underwent an x-ray of the lumbar spine, which revealed no vertebral body mal-alignment: Exhibit “B”, p 5.

63. On an unidentified date in March 2007, the plaintiff underwent the earlier described spinal surgery. The medical evidence did not include any operation note or any clinical report of the operation that had been carried out on the plaintiff’s lumbar spine.

64. On 13 March 2007, at the request of Dr Diwan, the plaintiff underwent a post-operative x-ray of the lumbar spine, which showed an inter-vertebral body disc replacement at the level L5/S1: Exhibit “B”, p 6.

65. On 15 March 2007, at the request of Dr Diwan, the plaintiff underwent further post-operative x-rays of his lumbar spine which were reported as showing a near normal alignment of the disc prosthesis at the level L5/L1: Exhibit “B”, p 9.

66. On 16 June 2007 and on 12 November 2007, at the request of Dr Diwan, the plaintiff underwent further x-rays of the lumbar spine which were in each instance reported as showing a Bryan disc replacement in situ at the level L5/S1: Exhibit “B”, pages 7 – 8.

67. On 13 August 2008, at the request of his solicitor, the plaintiff was examined by Dr Richard Evans, consultant physician. Dr Evans concluded that at that time, the plaintiff was not fit for the full time duties of his previous job as a telephone technician, but that he was instead fit for lighter duties with restrictions on bending, twisting movements of the back, and lifting weights heavier than 10kg: Exhibit “B”, p 29.

68. On 28 October 2008, the plaintiff was assessed on the defendant’s behalf by Dr Sikander Khan, a consultant orthopaedic surgeon, who advised that the plaintiff was fit for selected duties that did not require lifting of more than 10kgs, and jobs not requiring prolonged standing, bending, stooping or twisting type activities: Exhibit “2”, Tab 12, pages 70 – 78.

69. On 26 August 2011, at the request of the workers’ compensation insurer, the plaintiff underwent an earning capacity assessment aimed at seeking to identify his residual capacity to earn an income: Exhibit “2”, Tab 14, pages 85 – 114. The resultant complex 29 page report dated 28 September 2011 was prepared by Dr Robin Mitchell, an occupational physician, in conjunction with Mr David Brown, an occupational psychologist.

70. The report bears some analysis. Part A of that report comprised an introduction (p 87), Part B, comprised a functional assessment carried out by the medical practitioner (pages 88 – 94), Part C comprised a vocational assessment of work options apparently carried out by the psychologist (pages 94 – 100), and Part D comprised a labour market and work option analysis, apparently carried out by the psychologist (pages 100 – 107). Although the report acknowledged the Expert Witness Code, the opinions expressed in the report require evaluation to determine whether the opinions expressed in the report in fact comply with that code.

71. On 25 February 2014, at the request of his solicitor, the plaintiff was examined by Dr Peter Giblin, a consultant orthopaedic surgeon, who at that time concluded that the plaintiff was unfit for heavy repetitive bending, lifting and twisting or prolonged periods of uninterrupted sitting, standing or walking. Dr Giblin also foreshadowed that substantial future surgery involving lumbar fusion could not be excluded: Exhibit “B”, p 34.

72. On 28 August 2014, the plaintiff was reassessed on behalf of the defendant by Dr Khan, who noted the plaintiff’s complaint of constant pain in the lower back, and related upper back pain which the plaintiff identified in his oral evidence: T92.44 – T92.49. Dr Khan noted the plaintiff’s sitting tolerance was about 30 minutes and that his standing tolerance was about an hour: Exhibit “2”, Tab 14, p 80.

73. Dr Khan was asked for his opinion on the plaintiff’s prognosis and work fitness. His opinions on those matters were set out in the following terms:

“…

(e)   Your prognosis;

Mr Grech's condition has stabilised and reached maximum medical improvement.

He would remain permanently unfit for heavy lifting activities but he would be fit for a wide variety of alternative jobs, such as the present job that he is doing as a sales person with restriction of lifting to be under 10 kilos and restriction of jobs that require prolonged standing, sitting, or repetitive pulling or pushing.

(f)   Your opinion as to the worker's fitness for work.

It is my opinion that he is unfit for his pre-injury work but fit for selected duties with weight lifting restriction of 10 kilos and being involved in jobs where he does not have to drive for prolonged periods and does not have to sit or stand for long periods with facility to get up and walk around at will. He should avoid jobs that require repetitive bending, twisting, pulling, or pushing types of work.

I have noted that his GP, Dr Herman (sic), has indicated that he would be fit for work as a warehouse administrator, dispatching and receiving clerk, and as a sales clerk on a full time basis doing full time hours.

Considering his present condition and his residual disabilities, I would agree with his assessment that Mr Grech will be fit for the above occupations doing full time hours with the restriction noted above.

…”

[Exhibit “2”, Tab 13, pages 83 – 84]

74. Beforehand, on 28 November 2011, the plaintiff’s general practitioner, Dr James Herrman, in general terms, certified the plaintiff to be suitable for the positions of warehouse administrator, despatching and receiving clerk, and sales clerk: Exhibit “3”, Tab 11, p 66.

75. It appears that in those events, Dr Herrman had been asked by a representative of the defendant to complete a form dealing with the assessment of the plaintiff’s function and recommended work restrictions.

76. In that regard, it appears that Dr Herrman was asked, in Part A of that document, to circle the options “Yes” or “No” as to his views on whether the plaintiff was suitable for the pre-identified options listed in paragraph [75] above for 38 full time hours of work each week: Dr Herrman had the option, on the form provided to him, to make additional comments, but he made no comments in that regard: Exhibit “2”, Tab 11, p 66.

77. Part B of that document contained details of Dr Herrman’s views on any restrictions to be imposed on the plaintiff’s activities. Although Dr Herrman stated in that document that the plaintiff was unfit for his pre-injury employment, or to do overtime (Exhibit “2”, Tab 11, p 68) he also considered the plaintiff should have no restriction on sitting, standing, walking or keying. However, he considered the plaintiff should avoid fixed or awkward spinal postures, including unsupported bending and frequent twisting of the lower back, and that he should undertake frequent posture movement throughout the day, alternating between standing, moving about, and sitting for short periods of time, with limits on driving in excess of 20 minutes: Exhibit “2”, Tab 11, pages 67 – 68.

78. The last page of the document at Tab 11 of Exhibit “2” raises an ambiguity. An ambiguity arises because although the rest of the form appears to indicate that Dr Herrman had completed the form, the last page is not expressed in the first person, and refers to Dr Herrman in the third person, as appears from the following questions and answers extracted from that document:

“10.3   Expression of fitness in current medical certificate.

Dr J Herman (sic) has provided a certificate dated 27 November 2010 that recommended Mr Grech was fit for suitable duties for 6 hours / 5 days a week form 27 November 2010 to 27 June 2011 with restrictions "avoid heavy lifting; rest breaks when needed".

10.4   Do you agree with the level of fitness stated in the current medical certificate?

The specific task precautions are reasonable and Mr Grech is now managing 40 hours of his current work each week, indicating a fitness for a normal attendance of such suitable duties.”

[Exhibit “2”, Tab 11, p 69]

79. In my view, those reported opinions of Dr Herrman are devoid of the kind of reasons that are required by UCPR Sch 7 cl 5(c) and should be discounted, and afforded little probative weight as a consequence.

80. It is relevant to note that there is a mismatch between the assumption of fitness to work for 6 hours per day / 5 days per week between 27 November 2010 to 27 June 2011 (attributed to Dr Herrman at Exhibit “2”, p 69) and the actual certificates signed by Dr Herrman (Exhibit “2”, p 204). The latter certificate actually refers to a capability of 8 hours per day / 5 days per week, in the context of an L5/S1 disc protrusion, and the need to avoid heavy lifting, and with the provision of rest breaks when needed.

81. That certificate was superseded by another certificate for 6 hours per day, 5 days per week, with maximum lifting of 10 kgs, and a provision for a maximum of travelling for 30 minutes at a time, plus the provision of regular rest breaks of 10 minutes every hour: Exhibit “2”, p 205. That certificate was updated to also apply between 27 October 2012 and 27 April 2013: Exhibit “2”, p 205.

82. I consider only limited weight should be given to those opinions. This is because the materials are devoid of any detailed descriptions or duty statements in relation to the demands of the job classifications identified in paragraph [74] above. Instead, on contested matters concerning the plaintiff’s work capacity, I prefer the more reasoned specialist opinions of Dr Giblin, which are summarised in the paragraphs that immediately follow.

83. On 15 January 2015, at the request of his solicitor, the plaintiff was re-examined by Dr Giblin, who at that time concluded that the plaintiff’s condition, which was stable, would always involve soreness with physical restrictions, including permanent unfitness for heavy repetitive bending, lifting and twisting or prolonged periods of sitting, standing or walking, but he remained fit for his current employment. He also considered that the plaintiff’s condition would be susceptible to aggravation and long-term deterioration. Dr Giblin further opined that he would be surprised if the plaintiff was in paid employment after the age of 60 years: Exhibit “B”, p 38.

84. There was no expert evidence that challenged or contradicted the orthopaedic opinions of Dr Giblin as summarised in the preceding paragraphs.

85. On 10 June 2014, a further earning capacity assessment of the plaintiff was carried out at the request of the defendant. That evaluation was again undertaken by Dr Robin Mitchell, this time in conjunction with Ms Jelena Dillen, a vocational psychologist. The resultant report, which was complex, was dated 1 July 2014: Exhibit “2”, Tab 15, pages 115 – 151.

86. That report follows the same format and methodology as was the case with the first report signed by Dr Mitchell and Mr Brown. Both reports need to be evaluated in conjunction with the plaintiff’s claim for future loss of earning capacity.

87. However, at this point it is relevant to note that there were some material differences between the two vocational capacity assessment reports.

88. The first report gave consideration to the positions of warehouse administrator, despatching and receiving clerk, and sales clerk (“the first lot of classifications”): Exhibit “2”, Tab 14, p 86. The second report gave consideration to different positions, namely those of a parts interpreter in the automotive industry, an office administrator facilitator and a job dealing with inbound customer service (“the second lot of classifications”): Exhibit “2”, Tab 15, p 116.

89. The shift of focus on the differing positions in the respective reports is significant because of the basis of those opinions, namely, the shift in terms of the assumed assumptions remains unexplained in the evidence.

90. The first lot of job classifications was based on the certificate of Dr Herrman dated 27 November 2010 to the effect that the plaintiff was fit for 6 hours of work per day for 5 days per week: Exhibit “2”, Tab 14, p 86.

91. The second lot of classifications was based on an entirely different assumption, namely full time earnings in those classifications: Exhibit “2”, Tab 15, p 116.

92. The second report referred to the plaintiff’s reported capacity for work at 6 hours per day, 5 days per week (p 121) yet the report recorded the medical consultant’s opinion that the plaintiff could work full time (38 hours per week): Exhibit “2”, Tab 15, p 124. That opinion was expressed in the form of a “Yes” answer to a leading question, and the subject opinion was unsupported by reasons, as is required by UCPR Sch 7 cl 5(c). In my view, on that account, the cited opinion in the second report should be given little if any probative weight.

93. In the second report there has been no attempt to reconcile the plaintiff’s account of his limited capacity for 6 hours of work per day, 5 days per week, and the medical consultant’s opinion of fitness for full time work, although the report conceded that the plaintiff was not fit for his pre-injury employment: Exhibit “2”, Tab 15, p 124.

94. At p 125 of Tab 15 of Exhibit “2”, the vocational capacity report contained the following unexplained opinion:

“…

12.5   Medical Consultant's opinion on suitable employment of work options identified by the Vocational Consultant

I have reviewed the work options identified in paragraph 21 and the analysis of those work options by the Vocational Consultant in this report and confirm that they are appropriate and consistent with my assessment of physical capacity and the recommended restrictions set out above:

…”

95. A careful review of paragraph 21 of the vocational consultant’s report as referred to in the above quotation at pages 133 – 140 of Exhibit “2”, at Tab 15, identifies the suggested job classifications to be those of (a) Parts Interpreter in the automotive industry; (b) an Office Administrator Facilitator; and (c) Inbound Customer Service (sic).

96. In my view, those recommendations in the report are theoretical only as there is no satisfactory reasoned basis for concluding that the plaintiff could carry out the requirements of those job classifications.

97. In view of that conclusion, I consider that in preference to the vocational capacity reports analysed, the yardstick of published rates of net average weekly earnings represent a more reliable background guide or yardstick upon which to base a comparative assessment of the plaintiff’s claim for future loss of earning capacity: State of NSW v Gee (aka Michaels) [2002] NSWCA 326, at [35]; Rosniak v GIO [1997] 41 NSWLR 608, at pages 621F – 622B-E, 628E.

Disabilities that remain

98. Given my acceptance of the plaintiff’s credit, and my acceptance of his evidence generally, in the absence of significant challenge on matters of history, I propose to treat the above history summarised from the medical reports as evidence of the plaintiff’s early post-injury difficulties, treatment and disabilities: Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25, per Heydon JA at [70]; s 60 of the Evidence Act 1995.

99. Similarly, and consistent with that approach, I have drawn upon the unchallenged content of the tendered medical reports to identify relevant aspects of the plaintiff’s history, and his reported disabilities.

100. On reviewing the plaintiff's evidence and the content of the medical reports, I am satisfied that he has disabilities as follows. He has constant lumbar back ache and he feels his condition has been slowly worsening: Exhibit "1", p 79. At times, the plaintiff experiences central back pain accompanied by numbness in both legs and to his feet, which normally occurs after he has been sitting without a change of posture: Exhibit "1", p 89. He has also developed postural pain in his thoracic spine over the last few years: T93.44 – T93.30.

101. The plaintiff has surgical scarring from his lumbar surgery in which the L5/S1 inter-vertebral disc was replaced. Consequent upon that surgery, he is restricted in his capacity to lift weights, and has restrictions on the advisability of him doing so, especially if repetition is involved. Furthermore, he has been advised to avoid activities involving prolonged walking or standing, bending with his back, and climbing: Exhibit "B", p 11.

102. The plaintiff's back pain also comprises intermittent sharp stabbing pains in the lumbar region. His sitting tolerance is limited and this limits his activities, such as driving. Because of his back pain, he takes medications each night to help him to sleep. His symptoms will persist indefinitely: Exhibit "B", pages 31 – 34.

103. A medical consultant's report obtained by the defendant suggests significant limits on the plaintiff engaging in repeated or sustained physical activity, and that opinion has identified the need to avoid awkward, fixed or unsupported postures: Exhibit "1", p 67.

104. The plaintiff is therefore permanently unfit for heavy repetitive bending, lifting, twisting, or prolonged uninterrupted sitting, standing, or walking. He also faces the prospect that the possibility of further surgery to his back in the form of a spinal fusion revision cannot be excluded. Unchallenged orthopaedic opinion is to the effect that the plaintiff's treatment will be best managed with a common-sense approach to self-imposed physical restrictions: Exhibit "B", p 34. This is likely to cause him some difficulties in the workplace, if he finds, for that reason he does not want to carry out particular work tasks on occasions. He will need a very understanding and tolerant employer.

98. The plaintiff cannot cope with a full 8 hour working day as this is too much for him. He struggles to work a 6 hour day for 5 days per week. His back aches more at the end of the day and he feels the problem is worsening over the last 6 months: T37.26 – T37.50. He has concerns about obtaining other employment because of his injury-related restrictions: T39.46. Those restrictions require that he stops what he is doing in order to rest for 10 minutes every hour: T40.10. This means that he is in reality working only 5 hours and not 6 hours per day, and that his work in those hours is not necessarily continuous.

99. The plaintiff's ongoing back ache at the L5 level, also involves occasional weakness in his right leg, which tends to give way on occasions, causing him to stumble, but not fall. His back pain can be aggravated by bending and twisting activities. It causes him pain when carrying supermarket purchases, and it is aggravated by prolonged sitting, standing or walking, as well as by coughing. The pain wakes him once or twice per night: Exhibit "B", pages 27 – 28.

100. A matter that has been identified in the unchallenged medical evidence is that the plaintiff's future health and fitness is likely to be affected by the premature onset of medical co-morbidities of a cardio / respiratory and endocrine nature, presumably caused by his limited opportunity for physical activity: Exhibit "B", p 34.

101. The plaintiff's sitting tolerance has been reduced from not more than 60 minutes in 2014, to not more than 30 minutes in 2015: Exhibit "B", p 37.

102. Although the plaintiff remains fit for his current employment, he remains susceptible to aggravation and long-term deterioration in his condition: Exhibit "B", p 38. This is a matter of some economic significance in the case of a man who is aged only 36 years.

103. In this regard, Dr Giblin has identified that the plaintiff has increased prospects for further injury, as well as vulnerability to significant complications due to the presence of the prosthetic replacement of his L5 / S1 disc: Exhibit "B", p 37. In that context, Dr Giblin's unchallenged view to the effect that he would be surprised if the plaintiff was in any paid employment beyond the age of 60 years seems understandable and reasonable when the medical evidence and the nature of the plaintiff's disabilities are considered as a whole: Exhibit "B", p 38.

Mitigation

111. Counsel for the defendant submitted that the plaintiff had relevantly failed to mitigate his economic damages in the sense that his return to employment could have earned more than he did on the labour market: T115.30 – T116.11; T126.39 – T127.

112. It is therefore necessary to consider the steps taken by the plaintiff to mitigate his damages, as provided by s151L of the WC Act, which is in the following terms:

151L Mitigation of damages

(1) In assessing damages, the court must consider the steps that have been taken, and that could reasonably have been or be taken by the injured worker to mitigate those damages.

(2) In particular, the court must consider the following matters:

(a) whether the injured worker has undergone appropriate medical treatment,

(b) whether the injured worker has promptly sought suitable employment from the employer or, if necessary, suitable alternative employment,

(c) whether the injured worker has duly complied with the worker’s obligations under Chapter 3 of the 1998 Act (Workplace injury management),

(d) whether the injured worker has sought appropriate rehabilitation training.

(3) In any proceedings for damages, the person claiming damages has the onus of proving that all reasonable steps to mitigate damages have been taken by the injured worker. However, the person claiming damages does not have the onus of establishing that the steps referred to in paragraphs (b)-(d) of subsection (2) have been taken, and the court assessing damages does not have to take the matters referred to in those paragraphs into account, unless it is established that before those steps could reasonably be expected to have been taken the worker was made aware by the employer or insurer that the worker was required to take those steps.

(4) In any proceedings for damages, a written report by a person who provided medical or rehabilitation services to the injured worker is admissible as evidence of any such steps taken by that worker.

113. In considering the requirements of s 151L(2) of the WC Act, it is plain that the plaintiff has undergone appropriate medical assessments and treatment, he initially pursued suitable light employment with the defendant until he was retrenched, he accepted suitable alternative rehabilitative employment in which he continues to engage, and there is no evidence that he has failed to comply with his obligations under Chapter 3 of the 1998 Act.

114. The plaintiff had followed a prolonged course of conservative treatment including physiotherapy, hydrotherapy, a gym programme, acupuncture and spinal rehabilitation before eventually undergoing surgery: Exhibit “2”, Tab 12, p 77.

115. In mitigation of his claim for loss of earnings, the plaintiff is presently working for Wollongong Auto Supplies earning $592 per week net for what amounts to less than full-time duties, namely 6 hours of work per day in the context that he rests for 2 hours of an 8 hour working day: T82,45; T83.32. That work is consistent with reasoned medical opinion relating to his situation.

116. In those circumstances, in my assessment, the plaintiff has discharged his obligation of showing that he has taken all reasonable steps to mitigate his damages: s 151L(3) of the WC Act.

117. I therefore do not accept the defendant’s submission that there has been a relevant failure on the part of the plaintiff to mitigate his damages.

Issue 1 – Alleged negligence of the defendant

118. In this case there can be no question that the defendant owed the plaintiff a duty of care: Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; 205 CLR 254, at [13].

119. The duty owed in the circumstances, was non-delegable, and it required that the defendant take reasonable care to avoid exposing the plaintiff to an unnecessary risk of injury in the workplace: Kondis v State Transport Authority (formerly Victorian Railways Board) [1984] HCA 61; (1984) 154 CLR 672, at [15]; Czatyrko v Edith Cowan University [2005] HCA 14, at [12].

120. The provisions of the Civil Liability Act 2002 do not apply to the liability analysis required in this case: s 3B(1)(f) of that Act. Therefore, the question of whether or not the defendant was negligent, is to be determined by longstanding established common law principles applied in the context of a prospective analysis: Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40, at [14], page 48; Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422, at [122] – [129].

121. The factual question of whether the negligence of the defendant was the relevant cause of the plaintiff's injury may in this case be determined by looking back at the circumstances and applying the “but for” test of causation: Strong v Woolworths Ltd [2012] HCA 5.

122. The plaintiff has pleaded the following particulars of negligence:

1. Failing to take any or any adequate precautions for the plaintiff’s safety;

2. Putting the plaintiff in a position of peril in the circumstances;

3. Failing to train or adequately train the plaintiff in proper and safe manual and handling techniques;

4. Requiring the plaintiff to work at excessive speed;

5. Failing to provide the plaintiff with a proper and safe system of work;

6. Failing to carry out any or any adequate risk assessment in respect to the work which the plaintiff was required to perform;

7. Failing to provide the plaintiff with a proper and adequate mechanical or physical assistance in and about his work and in particular in withdrawing stuck cables from pits and above ground posts;

8. Failing to provide the plaintiff with a suitable wire and pulley system;

9. Failing to provide the plaintiff with a suitable lever so as to give him mechanical advantage in the task of removing the said cable;

10. Teaching the plaintiff how to avoid awkward postures and stresses whilst attempting to do the work assigned to him.

123. The plaintiff tendered an expert liability opinion dated 22 February 2013 from Mr Neil Adams, a safety and ergonomics consultant: Exhibit “C”. In his report, at paragraph 4.8, Mr Adams set out a number of trite and common-sense safety requirements that employers should observe in ensuring the health and safety of employees in the workplace. These included ensuring that systems of work were safe and without risk to health, and the provision of due information, instruction, training and supervision needed to ensure the health and safety of employees at work.

124. After setting out the sources of his information and identifying the assumptions he made for the purpose of forming his opinion, Mr Adams made the following criticisms of the system of work in which the plaintiff was engaged:

1. The defendant failed to appropriately implement a hazard identification and risk assessment process, including by failing to provide suitable equipment: Exhibit “C”, paragraphs 4.11 and 5.1.3;

2. The work system in which the plaintiff was engaged had within it an inherently “significant probability” that exerting maximal or near maximal strength in the described task without training, instruction or advice in relation to safe postures, might eventually lead to musculo-ligamentous injury whilst in awkward postures: Exhibit “C”, para 5.2.2;

3. The risk of injury of the kind sustained by the plaintiff was “very significant”: Exhibit “C”, para 5.2.3;

4. If the reasonable preventative actions of the kind described at paragraph 4.11 of the report had been implemented, the risk of injury to the plaintiff in the manner described could have been significantly reduced, if not entirely obviated: Exhibit “C”, para 5.3.

125. The measures outlined by Mr Adams included the requirement of adequate training, the provision of a suitable mechanical device to make the work less arduous, such as a clamp and pulley system, or the provision of a lever to create a mechanical advantage when seeking to manipulate and pull the cable, or the allocation of an additional worker to help perform the task.

126. In my view, the assumptions made by Mr Adams for the purposes of formulating his opinions on the liability issues were well within the scope of the particulars of negligence cited at paragraph [122] above. They were sufficiently like the facts identified in the evidence given by the plaintiff as to how he came to be injured, as to make the criticisms of the defendant that were made by Mr Adams relevant to the required analysis and apt to the circumstances of the plaintiff's injury: Nominal Defendant v Saleh [2011] NSWCA 16, at [263], following Dixon v Whisprun Pty Ltd [2001] NSWCA 344 (at 53); Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58, at [9].

127. The analysis of the plaintiff’s claim that the defendant was negligent proceeds according to the above principles, as follows.

128. On the basis of uncontradicted and otherwise reasonable evidence of the plaintiff and Mr Adams, I find that at the time the plaintiff was assigned his particular duties on the day he was injured, a reasonable employer in the position of the defendant, when assigning those duties, ought to have known or realised that the plaintiff may encounter difficulty pulling the cables in the manner he described.

129. It would also have been reasonably apparent to an employer that the exertion of considerable manual force from an awkward position may be required in the allotted task, especially as the plaintiff had not been provided with any mechanical assistance, or the labour of an additional person, to enable the task to be carried out safely to avoid the risk of him incurring foreseeable and unnecessary injury.

130. It would have been plain to the defendant that the potential for the cables in question to become stuck or jammed, and that such a system would represent a reasonably foreseeable and probable risk of injury that was real and not fanciful, and was such, that a pro-active and prudent anticipatory response was required on the part of the defendant.

131. A response along those lines would have involved relatively little in the way of expense. The defendant could have provided the plaintiff with adequate training, tools and assistance which would have avoided the risk, but this did not occur.

132. Training of the plaintiff by the defendant could have easily included specific instructions for the plaintiff not to attempt to use maximal manual effort from an awkward position where, his spine was put at risk of injury from such efforts. Such training was not provided.

133. The defendant could have easily provided the plaintiff with a levering tool, such as a commonplace crow bar or some other readily portable and transportable implement that could have been effectively used as a lever to shift a stuck or jammed cable, or a block and tackle type pulley system could also have been provided. Such measures would have had the effect of significantly reducing the degree of manual force required to be exerted by the plaintiff whilst in a physically awkward position. Equipment of that kind, or ready access to a concrete cutter, as described in the evidence, was not provided by the defendant.

134. The defendant could have also provided the plaintiff with ready access to the services of an additional employee, whether that employee was one who would have accompanied the plaintiff to the job at the outset, or one who was available to be called at short notice for quick attendance on site. This is so particularly as the plaintiff was under instructions, and felt pressure, to finish the allocated jobs in a relatively short space of time, in order to maintain the profitability of the defendant's business.

135. The provision of an additional employee along the above lines would have also enabled the defendant's vehicle, which had been provided to the plaintiff, to be used under the supervision of that additional employee, to safely pull on the cable with an attached rope, as described by the plaintiff.

136. On the required prospective view of the circumstances as they applied at the time, all of the above measures were reasonable and practical risk-alleviating steps that the defendant could have readily taken without incurring undue difficulty, expense or inconvenience, whilst balanced against the defendant's need to ensure the profitability of his business operations.

137. Against the background of the plaintiff's description of the work system in which he was engaged, and the manner in which he was injured, together with the cited analysis provided by Mr Adams, I find that the criticisms made by Mr Adams, and as argued on behalf of the plaintiff, aptly apply. As a result, I find that the defendant was in breach of the duty of care it owed to the plaintiff in the subject circumstances.

138. I also find that but for the defendant's breach of duty of care, the plaintiff would not have incurred the back injury that has given rise to this litigation: Strong v Woolworths Ltd [2012] HCA 5. Accordingly, as the plaintiff has succeeded on the issues of breach of duty of care and causation, the plaintiff has therefore shown that the defendant was relevantly negligent as claimed.

Issue 2 – Alleged contributory negligence

139. The defendant claimed that the plaintiff’s injury was due to his own fault, and consequently relied upon the following pleaded particulars of contributory negligence:

1. Failing to have due regard for his own safety;

2. Failing to seek assistance if he believed that the task was too difficult to perform;

3. Failing to advise the defendant that he was having difficulty with the task.

140. In my assessment, for the reasons that follow, the defendant has failed to make good any of those allegations.

141. As to allegation (a) above, it is of a general and non-specific nature, and it must be read in conjunction with the employer's assumed and over-riding non-delegable duty to provide the plaintiff with a safe system of work. In the present case, the defendant provided the plaintiff with insufficient instructions on matters of safety for his allotted tasks, and gave him insufficient and inadequate tools with which to do his work, and essentially left it to him to devise his own methods for carrying out the required task.

142. In cross-examination the plaintiff acknowledged that the reason his injury occurred was that he had attended to the work task required of him in an unsafe way: T74.9. I took that evidence to be a hindsight concession as to the cause of his injury, and not a concession that he had contributed to his injury by his own negligence. The question relied upon by the defendant, and answered by the plaintiff at T74.9, was too wide and general to form a fair basis upon which to base a specific contributory negligence finding.

143. Absent any knowledge on the plaintiff's part as to the effect that the work system in which he was engaged was unsafe, he had no reason to question the task that the defendant had assigned to him.

144. The plaintiff had applied his best endeavours to the assigned task. Beforehand, the plaintiff had no idea of the actual physical force that was required to pull on the cable in order to pull the necessary portion of it into the cable pit. This was a matter relevant to the risk of injury that the defendant ought to have considered in planning the job and allocating the task.

145. At best, all that could be reasonably said in criticism of the plaintiff, in the circumstances, was that in his application to the assigned task, there might have been a casual act of negligence on his part. That circumstance, if found to exist, still falls well short of a proper basis for a finding of contributory negligence.

146. As to allegations (b) and (c) above, these seem to be theoretical in nature, and they seem to be misplaced in the circumstances of this case, because until the time when the plaintiff applied maximal physical force and then found the cable would not readily shift, immediately followed by an awareness of having injured his back, according to his training, he was not obliged to consider calling for assistance as he was entitled to assume that his employer had allocated to him a safe method of carrying out his work.

147. Furthermore, having regard to the pressure that was put on the plaintiff by his employer to work fast, and given the long time it took for his brother to respond to his call, consistent with the plaintiff's earlier experiences of calling his brother during working hours, and as has been shown by the time it took for his brother to actually attend once the plaintiff had been injured, it is doubtful that a call for assistance, if mandated by the plaintiff's training, which it was not, would have been heeded in a timely manner.

148. Accordingly, I find that the defendant has failed to establish the claimed defence of contributory negligence

Issue 3 – Assessment of damages

149. My assessment of the heads of damage claimed by the plaintiff is as follows.

Past economic loss

150. The parties have agreed that to date, the plaintiff has received a total of $195,735 in weekly payments of workers’ compensation: Exhibit “F”.

151. Copies of the plaintiff’s income tax returns for the period 2006 to 2008 were tendered: Exhibit “E”. Those returns are analysed as follows:

Year	Gross Income Declared	Tax Withheld	Net Annual	Net Weekly
2006	$41,600	$9412	$32,188	$619
2007	$41,600	$9412	$32,188	$619
2008	$43,436	$8252	$35,184	$676

152. It would appear that the net figures shown in the above table may be conservative because the net calculations are based on the amount of tax withheld by the employer, which is not necessarily the amount of tax that was due, and because in respect of the 2008 tax year, some of the income represented workers’ compensation payments and the period over which such payments were made is not known. Furthermore, it is not known whether the payments made up the full loss experienced by the plaintiff in that year. However, as the parties accept the above figures as the basis of the calculations of past economic loss I will adopt those figures as the basis for assessment.

152. The plaintiff's claim for past economic loss consists of a series of four sequential calculations, totalling $164,325 net, as outlined in the following paragraphs, which are in turn based on the facts set out in the preceding paragraph, and the calculations that are taken from MFI “7”, which summarises the evidence and agreements. The plaintiff’s submitted calculation proceeds as follows:

1. Between 1 July 2005 and 30 June 2006, the difference between the plaintiff's actual net earnings of $619 per week and the comparable earnings of $712 per week net that he would have derived uninjured, namely $93 per week net, reveals a claimed loss of $4841 net for that period;

2. Between 1 July 2006 and 30 June 2007, the difference between the plaintiff's net weekly earnings of $619 per week and the comparable earnings of $709 per week net that he would have derived uninjured, namely $90 per week net, reveals a claimed loss of $4680 net for that period;

3. Between 1 July 2007 and 30 June 2008, the difference between the comparable earnings of $817 per week net that he would have derived uninjured, namely $366 per week, reveals a claimed loss of $19,032 net for that period;

4. Between 1 July 2008 and 30 June 2015, loss of earnings at the rate of $373 per week net. The plaintiff’s submissions calculate this loss over 364 weeks to reveal a claimed loss of $135,772.

154. The aggregate of the above four calculations amounts to $164,325.

155. The defendant's submissions conceded that the calculations relied upon by the plaintiff are appropriate up until 1 July 2008. The defendant submits that from that date, the plaintiff could have returned to full time work for 40 hours per week, and therefore asserted that in such employment, the plaintiff could have earned “approximately $840 net per week” in “suitable employment” from 1 July 2008 to date, in the approximate amount of $55,000 inclusive of superannuation: MFI “5”, para 31.

156. In my view, for the reasons that follow, the defendant's submission for the assessment of past economic loss after 1 July 2008 is flawed.

157. First, the submission is reliant upon theoretical considerations, including an average of “suitable employment” positions that are entirely theoretical. Those positions have not been tested for their practicality concerning the plaintiff's need for selected duties with provision for significant hourly rest breaks of 10 minutes every hour. Those rest breaks represent about 16 per cent of the plaintiff’s already restricted working hours. Secondly, the submission ignores the force of the unchallenged opinions of Dr Giblin on the subject of restrictions on the plaintiff’s working conditions, which I have summarised at paragraphs [71] and [83] above, and which I accept. Thirdly, the suggested sum of $55,000 seems to represent an arbitrary figure that is not founded in the evidence.

158. Instead, I consider the submissions advanced on behalf of the plaintiff are based on the evidence. I consider the plaintiff’s submission to be reasonable, and that it should be accepted.

159. I therefore assesses the past economic loss component of the plaintiff's damages at $164,325.

Future economic loss

160. The parties have agreed that, at the age of almost 36 years, uninjured, the plaintiff would have had a remaining working life of 31 years, for which the 5 per cent multiplier is 833.8 years. It has also been agreed that the plaintiff is currently earning $592 per week net, whereas uninjured, his current comparable earnings would have been $965 per week net. This, it is agreed, demonstrates a current net loss of $373 per week net, by reference to comparable earnings.

161. On behalf of the plaintiff, it was submitted that the assessment of the plaintiff’s claim for future economic loss should proceed with the projection of an amount of $650 per week net on the 5 per cent tables over 31 years (x 833.8) less 15 per cent for vicissitudes, namely $460,674.

162. In contrast, on behalf of the defendant, it was submitted that the plaintiff’s future loss of earning capacity should be assessed by means of a projection of an amount of $125 per week net on the 5 per cent tables over 32 years (x 845) less 20 per cent for vicissitudes having regard to the plaintiff’s unrelated thoracic problems, yielding an assessment of $84,500. There is no evidence that thoracic problems interfere with the plaintiff’s earning capacity.

163. In my view, the defendant’s submission should be rejected as being a manifestly inadequate approach to the task of assessment of the claim for future economic loss having regard to the artificially low figure selected for projection, and also having regard to the preponderance of the medical evidence as to the plaintiff’s identified work impairments and restrictions.

164. It is therefore appropriate at this point to review the significant medical opinions on the issue of the plaintiff’s work capacity.

165. Dr Evans, a physician, stated on 13 August 2008, that the plaintiff was not fit for the full duties of a telephone technician, and identified restrictions on activities requiring much bending, twisting of the back, or lifting of weights heavier than 10kgs: Exhibit “B”, p 29.

166. Dr Giblin stated, on 3 March 2014, that the plaintiff’s back problems would persist indefinitely, and had a guarded prognosis, resulting in permanent unfitness for heavy repetitive bending, lifting and twisting, or prolonged periods of uninterrupted sitting or standing, and that the plaintiff’s condition would be subject to vulnerability for material aggravations and long-term deterioration: Exhibit “B”, p 34.

167. In a report dated 29 January 2015, which was based upon the most recent examination of the plaintiff, Dr Giblin re-iterated the opinions cited in the preceding paragraph, and added two relevant riders. The first was to identify that the plaintiff had an increased propensity for further injuries and complications from his earlier disc replacement surgery, which was injury-related and secondly, he expressed surprise that the plaintiff would be remaining in any paid employment beyond the age of 60 years: Exhibit “B”, p 38.

168. It is relevant to observe that none of the opinions cited in the preceding paragraph were the subject of challenge or evidentiary contradiction by experts of like qualification. It was also plain that those opinions were not inherently unreasonable in the terms in which they were expressed.

169. In coming to the above conclusion, I have not overlooked the opinions of the earning capacity assessment reports co-authored by Dr Mitchell, which for reasons already outlined at paragraphs [69] to [70] and [85] to [96] above, I consider should be discounted.

170. In coming to the conclusions set out in the preceding paragraphs, I have not overlooked the reports of Dr Khan, a consultant surgeon. On the specific issue of the plaintiff’s residual capacity for work, Dr Khan has stated that the plaintiff is fit to carry out selected duties which do not require lifting of more than 10kgs, and jobs that do not require prolonged standing, bending, stooping or twisting type activities: Exhibit “1”, p 77.

171. In my assessment, neither the reports of Dr Mitchell or Dr Khan should be seen as being a reasoned contradiction of Dr Giblin’s more recent, and therefore more reliable, opinions. Furthermore, the opinion of Dr Khan is not only dated, and overtaken by time, but it should be given diminished weight because it is not compliant with the Expert Witness Code: UCPR Sch 7 cl 5(c).

172. Having reviewed the array of reasoned medical opinions on the question of the plaintiff’s fitness for work, I consider that the defendant’s submission on the method to be adopted in assessing the plaintiff’s future economic loss should be rejected, as I consider Dr Giblin’s views more accurately reflect the position, and the defendant’s views do not reflect those opinions.

173. I now return to the elements of the calculations involved in the assessment of the plaintiff’s claim for future economic loss.

174. The plaintiff’s submission on the appropriate amount to be projected to assess the loss, namely $650 per week, is well in excess of the agreed difference between the plaintiff’s actual earnings and the agreed comparable earnings, namely $373 per week net.

175. The plaintiff’s contention is that a projection of $373 per week net over 31 years to age 67 years (x 833.8) less 15 per cent for vicissitudes, namely $264,356, would result in significant under-compensation.

176. That argument seems to be based on the proposition that such a calculation does not adequately reflect the most recent opinion of Dr Giblin, which casts doubt on the prospect of the plaintiff working after the age of 60 years.

177. An adjustment to the plaintiff’s submissions to reflect Dr Giblin’s opinion involves a two part calculation. First, the projection of the present weekly loss of $373 per week net over 22 years at 5 per cent (x 703.8) less 15 per cent for vicissitudes, which yields the sum of $223,140. Secondly, the projection of a loss of $965 per week net, being the agreed comparable rate, over the final 7 years of the plaintiff’s working life, on the 5 per cent tables (x 309.4) less 15 per cent yields the sum of $253,785. That latter sum would be required to be discounted for deferral of loss by 22 years on the 5 per cent tables (x 0.342) to yield $86,794. The aggregate of those two amounts is $309,934.

178. In my view, if that latter approach was to be accepted, it too would result in under-compensation to the plaintiff. This is because the projection of an assumed loss of a continuing loss of $373 per week seems to involve an unreasonable assumption that the plaintiff’s present employment, or employment of equivalent remuneration, would continue without interruption for the next 22 years.

179. In view of the opinion of Dr Giblin identifying the plaintiff’s vulnerability to aggravation or deterioration, I consider that assumption to be an unreasonable one. In respect of that component of the period of loss, it must be assumed that a vicissitude operating against the defendant is that the plaintiff may not be in continuous employment due to the effect of his injuries, or that he may not be able to continue to derive his present level of earnings, whether due to the continued availability of his selected employment for whatever reason, or because of foreseeable aggravations or deterioration, resulting in a higher level of loss of earnings.

180. Those latter factors, which need to be taken into account, represent imponderables that have a real and significant prospect of occurrence, impacting at a time and to an extent that is difficult, if not impossible to assess with any reasonable degree of accuracy or reliability.

181. Other factors to be recognised, both positive and negative, are that Dr Giblin’s more pessimistic concern regarding the plaintiff’s working life after the age of 60 years may not come to pass, or may arise later, or alternatively, the plaintiff’s present loss of $373 per week net may increase in the short to medium, if not long-term, if his condition deteriorates, or if he is required to seek alternative employment.

182. Taking those factors into account, I consider that in such circumstances the most appropriate method by which to assess the plaintiff’s future loss of earning capacity is to award a lump sum buffer amount that takes all of the above factors into account: Penrith City Council v Parks [2004] NSWCA 201; State of NSW v Moss [2000] NSWCA 133, (2000) 54 NSWLR 536; Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13.

183. Having regard to all of those imponderables, I consider the fair and proper amount of such a buffer in this case is the sum of $375,000. I therefore assess the future economic loss component of the plaintiff’s damages at $375,000.

Past loss of superannuation

184. On behalf of the plaintiff it was submitted that past superannuation should be assessed on the conventional basis of 11 per cent of $360,060, representing 11 per cent of $164,325 plus the past gross weekly payments of $195,735, namely $39,606. The defendant made no counter-submissions.

185. The difficulty with the plaintiff’s submission is that it glosses over the differing net and gross components of the aggregate sum. Those components require separate assessment because they are based on different gross and net portions of the plaintiff’s income that would attract employer funded superannuation benefits: Zhang v Golden Eagle International Trading Pty Ltd & Ors [2006] NSWCA 25, at [60] – [63].

186. On the net component of past loss of income of $164,325, in accordance with authority, the loss of superannuation is assessed at 11 per cent of that amount, namely $18,075.

187. On the gross component of $196,735 being the weekly payments of workers’ compensation payments, in accordance with authority, the superannuation loss is assessed at 9 per cent of that amount, namely $17,616.

188. The aggregate of those two amounts is $35,691. I therefore assess the plaintiff’s damages for past loss of superannuation in the amount of $35,691.

Future loss of superannuation

189. The plaintiff submitted, without demur from the defendant, that the appropriate assessment percentage for identifying the amount of future loss of superannuation is 13 per cent of the amount assessed for future loss of earning capacity, namely $375,000. I therefore assess the plaintiff’s damages for future loss of superannuation in the amount of $48,750.

Fox v Wood

190. The parties have agreed that the plaintiff has paid a total of $24,000 in tax on his past weekly payments of workers’ compensation. I therefore assesses the Fox v Wood component of the plaintiff’s damages at $24,000.

Summary of damages assessment

191. My assessment of the plaintiff’s damages is summarised as follows:

(a) Past economic loss	$164,325
(b) Future economic loss	$375,000
(c) Past loss of superannuation	$35,691
(d) Future loss of superannuation	$48,750
(e) Fox v Wood	$24,000
Total	$647,766

Disposition

192. The plaintiff is entitled to a verdict and judgment in his favour in the amount of $647,766 without discount for alleged contributory negligence.

Costs

193. As the plaintiff has succeeded in the proceedings, he is entitled to have his costs of the proceedings paid by the defendant on the ordinary basis unless a party is able to show an entitlement to some other costs order.

Orders

194. I make the following orders:

1. Verdict and judgment for the plaintiff in the sum of $647,766;

2. The defendant is to pay the plaintiff’s costs on the ordinary basis unless otherwise ordered;

3. The exhibits may be returned;

4. Liberty to apply on 7 days’ notice if further or other orders are required.

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Decision last updated: 24 July 2015