Islam v Linfox Australia Pty Ltd

[2024] NSWCA 39

Court of Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Islam v Linfox Australia Pty Ltd [2024] NSWCA 39

Hearing dates:

12 October 2023

Date of orders:

29 February 2024

Decision date:

29 February 2024

Before:

White JA at [1];
Simpson AJA at [2];
Basten AJA at [126]

Decision:

1   Dismiss the appeal from the judgment and orders of the District Court.

2   Order that the appellant pay the costs of the appeal of both respondents.

Catchwords:

NEGLIGENCE – claim for work injury damages for back condition – challenges to factual findings – whether breach of duty of care – whether injury caused by employment

COSTS – claim for work injury damages against employer and third party – application of Workers Compensation Regulation 2016 (NSW), Pt 17 Div 3

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 98

Workers Compensation Act 1987 (NSW), ss 66, 151Z

Workplace Injury Management and Workers Compensation Act 1998 (NSW), ss 250, 337, 346

Uniform Civil Procedure Rules 2005 (NSW), rr 36.16, 42.1, 42.2

Workers Compensation Regulation 2016 (NSW), cll 91, 94, 95, 96, 97, Sch 7

Cases Cited:

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22

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

Lee v Lee (2019) 266 CLR 129; [2019] HCA 28

Robinson Helicopter Co Inc v McDermott [2016] HCA 22; 90 ALJR 679

Smith v Sydney West Area Health Service (No 2) [2009] NSWCA 62

Synergy Scaffolding Services Pty Ltd v Alelaimat [2023] NSWCA 213

Category:

Principal judgment

Parties:

Mohammad Saiful Islam (Appellant)
Linfox Australia Pty Ltd ACN 004718647 (First Respondent)
Local Logistics Pty Ltd (Second Respondent)

Representation:

Counsel:
A D Campbell / L D Robison (Appellant)
DA Lloyd SC / S Andrews (First Respondent)
D Stanton / W Bruffey (Second Respondent)

Solicitors:
Kingsley Lawson Lawyers (Appellant)
Maurice Marshan (First Respondent)
Bartier Perry (Second Respondent)

File Number(s):

2022/354320

Publication restriction:

N/A

 Decision under appeal 

Court or tribunal:

District Court of NSW

Jurisdiction:

Civil

Date of Decision:

28 October 2023

Before:

S J Gibb DCJ

File Number(s):

2019/203820

HEADNOTE

[This headnote is not to be read as part of the judgment]

The appellant, Mr Islam, was employed as a delivery driver by the second respondent, Local Logistics Pty Ltd (“Local Logistics”), who assigned his services to the first respondent, Linfox Australia Pty Ltd (“Linfox”). Linfox provided home delivery services for Woolworths, a supermarket chain.

On 13 November 2017, the appellant was directed to make a delivery to domestic premises in Vaucluse. The delivery was large in size and required the appellant to navigate a 75-step stairway 11 times. The appellant called his supervisor at Linfox and, after a conversation, completed the delivery.

In December 2017 the appellant consulted his general practitioner complaining of lower back pain radiating to his left lower leg. He subsequently made a successful claim for compensation under the Workers Compensation Act 1987 (NSW) by reason of a work injury deemed to have happened on 13 November 2017.

In July 2019, he commenced proceedings against Linfox and Local Logistics seeking damages for negligence at common law. He asserted that Linfox breached its duty of care by requiring him to proceed with the Vaucluse delivery, in spite of what he alleged were protestations made on the telephone call to his supervisor that he feared it would cause him injury, and that it had, in fact, caused his back injury. In the alternative, he asserted that his back injury had accumulated over time by reason of Linfox’s negligent failure to monitor his ability to work safely. This secondary claim was primarily based on evidence from an ergonomist, who identified preventative measures that he considered could have been taken by Linfox to avoid accumulated harm to the appellant. The appellant further claimed that, by reason of those facts, Local Logistics was in breach of a non-delegable duty of care that it owed to him as his employer.

Although the respondents also qualified an ergonomist to advise, no report from him was tendered in evidence. The two ergonomists met in conclave and produced a joint report, the bulk of which the primary judge rejected as inadmissible.

Each proceeding was dismissed. The primary judge made adverse findings about the appellant’s credibility as a witness, rejected his account of conversations with his supervisors at Linfox and Local Logistics (including on 13 November 2017), gave no weight to the evidence of the plaintiff’s ergonomist and dismissed the claims. Her Honour made contingent findings with respect to damages, contributory negligence and apportionment between the respondents.

On appeal, the appellant challenged the factual findings made by the primary judge, including as to the content of the telephone call made prior to the Vaucluse delivery. He also challenged conclusions with respect to breach, causation, contributory negligence and the assessment of damages, and her rejection of the evidence of the ergonomists in their joint report. He also claimed that the primary judge erred in awarding costs pursuant to the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”).

The Court (Simpson AJA, White JA and Basten AJA agreeing) held, dismissing the appeal:

1. The primary judge’s factual findings were not only dependent on the judge’s assessment of the credibility of various witnesses, but were consistent with the evidence. Accordingly, there was no basis for the Court to interfere with those findings: [62]–[72].

   Fox v Percy (2003) 214 CLR 118; [2003] HCA 22; Robinson Helicopter Co Inc v McDermott [2016] HCA 22; 90 ALJR 679; Lee v Lee (2019) 266 CLR 129; [2019] HCA 28, applied.

2. A finding by the primary judge that there was no reliable evidence of a causal connection between the nature of the appellant’s work and his medical condition was an overstatement, but there was no error in her Honour’s conclusion that causation was not established: [73]–[85]. The appellant failed to identify error in the primary judge’s reasoning as to breach of duty: [86]–[91].

3. The primary judge was correct to reject the majority of the ergonomists’ evidence in their joint report, which was plainly inadmissible because it concerned matters that were solely for the primary judge to determine, based on admissible evidence: [92]–[97].

4. The appellant’s challenge to the primary judge’s conclusions of contributory negligence depended on his establishing that factual findings made by the primary judge were erroneous. As he had not done so, that ground of appeal should be dismissed: [99]–[100].

5. The challenge with respect to the primary judge’s contingent assessment of damages lacked specificity, and should be rejected: [101]–[102].

6. The primary judge erred in making an award of costs pursuant to the UCPR. In claims for work injury damages, the power to award costs and the limits on that power are to be found in Pt 17, Div 3 of the Workers Compensation Regulation 2016 (NSW). However, contrary to the applicant’s submissions, none of the limitations in that Division applied. Clause 95(2) explicitly provides that where a claimant fails to obtain an order or judgment on a claim, the court is to order that the claimant pay the insurer’s costs assessed on a party and party basis. Accordingly, although the primary judge identified an inapplicable statutory provision as authorising the costs order she made, the order itself was correct: [103]–[123].

   Smith v Sydney West Area Health Service (No 2) [2009] NSWCA 62, followed.

Judgment

1. WHITE JA: I agree with Simpson AJA.

2. SIMPSON AJA: In 2019 the appellant, Mohammad Islam, commenced proceedings in the District Court claiming damages for personal injury which he asserted was negligently caused by the conditions of his employment. The appellant named Linfox Australia Pty Ltd (“Linfox”) as first defendant and Local Logistics Pty Ltd (“Local Logistics”) as second defendant. The trial took place in the District Court in August and September 2022. On 28 October 2022 Gibb DCJ (“the primary judge”) dismissed both claims with costs. The appellant now appeals against those orders. There is no issue that the appeal is as of right: Supreme Court Act 1970 (NSW), s 101(2)(r).

Background

3. The appellant was born in December 1988 in Bangladesh where he completed high school and began studying for an accountancy degree. In 2007 at the age of 18 or 19, he immigrated to Australia. He was granted citizenship in 2017. After undertaking various forms of employment, in June 2016 he took up employment working as a delivery driver for Local Logistics (a transport company) which provided trucks and drivers to clients. Local Logistics assigned the appellant to Linfox, with whom it (Local Logistics) had contracted to supply delivery drivers. Linfox provided home delivery services for a major supermarket chain, Woolworths. It operated out of Woolworths’ premises in Coward Street, Mascot. The system of work under which Local Logistics (and the appellant) worked was designed and controlled by Linfox.

4. The appellant worked on a regular but casual basis in that capacity until November 2017. The system of work required him to report to the Coward Street premises and to complete a “Pre Start Check – Fit for Duty” form. This involved a check of the vehicle to be used and the provision of some personal information. The information required included confirmation:

“I am not fatigued or suffering any medical condition (that I am aware of) that may affect my ability to drive or complete my allocated tasks”

and

“I am fit to undertake my allocated tasks.”

The appellant consistently completed the form by providing that confirmation.

5. At the end of the shift the appellant was required to complete a Time Sheet. As might be expected the Time Sheet recorded commencement and finishing times and made provision for comments.

6. From August 2017 the appellant suffered some discomfort in his back and left leg for which he received physiotherapy. On 30 August he consulted his general practitioner complaining of pain in the left buttock and left lower back. The general practitioner diagnosed lower back strain and prescribed a medication called Mobic. The appellant again consulted the general practitioner from time to time thereafter.

7. On 13 November 2017 (a Monday) the work assigned to the appellant included deliveries to Vaucluse. After completing the “pre-Start Check – Fit for Duty” form by confirming his fitness, the appellant made a number of deliveries in the Vaucluse area. One delivery was to domestic premises, access to which was via a stairway from street level, it being ultimately agreed that the stairway was 75 steps. There were also internal steps to be negotiated. The delivery was large in size (16 boxes) involving many heavy loads of, for example, cases of beer and water. The total delivery required the appellant to negotiate the stairway 11 times.

8. The appellant telephoned Pablo Carvajal. Mr Carvajal was a supervisor at Linfox. There was a significant dispute as to the content of the conversation that then took place, to which it will be necessary to return. It was common ground, however, that Mr Carvajal had told the appellant to continue with and complete the delivery. The appellant completed that delivery, and three further deliveries, and returned to the Coward Street base. He completed his time sheet in which, under “Comment”, he recorded:

“My delivery shift delayed because of light traffic, unavailable parking, customer unloading delay, customer sleeping, school jone [sic – zone], roadworks. On my drop number 5, customer had lots of downhill stairs. Without any help from customer it took 1 hours to finish the drop. On my drop number 6 customer house is top of hill. Their [sic] was roughly 130 stairs to climb. This drop was very risky as most of the goods was heavy. It took 1 and half hour finish. Next time if I get this drop, I won’t deliver.”

9. The appellant continued to work for the remainder of the week, until Sunday 19 November. He then asked for two weeks off work. The appellant undertook a security course during that time.

10. On 6 December 2017 the appellant again consulted his general practitioner complaining of low back pain radiating to his left lower leg. The general practitioner again prescribed Mobic, and referred the appellant for a CT scan. The CT scan showed some narrowing of disc spaces and mild degenerative change. The appellant again saw his general practitioner on 8 December. On that occasion the general practitioner recorded that the appellant was a delivery driver who said that he had injured his lower back at work while carrying heavy boxes or bags of groceries.

11. The appellant made a claim for lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (NSW) in 2019. On 5 September 2019, a Medical Assessor (Dr Ian Meakin) issued a certificate to the effect that the appellant suffered 15 per cent whole person permanent impairment resulting from a work injury deemed to have happened on 13 November 2017. An application by Local Logistics (or its insurer) for reconsideration of the certificate was refused.

The appellant’s case at trial

12. On 1 July 2019 the appellant commenced the present proceedings. His claim was ultimately formulated in a Further Amended Statement of Claim (“FASoC”) filed on 24 December 2020 in which Linfox and Local Logistics were named, respectively, as first and second defendants. Each claim was a claim in negligence at common law, although the claims were governed by different statutory regimes. The claim against Linfox was governed by the Civil Liability Act 2002 (NSW); the claim against Local Logistics by Pt 5 of the Workers Compensation Act. In each case the appellant pleaded his claim in the alternative. The claim against Linfox was expressed as follows:

“7.   From on or about 2 July 2016 to 13 November 2017, as a result of the nature and conditions of the plaintiff’s work with the defendants, the plaintiff suffered serious injury loss and damage.

8.   Further and or in the alternative to the facts pleaded in paragraph 7, the plaintiff suffered serious injury loss and damage whilst making a delivery for the defendants on 13 November 2017.”

13. The pleadings in pars 7 and 8 were replicated in paragraphs 15 and 16 as against Local Logistics. In a separate statement, the injury was particularised as an injury to the lower part of the back and injury to the left leg.

14. Linfox and Local Logistics filed defences, each denying liability and (inter alia) pleading that the appellant was contributorily negligent. Each filed a cross-claim against the other, claiming indemnity or contribution for any award of damages against it, under s 5 of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) and, in the cross-claim by Local Logistics, s 151Z of the Workers Compensation Act.

15. Despite the sequence in the pleading, it was the events of 13 November 2017 that were the foundation for the appellant’s primary claims. The appellant asserted that, in requiring him to complete the Vaucluse delivery, Linfox (through Mr Carvajal) was in breach of the duty of care it undoubtedly owed him, and that Local Logistics, as his employer, also carried liability for that breach. It was the appellant’s alternative, or secondary, case that, over a period of time, the cumulative nature and conditions of his work were the cause of his back condition.

16. Notwithstanding the different statutory regimes applicable to the claim against Linfox and that applicable to the claim against Local Logistics, in each case it was necessary that the appellant establish:

1. that the respondent owed him a duty to take reasonable precautions against a foreseeable and not insignificant risk of harm;

2. that the respondent was in breach of that duty; and

3. that, by reason of the respondent’s breach of duty, the appellant suffered harm.

   17. Neither respondent disputed that it owed the appellant a relevant duty. The appellant identified the relevant risk of harm as the risk that he would suffer a back injury if the respondents (or either of them) failed to implement a safe system of work. Neither respondent quibbled with that identification of the risk of harm. Linfox expressly accepted it. Nor did either respondent dispute that the appellant suffered a debilitating back condition (although the degree of disability was contentious); nor did they dispute that back injury was a reasonably foreseeable and not insignificant potential consequence of a failure to take reasonable precautions.

   18. The issues that arose for initial determination in each case were (i) whether the respondent was in breach of its duty; and, if so (ii) whether any such breach caused injury to the appellant. Other issues depended on the outcome of those matters.

   19. In the FASoC the breaches of duty asserted by the appellant were pleaded in general terms. As finally presented, as against Linfox, the appellant’s case was that, in requiring him to proceed with the Vaucluse delivery on 13 November 2017, in spite of protestations by him that he feared that it would cause injury to him, and in spite of his communication with Mr Carvajal, Linfox (through Mr Carvajal) was in breach of its duty and that a reasonable person in Linfox’s (Mr Carvajal’s) position would have told him to cease the delivery, or have provided him with assistance.

   20. On the alternative, secondary, case against Linfox, the appellant’s position was that his back injury had accumulated over time, and that Linfox had failed to monitor his ability to work safely, other than in an initial period of training. The appellant did not articulate the nature of the monitoring he proposed; nor did he articulate what monitoring would have revealed; nor did he articulate what precautions (if any) should have been taken in response to what was revealed by monitoring. One distinct possibility is that, had monitoring (by whatever means) revealed a weakness in his back, or a vulnerability to injury from the nature of his delivery work, then, unless alternative work was available, his employment may well have been terminated. It is not to be overlooked that his employment was casual. The appellant did not assert that prior to 13 November 2017 he had made any relevant complaints of pain to any employee of Linfox.

   21. The appellant accepted that Local Logistics was not directly involved in the events of 13 November, and therefore bore significantly less responsibility than Linfox, something that would be resolved by the cross-claims (an issue in which the appellant was not directly involved, although the outcome may have affected his recovery of damages: see Workers Compensation Act, s 151Z). The appellant nevertheless maintained that, as employer, Local Logistics did not discharge its duty of care with respect to the provision of a safe system of work by employing an independent contractor, in this case Linfox, to manage that aspect of its business. It would remain liable if the system employed by Linfox did not in fact satisfy the duty: Kondis v State Transport Authority (1984) 154 CLR 672; [1984] HCA 61 (“Kondis”); Synergy Scaffolding Services Pty Ltd v Alelaimat [2023] NSWCA 213 at [95]–[128]. The appellant also contended that it was reasonably foreseeable to Local Logistics that he might suffer injury at a difficult delivery site, particularly so against a background of complaints of pain beforehand. He asserted that, prior to 13 November 2017, he had told Mr George Kollaras (a director of Local Logistics) that he was suffering discomfort in his back and that he had asked Mr Kollaras what he should do about it. The appellant thus sought, on Kondis principles, to make Local Logistics liable for what he asserted to be Linfox’s breach of duty with respect to the 13 November incident.

   22. On his alternative case against Local Logistics, as with Linfox, the appellant contended that, in breach of its duty, Local Logistics had failed to monitor his manner of work. Again, there was no articulation of the nature of the monitoring, of what monitoring would have revealed, or of what (if any) precautions ought to have been taken by way of response to whatever was revealed.

The trial

23. The trial commenced on 22 August 2022 and proceeded over nine days.

The appellant’s statement – 8 February 2018

24. Admitted into evidence was a statement made by the appellant on 8 February 2018 in relation to his claim under the Workers Compensation Act and a supplementary statement dated 28 August 2019. In his first statement the appellant gave his account of the conversation between himself and Mr Carvajal on 13 November 2017. The appellant said that when he arrived at the Vaucluse property he observed the stairs to the property and checked to see if there were other access points (there were none). He said that he estimated that it would take 11 trips to make the delivery, which involved “sixteen or so boxes”. He said that he knew that he would not be able to do this delivery without hurting himself and so he called the Woolworths Customer Service Line to ask if there were other access points, or if there was someone in the house to assist him. He was told that there was no other access and the customer would not be able to assist in the delivery. He was told to complete the delivery himself. He repeated that he was not able to do the delivery as he would hurt himself and was transferred to Linfox where he spoke to Mr Carvajal. The appellant’s account of what followed was:

“41.   Pablo [Carvajal] asked what was going on and he said he had received a call from Woolworths that I did not want to do the delivery. I explained what had happened and that I was unable to do the delivery as I was worried I would hurt myself. I explained that I had already done a large delivery that day of 30 trips to one location [giving the address] and I could not continue with the delivery at [Vaucluse] due to the access to the property. I sent photographs of the address to Pablo so he could see. Pablo then said to do the delivery but to take my time and do it slowly. He said he understood now he saw the photographs. He said I would get overtime for the extra time. I said it was not the money or the time and that it was risky for my health. Pablo just directed me to do the delivery regardless.

42.   I had no other choice but to do the delivery and I did so slowly. I claimed overtime of approximately one hour for this.”

25. The appellant said that after he finished the delivery he felt “significant pain” and called Mr Kollaras to let him know what had happened, and emailed photographs to him. He said that Mr Kollaras said that he would speak to Linfox but did not again contact the appellant about the matter.

26. The appellant said that, on his return to Coward Street he spoke to Mr Kollaras and another man who took him to the Linfox office where Mr Carvajal was. He said that he had an argument with Mr Carvajal about having to go ahead with the delivery. This was in the presence of Mr Kollaras.

27. The appellant said that that night he was unable to sleep properly because of pain (in his back) and that he was medicating with Panadol.

28. The appellant said that he continued to work for the remainder of the week, and, on Friday 17 November, he spoke to Mr Kollaras and told him that he needed to take off at least two weeks, possibly more, so he could recover. (This is to be contrasted with the evidence of Mr Kollaras, who said that the appellant asked for time off to do a security course). The appellant said that he wanted to see if the pain decreased with time, and that he worked his final shift on Sunday 19 November as usual. It was a light delivery and he completed it as required. His pain continued to increase and he was taking more Panadol each day, although it became less effective. The appellant said that he had been unable to return to work since.

The appellant’s oral evidence

29. The appellant gave oral evidence to similar effect. Earlier in the statement the appellant said that, after he began experiencing pain in August 2017, he spoke to Mr Kollaras, hoping that he would help and tell the appellant what to do. He said that he told Mr Kollaras that the pain was happening at the end of each shift. He said that Mr Kollaras told him to get some physiotherapy.

30. The appellant did not repeat this in his evidence in chief, but, in cross-examination, he maintained that he had told Mr Kollaras about the pain.

Mr Carvajal’s oral evidence

31. In cross-examination the appellant said that, commencing on Monday 20 November 2017 he had done a two week security course at Granville. He said that this was unplanned, and instigated by his wife who was concerned about the nature of his work.

32. The account of the conversation with the appellant given by Mr Carvajal in oral evidence was different. He said that he received a call from the Woolworths Customer Hub about the appellant not being able to complete the shift. The Woolworths employee could not understand what the appellant was saying and so Mr Carvajal contacted the appellant directly. Mr Carvajal said that the appellant told him that he could not do the delivery because there were too many stairs so Mr Carvajal asked him to send a photograph, which the appellant did. Mr Carvajal said that he did not deem the stairs to be unsafe so he asked the appellant to “‘do the delivery in a safe manner, take your time, and not use the totes at the time’, just actually carry the bags in his hands”. (“Totes” are, apparently, baskets that can be carried on a trolley or close to the body). Mr Carvajal denied having an argument with the appellant that day.

Mr Kollaras’ oral evidence

33. Mr Kollaras denied having been present when the appellant returned from his shift and spoke to Mr Carvajal.

34. Mr Kollaras also denied that, prior to 13 November 2017, the appellant had spoken to him about having a problem with his back or about any difficulty he was experiencing in undertaking his work. Mr Kollaras agreed that he had advised the appellant to have physiotherapy, for which Local Logistics would pay, but said that this was in relation to pain the appellant was suffering in his hand and elbow.

Medical evidence

35. It was not in issue that the appellant suffered spinal nerve root compression due to disc prolapse. The appellant underwent surgery on 9 May 2018.

36. The medical issue was whether the disc prolapse was attributable to the incident on 13 November 2017, or to the accumulated effect of the lifting work the appellant had been doing while in the employment of Local Logistics, or to both or neither of those circumstances. A large volume of medical evidence was tendered.

37. The appellant relied (inter alia) on several medical reports of an orthopaedic surgeon, Dr James Bodel, who first examined the appellant for medico-legal purposes at the request of his solicitors on 21 May 2019 (a year after the spinal surgery). In the history he took, as recounted in his first report (dated 16 June 2019) Dr Bodel recorded that, following the incident of 13 November 2017, the appellant took “sick leave for about two weeks because of the persisting levels of pain” and that he was having great difficulty sleeping. In subsequent reports (18 February 2021 and 2 March 2022) Dr Bodel repeated that history. Omitted from Dr Bodel’s history was that the appellant had, in the two weeks following 19 November 2017, undertaken a security course.

38. The respondents relied on several reports of Associate Professor Paul Miniter, also an orthopaedic surgeon, who first examined the appellant on 25 October 2019.

39. The differences in the opinions of the two specialists, expressed in their successive reports between 2019 and 2021, were stark. Dr Bodel accepted throughout that the appellant had suffered a disc injury “as a result of an injury that occurred at work on 13 November 2017.”

40. A/Prof Miniter accepted that the appellant had “left-sided L4/5 disc prolapse with L5 nerve root compression”, but was highly sceptical of his presentation, which he considered to be “non-genuine” (20 April 2021), and considered that he exhibited “abnormal illness behaviour”. A/Prof Miniter twice commented on the fact that the appellant’s wife was also in receipt of Workcover benefits. The relevance of this to his assessment of the appellant was not explained.

41. Specifically in relation to the cause of the appellant’s condition, Dr Bodel maintained that there was a causal link with the incident of 13 November 2017 (report of 2 March 2022); A/Prof Miniter was of the opinion that there was no causal connection (report of 20 April 2021).

42. On 21 July 2022 the specialists met in conclave, following which they prepared a joint report. The differences of opinion remained. A/Prof Miniter considered that the history provided to him did not clearly indicate an injury on 13 November 2017; rather, that the appellant had spoken of a gradual increase in symptoms over a period of time. Dr Bodel was of the view that “some additional damage occurred to a degenerate L4-5 disc as a result of the nature of the day’s work on 13 November 2017”.

43. Dr Bodel maintained his view that there was a “direct causal link between the nature and conditions of [the appellant’s] work on 13 November 2017 and the increased symptomatology at the L4-5 level as a result of the work on that day”; A/Prof Miniter “was not convinced that there was a specific incident on … 13 November 2017” and could see “no frank incident that is responsible for the presentation on the day of 13 November 2017.” (There was, in fact, no medical presentation on 13 November, and it is not clear what A/Prof Miniter was referring in this passage.)

Oral evidence

44. Dr Bodel and A/Prof Miniter gave oral evidence concurrently. At the commencement of cross-examination by senior counsel for Linfox, one page of assumptions was handed to the witnesses on the basis of which they were to be asked to express opinions. The assumptions included that the appellant had had pain in his back and left leg at the start of his shift on 13 November, but did not suffer any event of severe pain during the Vaucluse delivery, and that the pain that he suffered during the delivery was no different than that he had suffered at the commencement of his shift, and that the appellant suffered no back or left leg pain that evening different from that he had experienced before the delivery.

45. Dr Bodel was then asked to assume:

“… that [the appellant] made no report of any event of severe pain during the Vaucluse delivery after work or the following morning; no report to anyone associated with his workplace”

and was asked whether (on that assumption) his previously expressed opinion was affected, to which he replied “Yes”. However, he did “not entirely” resile from the earlier expressed medical opinion. He thought that his opinion would “probably not” be different if he substituted the assumption put to him, but accepted that the absence of any complaint of pain would at least be a factor that might cause him to question his expressed opinion.

46. Dr Bodel was then asked about the various histories he had recorded, in each of which he had noted that the appellant had continued to work until 19 November but had stopped because of the pain and taken sick leave only (with no reference to the security course the appellant had undertaken in that time). He was asked if it would make a difference to his opinion if, instead of taking sick leave, the appellant had undertaken a two week course, to which Dr Bodel replied:

“Well, if he says he goes off on sick leave because of back pain – excruciating back pain, that’s what I accepted. If he’s done something else it makes a huge difference, yes.”

Dr Bodel said that attendance at a two-week course, if it occurred, made the events of 13 November 2017 “less relevant” and that he would be surprised if the appellant had been able to undertake such a course if he was in as much pain as he had said he was. He agreed that the effect of the assumption put to him (if correct) was that it “erodes … significantly” any ability to link the appellant’s disc damage to anything that happened on 13 November 2017.

Expert evidence

47. The appellant relied on two reports of an ergonomist, Mr N Adams. Based on information provided to him, Mr Adams identified Cumulative Trauma Disorder as the cause of the appellant’s back condition and nominated a number of preventative measures (or precautions) that he considered could have been taken by the respondents in order to avoid accumulated harm to the appellant. Relevantly to the events of 13 November Mr Adams considered that drivers required to deliver heavy loads or make deliveries to awkward sites could have been provided with the assistance of an “offsider”.

48. In his second report Mr Adams stated the opinion, again based on information with which he had been provided, that routine lifting and carrying of numerous loads would impose potentially injurious strains on the appellant’s musculoskeletal system. Mr Adams’ reports were admitted into evidence.

49. It appears that the respondents also retained an expert, Mr Glen Smith, although no report of Mr Smith is contained in the materials before this Court.

50. On 27 July 2022 the two experts met in conclave and provided a joint report. To a large extent the content of the report was excluded by the primary judge, who considered that the opinions therein expressed intruded into areas for her determination.

The primary judgment

51. The primary judge took a highly adverse view of the appellant’s credibility. For example, while, in the opening of the judgment, her Honour described the appellant as “a personable, intelligent, and motivated young man, keen to advance himself and to do his best for his growing family” and “a rather naïve and stoic young man doing his best to earn an income in a difficult position with increasing pain in his back and leg”, she added:

“… his evidence was overlaid with internal inconsistencies, exaggeration, fabrication, and omission, and often was implausible.”

She considered that the appellant was an unreliable witness with “poor, often wrong recollections of events and no credit” and “whose evidence was … tainted by inconsistency, omission, fabrication, and falsehood”. She was not prepared to accept his evidence unless it was corroborated by other reliable evidence or contemporaneous documents.

52. By contrast, her Honour found Mr Carvajal to be “an entirely reliable, honest and frank witness”. She made a similar finding about Mr Kollaras.

53. The primary judge rejected the appellant’s account of the conversations with Mr Carvajal and Mr Kollaras and wholly accepted the evidence of each of those witnesses. Her Honour found, positively (and in contradiction of the appellant’s evidence) that the appellant did not tell Mr Carvajal that he was afraid that he might hurt himself if he completed the Vaucluse delivery. She found positively (again in contradiction of the appellant’s evidence) that he made no complaints of pain to Mr Kollaras.

54. The primary judge noted that the appellant’s evidence in this last respect was corroborated by no-one, and that it was contradicted, not only by Mr Carvajal and Mr Kollaras, but also by contemporaneous documents created by the appellant himself. (This last may be taken to be a reference to the daily “Pre Start Check – Fit for Duty” forms, which the appellant consistently completed by denying that he was fatigued or suffering any medical condition of which he was aware that might have affected his ability to drive or complete his allocated tasks, and confirmed that he was fit to undertake more tasks).

55. As the appellant’s primary case was founded on what he claimed to have been his protest to Mr Carvajal that proceeding with the Vaucluse delivery was likely to cause him injury, her Honour’s rejection of the factual underpinning inevitably resulted in rejection of that case. Moreover her Honour said that she did “not form the view that it was reasonably foreseeable from the defendant’s point of view that this delivery was any more or less dangerous than any other delivery.”

56. Her Honour also rejected the appellant’s alternative case, that the respondents (each individually) ought to have monitored his health. That case was based predominantly, if not entirely, on the reports of Mr Adams. To the extent that Mr Adams expressed an opinion about the cause of the appellant’s condition, the primary judge considered it inadmissible, and gave it no weight.

57. In essence, rejection of the appellant’s alternative case appears to have been at least in part based on the “Pre-Start Check – Fit for Duty” forms, in which the applicant failed to disclose any pre-existing pain or discomfort. The primary judge found that the appellant’s claim failed “in whole” and therefore determined to enter judgment for the respondents “jointly and severally” as against the appellant. As a consequence, her Honour dismissed each of the cross claims as not arising. She ordered that the appellant pay the costs of each of the respondents “jointly and severally in respect of the whole of the proceedings (i.e. including the cross-claims) [in] accordance with the Uniform Civil Procedure Rules [2005 (NSW)]” (“UCPR”), and allowed 14 days for any party to apply for variation of the costs orders in accordance with UCPR r 36.16(3A).

58. Against the possibility that this Court might take a different view on the liabilities of either or both of the respondents her Honour moved to questions of damages, contributory negligence, and apportionment between the respondents, each of which she determined contingently. Although she addressed at length the various heads under which the appellant claimed damages, and quantified the amounts she would have ordered, she did not reach a final figure. Of course, having regard to the different statutory regimes, the ultimate award of damages against each respondent would have been different.

59. Her Honour found that Linfox’s claim for contributory negligence was inadequately particularised and declined to propose any contingent order in its favour. In the case of Local Logistics, her Honour assessed contributory negligence at “75% to 90%, if not higher”. This was on the basis of the appellant’s failure to disclose to Local Logistics that he was suffering back pain.

60. Her Honour accepted that apportionment between the respondents would depend on findings that she did not make. She looked at various scenarios on the basis that the Vaucluse delivery had caused injury to the appellant and involved a relevant breach of duty, and assessed contribution on each of those scenarios. She considered that, if the Vaucluse delivery did not cause injury to the appellant but the nature and conditions of his employment involved a relevant breach of duty (and caused injury) then Local Logistics should carry 100% responsibility.

The appeal

The grounds of appeal

61. The grounds of appeal are pleaded as follows:

“1.   Her Honour erred in making the following findings of fact:

a.   The Appellant said nothing to either Mr Carvajal or Mr Kollaras about any relevant pain or injury before December 2017.

b.   The Appellant did not tell Mr Carvajal that he feared he might hurt or injure himself on the [Vaucluse] delivery.

where such findings were glaringly improbable and contrary to compelling inferences in the case.

2.   Her Honour erred in finding that there was no reliable evidence to establish that the Plaintiff’s medical condition was, on the balance of probabilities, caused by the nature of his work (s 5D [Civil Liability Act]) and thereby erred in failing to find causation established.

3. Her Honour erred in failing to find the Defendants were in breach of their duties of care to the Plaintiff (s 5B and s 5C of the Civil Liability Act …).

4.   Her Honour erred in finding the Plaintiff guilty of contributory negligence.

5.   Her Honour erred in the assessment of damages.

6.   Her Honour erred in rejecting as inadmissible the liability of [sic] conclave report.

7.   Her Honour erred in awarding costs pursuant to the Uniform Civil Procedure Rules 2005 [sic] the claim against [Local Logistics].”

62. For the following reasons, each ground should be rejected and the appeal dismissed.

Ground 1

63. It is well established that, in order to disturb a finding of fact made by a trial judge, an appellant confronts a high hurdle where the finding is based on or affected by the judge’s assessment of a witness’ credibility and reliability: Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [29]; Robinson Helicopter Co Inc v McDermott [2016] HCA 22; 90 ALJR 679; Lee v Lee (2019) 266 CLR 129; [2019] HCA 28 at [55].

64. The assertion in the suffix to ground 1 as pleaded, that the findings of which complaint is made are “glaringly improbable and contrary to compelling inferences”, is drawn from the reasoning of the High Court in Fox v Percy.

65. Two distinct findings of fact are impugned by ground 1. The first concerns any complaint of back pain made by the appellant either to Mr Carvajal or Mr Kollaras about any relevant pain or injury before December 2017. There was, in fact, no evidence that the appellant had complained to Mr Carvajal of back pain prior to December 2017, and only very limited evidence that he had made any such complaint to Mr Kollaras. The appellant’s own evidence was limited and confused. In cross-examination the appellant accepted that, in his statement, he said that in December 2017 his doctor had told him he could not continue with the work he was doing. He said that he did not accept that opinion and that:

“… every shift before I start I was feeling 100% okay for the job … Before the shift I started, I’m feeling okay, at the time I did because I am having enough rest, I was sleeping, no pain, and when I starting the job on pre-start, okay I’m fit for the job.”

66. He said that it was only at the end of the shift that he was in pain, and he did not take the doctor’s advice seriously. When asked about his answers on the “Pre-Start Check – Fit for Duty” form, the appellant said:

“That pain I’m mentioning here when I fill the truck with all the totes, on that time before I stop driving the truck I feel the sort of pain on the time in there. I feel the pain and other things. But it wasn’t, I didn’t feel that I can’t drive, I can’t work. I feel myself fit for work. It’s my own justification.”

67. It is unlikely, in those circumstances, that the appellant would have told Mr Kollaras that he was suffering back pain, at least in any way that might have alerted Mr Kollaras to any need to monitor the appellant’s health or modify his work.

68. The submissions in support of the challenge to this finding are also confused. Reference was made to evidence given by the appellant that he had spoken to other Local Logistics employees about his back discomfort, and the finding by the primary judge that the appellant was “a rather naïve and stoic young man doing his best to earn an income in a difficult position with increasing pain in his back and leg.” It was submitted that:

“In those circumstances the fact that the Appellant did not specifically claim that he had suffered a back injury at work is easy to understand.”

The most obvious way of reading that submission is as an acceptance that the appellant had indeed not complained to Mr Kollaras of back pain.

69. Notwithstanding that submission, it was then submitted that:

“In circumstances where the Appellant gave no evidence about pain or discomfort in any part of the body other than his back the only finding reasonably open on the evidence is that he did complain to Mr [Kollaras]. It makes no sense that he was seeing doctors and physiotherapists but keeping silent about his issues at work.”

It is difficult to see the logical connection between the two propositions. In any event, the submission cannot be accepted. It is plain that the appellant was keen to retain his employment. He consistently asserted, at the commencement of every shift, that he was not suffering from any medical condition of which he was aware that might affect his ability to drive or to complete his allocated tasks, and that he was fit to undertake his allocated tasks.

70. The finding of the primary judge was not only one that was open to her, it was entirely consistent with the evidence.

71. The second finding of fact challenged under ground 1 is that the appellant did not, in the conversation on 13 November 2017, tell Mr Carvajal that he feared that he might hurt or injury himself in the Vaucluse delivery.

72. There was a clear conflict in the evidence between the account given by the appellant, and the account given by Mr Carvajal. The primary judge accepted the account given by Mr Carvajal, who she found to be “entirely reliable, honest, and frank”. No basis has been advanced on which this Court could or should interfere with that finding.

73. Ground 1 of the appeal should be rejected.

Ground 2

74. By ground 2 the appellant challenges the finding by the primary judge that there was no reliable evidence to establish that the appellant’s medical condition was caused by the nature of his work, and that, therefore, her Honour erred in failing to find causation established.

75. In the submissions in support of ground 2 criticism was made of the use by senior counsel for Linfox of the page of assumptions handed to Dr Bodel and A/Prof Miniter at the commencement of cross-examination in the conclave evidence. It was said that this was “an unusual approach”. It was submitted that Dr Bodel was “uncomfortable” with this approach, as he did not know the source of the information.

76. It was not made clear why providing the medical specialists with a written statement of assumptions on which they were asked to consider their opinions was in any way inappropriate. As a matter of course, expert witnesses are asked to consider their opinions on the basis of assumptions alternative to those on which their primary opinions have been based. Far from signifying any error or irregularity, the course adopted by senior counsel for Linfox was conducive to a more considered response than one given where the assumptions are put orally, as is often the case.

77. As with ground 1, ground 2 can properly be seen to raise two questions:

1. (i)   was the primary judge correct to find that there was no reliable evidence of a causal connection between the nature of the appellant’s work and his medical condition?; and

2. (ii)   was the primary judge in error in failing to find a relevant causal connection?

(The second question arises only if the first is answered negatively.)

78. The adjective “reliable” in the first question, and in the finding of the primary judge to which ground 2 is directed, should not be overlooked. As is apparent from the outline above, the primary judge reached her conclusion on causation by considering the conflicting evidence of Dr Bodel and A/Prof Miniter. On behalf of the appellant it was submitted that there was other evidence, overlooked by the primary judge, of a causal connection.

79. The submissions for the appellant pointed first to a “special note” made by the appellant’s treating neurosurgeon of the events of 13 November 2017, from which, it was submitted, it could be inferred that the neurosurgeon considered that there was a causal connection. The submissions did not descend to the identification of the treating neurosurgeon, or of any report which contained the “special note”. The appellant’s treating neurosurgeon was Dr Martin Scholsem. Five reports of Dr Scholsem are contained in the appeal papers. The first was a pre-operative report to the appellant’s general practitioner. Dr Scholsem recorded a history, presumably that given to him by the appellant. There is no reference to any causal connection between the events of 13 November and the appellant’s medical condition. Neither is there any such reference in any of the subsequent reports. I do not infer, from the paragraphs setting out the appellant’s history, that Dr Scholsem turned his mind to any causal connection. Dr Scholsem’s role was to treat – surgically – the appellant’s condition as it then manifested. Causation was not an issue for his consideration. Dr Scholsem’s reports do not contain “reliable evidence” of causation.

80. The next asserted record of a causal connection was said to be in clinical notes of Dr David Norus, a general practitioner (who does not appear to have been the appellant’s regular general practitioner). On 2 January 2018, Dr Norus recorded an initial consultation in which the appellant complained of pain since August 2017 [the note says 2018, but this is clearly an error] in the lower back radiating to the left leg. Relevantly, the note is:

“wc not open til december after in event 13/11 cauase [sic] acute excerbation [sic] of pain; never pain free ...”

The note is of little, if any, evidentiary value on the question of causation.

81. Reference was then made to a report of Dr Uthum Dias, a consultant occupational physician, dated 8 October 2019, to whom the appellant was referred by his solicitors for medico-legal assessment. In answer to a specific question concerning any causal connection between the events of 13 November 2017 and the applicant’s medical condition, Dr Dias said:

“In my opinion, there remains a direct causal relationship between Mr Islam’s current condition affecting his lumbar spine and his subject work-related accident of 13^th November 2017. I note that Mr Islam was experiencing mild symptoms of pain and discomfort in his lumbar spine region prior to the subject accident, due primarily to the nature and conditions of his heavy manual employment with Local Logistics Pty Ltd. These symptoms have persisted for approximately three months prior to the subject accident. However, in my opinion Mr Islam’s current condition, relates entirely to the frank incident of 13^th November 2017, which in my opinion resulted in Mr Islam sustaining an acute left-sided disc protrusion at L4/L5 level, and has resulted in persisting severe lower back symptomatology and left lower limb radicular symptomatology on a continual basis over the course of the past 23 months since the subject incident.”

Dr Dias gave oral evidence, but was not questioned about that subject.

82. Finally, reliance was placed on the medical assessment of Dr Ian Meakin, the Medical Assessor (an orthopaedic specialist) who assessed the appellant for the purpose of his claim for lump sum compensation for permanent impairment (which requires a causal connection). Inherent in Dr Meakin’s assessment of the appellant’s permanent impairment at 15% is a finding of a causal connection.

83. Dr Meakin was provided with A/Prof Miniter’s report of 4 November 2019 and asked to reassess. He declined to do so, adhering to the conclusions that had reached on examination and expressed in the Medical Assessment Certificate he had issued.

84. In the light of the reports of Dr Dias (who was not an orthopaedic specialist) and Dr Meakin (who was) it may have been something of an overstatement to say that there was no reliable evidence of causation. The principal evidence on causation remained that of Dr Bodel and A/Prof Miniter. Dr Bodel, after a strong start, gave considerable ground in cross-examination. His opinion on causation was significantly modified by the revelation that the appellant, far from taking two weeks to recover, had undertaken a two seek security course (although what that involved was not fully explored).

85. In my opinion, there was no error in the primary judge accepting the opinion of A/Prof Miniter in preference to that of Dr Bodel. I am not persuaded that her Honour’s conclusion was attended by error.

86. I would reject this ground of appeal.

Ground 3

87. By ground 3 the appellant asserted, in the most general terms, error in the failure of the primary judge to find “the defendants” in breach of their duties of care to the appellant. The ground does not distinguish between breaches asserted against Linfox, and breaches asserted against Local Logistics. Nor does it identify breaches giving rise to the appellant’s primary case (concerning the events of 13 November 2017) and the secondary case (relating to the nature and conditions of work). Nor does the ground pleaded identify any aspect of the reasoning of the primary judge alleged to constitute or reveal error.

88. The written submissions were equally opaque (and no oral submissions were directed to this ground). Reliance was placed on a paragraph in the joint report of the ergonomists, Mr Adams and Mr Smith, to the effect that, while Linfox had in place a system to review potentially hazardous sites, it did not appear to have followed that system. That was one of the many paragraphs in the joint report excluded (correctly, with respect) by the primary judge. In any event, the observation throws little light on whether, in the circumstances of the Vaucluse delivery, either Linfox or Local Logistics was in breach of its duty of care to the appellant.

89. Reference was then made to possible precautions that may have been taken to avoid injury identified by Mr Adams in his first report. Although there were many such proposals by Mr Adams, the appellant, for the purposes of this appeal, relied on the following:

1. suitable lifting straps could have been provided;

2. drivers who had to deliver heavy loads, a large number of items, or make deliveries to awkward sites, could have been provided with, or required to take on, an offsider to assist in unloading and delivering such items, with rate increases being provided to compensate;

3. systems could have been developed that ensured that driver requests for assistance were quickly and thoroughly addressed;

4. a database of problem sites could have been established, so that appropriate measures might have been implemented, by, for example, charging additional delivery fees, or refusing delivery.

90. Not explained was how the provision of lifting straps might have avoided injury to the appellant at the Vaucluse premises. The primary judge rejected Mr Adams’ opinion that Linfox should have implemented a system requiring drivers with heavy loads, large numbers of items, or who were required to make deliveries to awkward sites, to have an offsider to assist in unloading and delivering items. The postulated system would have to be extended to all drivers required to make such deliveries. Her Honour considered that the contention that a porter (offsider) should have been assigned implicitly accepted that the work was consistent with safe manual handling, but that the appellant’s was a special case. The appellant did not challenge this reasoning. There was no evidence to support Mr Adams’ bare opinion.

91. The third postulated precaution depended on there being a request by the appellant for assistance, something the appellant did not assert, and which was contrary to the primary judge’s finding that no complaint of a risk of injury was made by the appellant to Mr Carvajal. There was nothing in the evidence to suggest that the Vaucluse address (which, it may be accepted, was a “problem site”) was known to have been such either to Linfox or Local Logistics prior to 13 November 2017.

92. The appellant’s arguments have not identified any error in the primary judge’s reasoning on breach of duty of care by either respondent. I would reject ground 3.

Ground 6

93. By ground 6 the appellant complained of error by the primary judge in rejecting the “bulk of the joint report” of the ergonomists.

94. Those parts of the joint report excluded by the primary judge included (but were not limited to) the following:

“(g)   we agree that the defendant [singular] did fail to appreciate that the plaintiff was in a position of peril.

…

(h)   we agree that the defendant [singular] did fail to appreciate that the plaintiff would suffer injury if care was not taken;

…

(i)   we agree that the defendant [singular] did fail to properly supervise the plaintiff;

…

(k)   we agree that the defendant [singular] did fail to prevent the plaintiff from being exposed to a foreseeable risk of injury;

…

(m)   we agree that the defendant [singular] failed to provide, ensure and maintain a safe place of work.”

This is only a sample of the conclusions of the ergonomists. There were many more in the same vein. All were clearly inadmissible and the primary judge was right to exclude them.

95. Also included in the joint report, on two separate occasions, was:

“We agree that the defendant [singular] did fail to exercise reasonable care for the safety of the plaintiff.”

96. This also was excluded by the primary judge. It was submitted that this was “clearly admissible, relevant and persuasive”. I disagree. On the contrary, it was clearly inadmissible. Whether either respondent failed to exercise reasonable care for the safety of the appellant was entirely a matter for the primary judge; it was a conclusion to be based on admissible evidence.

97. Complaint was also made that the primary judge stated, in argument, that the conclave “didn’t add anything at the end of the day”. It was submitted that this:

“Completely overlooks the very important point that the experts agreed that the Respondent’s [sic] had seriously mishandled their duty of care to the Appellant.”

98. Again, this was entirely a matter for the primary judge to determine, on admissible evidence. The opinions of the ergonomists on that question was irrelevant and therefore inadmissible. I would reject this ground.

99. The conclusions with respect to grounds 1-3 and 6 have the result that the appeal must be dismissed. That means that grounds 4 and 5 can be addressed briefly.

Ground 4

100. By ground 4 the appellant complained of the contingent finding that, as against Local Logistics, he was contributorily negligent. The primary judge accepted Local Logistics’ submission that, by failing to disclose his symptoms to Local Logistics, and continuing to work, the appellant contributed to his own injury. As indicated above, her Honour would have assigned a very high proportion of responsibility to the appellant – as high as “75% to 90%, if not higher”.

101. The appellant’s submission in respect to this ground of appeal was simply that it was based on an erroneous finding of fact – that he had not complained to Mr Kollaras of his back condition. In the light of my conclusions on ground 1, this ground cannot be sustained. I would reject it.

Ground 5

102. By ground 5 the appellant contends that the primary judge erred in the contingent assessment of damages. Only one specific error was nominated – that the primary judge made findings about “a supervening neck condition that was never considered by medico-legal experts”. No such finding was identified. Otherwise, the appellant’s submission was that, having regard to errors in the fact-finding process, “the assessment of damages is [to be] treated with some caution”.

103. In the absence of any specificity as to asserted error in the assessment of damages I would reject this ground of appeal.

Ground 7

104. The final ground of appeal concerns the costs awarded against the appellant in favour of Local Logistics.

105. As can be seen from the formulation of ground 7, the appellant’s complaint is as to the costs orders in favour of Local Logistics. He does not complain of the costs order in favour of Linfox, nor does he complain about the costs order in respect of the cross-claims. The primary judge was clear that, in ordering the appellant to pay Local Logistics’ costs, she relied on the UCPR.

106. The submissions made on behalf of the appellant in support of ground 7 were brief. It was contended that:

“The costs order, if any, that could have been made in relation to [Local Logistics], as employer, was limited to regulated costs pursuant to schedule 7, Workers Compensation Regulation 2016 and only then if [Local Logistics] had made and beaten an (actual or deemed) offer at a mediation, evidence by a certificate, pursuant to clauses 94, 95 and 97 of the Regulations. No such certificate was tendered in any event, so whatever the outcome on liability costs order could have been made (at all) [sic].”

107. Reliance on Schedule 7 of the Workers Compensation Regulation 2016 (NSW) is puzzling. Schedule 7 provides for maximum costs for legal services in work injury damages matters. At most, it is a provision as to costs assessment.

107. Local Logistics argued that there was no error in the order made by her Honour.

108. The appellant’s submission was wrong on a number of fronts. To explain why, it is necessary to examine the relevant costs provisions.

109. The starting point is s 98 of the Civil Procedure Act 2005 (NSW), subs (1) of which provides:

“(1)   Subject to rules of court and to this or any other Act—

(a)   costs are in the discretion of the court, and

(b)   the court has full power to determine by whom, to whom and to what extent costs are to be paid, and

(c)   the court may order that costs are to be awarded on the ordinary basis or on an indemnity basis.”

(The relevant rules are UCPR r 42.1 and r 42.2, which provide, respectively, that costs follow the event, and that, unless the court orders otherwise, the costs payable under an order of the court are to be assessed on the ordinary basis).

111. The salient words of s 98(1) for present purposes are: “Subject to rules of court” and “[subject to] this or any other Act.” It is therefore necessary to look to other relevant legislative provisions.

112. Local Logistics drew attention to s 337 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (“WIM Act”), which provides, in subs (1) for the making of regulations, and, in subs (3):

“A legal practitioner is not entitled to be paid or recover for a legal service or other matter an amount that exceeds any maximum costs fixed for the service or matter by the regulations under this section.”

113. Like Sch 7 of the Workers Compensation Regulation, subs (3) has little (if anything) to do with the power to award costs, but is directed to legal practitioners and costs assessors.

114. More pertinently, s 346 of the WIM Act applies, by subs (1), to “costs (including disbursements) payable by a party in or in relation to a claim for work injury damages, including court proceedings for work injury damages”. It was not in issue that the appellant’s claim was for work injury damages: see WIM Act, s 250.

115. In Smith v Sydney West Area Health Service (No 2) [2009] NSWCA 62 at [14], this Court held that the effect of s 346 is to exclude the operation of s 98 of the Civil Procedure Act in relation to work injury damages.

116. The relevant provisions are to be found in Pt 17, Div 3 of the Workers Compensation Regulation, in which the provisions referred to in the appellant’s submission are located. That Division is expressed, in cl 91 of the Reg, to be made under s 337 of the WIM Act, and applies to “costs payable on a party and party basis, on a law practice and client basis or on any other basis”. Clause 94 provides:

“If a claimant obtains an order or judgment on a claim that is no less favourable to the claimant than the terms of the claimant’s final offer of settlement in mediation under the [WIM Act] as certified by the mediator under section 318B of the [WIM Act], the Court is to order the insurer to pay the claimant’s costs on the claim assessed on a party and party basis.”

117. Clause 94 is plainly inapplicable as the appellant did not obtain the relevant order or judgment.

118. Clause 97 (also identified in the appellant’s submission) is directed, in subcll (1) and (2), to cases where an insurer wholly denies liability, and, either no mediation occurs or mediation fails, and the claimant obtains an order or judgment on the claim. Plainly, again, cl 97 is inapplicable.

119. Clause 96 provides:

“Except as provided by this Subdivision, the parties to court proceedings for work injury damages are to bear their own costs.”

120. Clause 95 is the applicable clause. Subclause (1) is directed to cases where a claimant obtains an order or judgment less favourable than the terms of the insurer’s final offer of settlement in mediation. It, also, is inapplicable because the appellant did not obtain a relevant judgment or order.

121. Subclause (2) of cl 95 provides:

“If a claimant does not obtain an order or judgment on a claim (that is, if the court finds the insurer has no liability for the claim), the court is to order the claimant to pay the insurer’s costs on the claim assessed on a party and party basis.”

122. Both cll 95 and 96 are located in Subdiv 2 of Div 3 of Pt 17. Clause 95(2) is an exception to the cl 96 basic rule, that the parties to court proceedings are to bear their own costs. Accordingly, the rule provided in cl 96 is inapplicable.

123. Although the primary judge identified an inapplicable statutory provision (the UCPR) as authorising the costs order she made, the order itself was correct.

124. Ground 7 of the appeal should be rejected.

125. The consequence is that the appeal should be dismissed, and the appellant ordered to pay the costs of the appeal of both respondents.

126. BASTEN AJA: I agree with Simpson AJA.      

**********   

Decision last updated: 29 February 2024