Joe Salvadore Lembo v Pacific Brands Holdings Pty Ltd

[2015] NSWDC 35

District Court

New South Wales

Medium Neutral Citation:	Joe Salvadore Lembo v Pacific Brands Holdings Pty Ltd [2015] NSWDC 35
Hearing dates:	24, 25 February and 13, March 2015
Date of orders:	27 March 2015
Decision date:	27 March 2015
Jurisdiction:	Civil
Before:	Hatzistergos DCJ
Decision:	Verdict for the Defendant
Catchwords:	TORTS – negligence – liability – vicarious liability – damages
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW), rr 14.22, 14.23 and 14.26
Cases Cited:	Bellingen Shire Council v Colavon Pty Limited [2012] NSWCA 34 Blatch v Archer (1774) 1 Cowper 63; (1774) 98 ER 769 Brierley v Ellis (2014) 67 MVR 282 Deatons Pty Limited v Flew (1949) 79 CLR 370 Hampton Court Limited v Crooks (1957) 97 CLR 367 Leotta v Public Transport Commission (NSW) (1976) 9 ALR 437 LMI v Baulderstone [2001] NSWSC 688 O’Connor v Commissioner for Government Transport (1954) 100 CLR 225 Union Bank of Australia v Harrison, Jones and Devlin Limited (1910) 11 CLR 492 Warner v Sampson [1959] 1 QB 97
Category:	Principal judgment
Parties:	Joe Salvadore Lembo (Plaintiff) Pacific Brands Holdings Pty Ltd (Defendant)
Representation:	Counsel: Mr A Lidden SC (Plaintiff) on 24 February 2015 Ms L Goodchild (Plaintiff) on 24 and 25 February 2015 Mr L Robison (Defendant) Solicitors: Brydens Compensation Lawyers (Plaintiff) Holman Webb Lawyers (Defendant)
File Number(s):	2014/18006
Publication restriction:	Nil

INDEX

Plaintiff’s Employment – paragraph 2

Accident – paragraph 4

Plaintiff’s Case – paragraph 10

Defendant’s Case – paragraph 20

Was The Injured Person An Employee Of The Defendant? – paragraph 23

Vicarious Liability – paragraph 33

Training – paragraph 34

Damages: Background – paragraph 45

Damages: Treatment – paragraph 48

Damages: Plaintiff’s Evidence – paragraph 68

Damages: Medico Legal Evidence – paragraph 75

Damages: Analysis – paragraph 85

Orders – paragraph 96

Judgment

1. The Plaintiff, Joe Salvadore Lembo, brings proceedings pursuant to a Statement of Claim filed 20 January 2014 for work injury damages. The accident occurred on 3 September 2010 at his place of employment at Scrivener Street Warwick Farm, when the Plaintiff was attending to assist a person who had fallen down a staircase and had occasioned injury.

PLAINTIFF’S EMPLOYMENT

2. The Plaintiff’s evidence was that he was employed by the Defendant at the aforesaid premises as a production supervisor and customer service coordinator, from 2006 until September 2010. [1] Whilst there, he was at some point appointed as First Aid Officer. He had received training for that position through St John Ambulance [2] and the Defendant’s human resources department. [3] The Plaintiff described his training as:-

“Just the appropriate way of actually handling the situation such as cuts, bruises, banding up.” [4]

1. Exhibit A

2. T 7.29

3. T 8.5-.16

4. T 7.33

3. Further details of training provided are addressed later in these reasons.

ACCIDENT

4. The Plaintiff’s evidence was that on 3 September 2010 he was working in the cubicle, when he heard a scream from nearby to his left hand. His cubicle was approximately 5-6 metres away from the staircase. Those stairs consisted of 4 steps going up from the entry of the premises, a platform and then 12-14 steps going up again. The evidence was that he went to the staircase and saw a person laying there on the platform with legs facing towards the reception area. The reception was at the top of the staircase. The injured person’s head was towards the wall.

5. The Plaintiff gave evidence that he approached the person who he said was in a state of shock, shaking, disbelieving and praying. He stated that he positioned himself on the left side of her body and was checking to see if there were any broken bones, any concussion or any bleeding. He was looking for protrusions coming out of the injured person’s arms or legs. He did not see any. He then looked for bleeding of the ears but did not see any sign of that.

6. At this point the Plaintiff was kneeled down on one knee, crouching behind the injured person. His back was bent. Whilst he was doing that, his evidence was that the injured person folded her legs, brought her legs back, grabbed the Plaintiff’s arm and pulled herself up. The Plaintiff stated that the injured person held his arm and was pulling herself up. When she did this, he felt a pinch in his back. He gave evidence that the injured person did not give any warning that this was what she was about to do. He felt that he could not let her go as she would have fallen down the steps. He then maintained her in his arms when she fell on him and collapsed into his arms. At that point the Plaintiff again felt a pinch in his back. When the injured person collapsed, she apparently did so directly on top of him. He was in an upright position at that point.

7. Then, another colleague brought a chair and the Plaintiff assisted the injured person into the chair. The injured person managed to sit in the chair. An ambulance was called by the Plaintiff’s colleague, Jenny Samuel. Apparently this was the initial thought that the Plaintiff had when he saw the injured person at the bottom of the staircase. The ambulance arrived, according to the Plaintiff’s evidence, “give or take say about 8-10 minutes.” [5]

   5. T 13.7

8. The Plaintiff stated that he felt some twinges in his back when this episode occurred and although it was feeling a bit tight, he was not in much pain. He worked the balance of his shift, the accident having occurred at 5pm. The Plaintiff would normally commence work between 5:30 and 6:30am and finish at 2:30pm, however, he would often stay back until 4 or 5pm.

9. The Plaintiff’s evidence was that he went home and that his back began to get sore. He stated that it was hard for him to stand up, that he was limping and people at work noticed. Approximately 8 days after the accident he saw his general practitioner, Dr Brabant.

PLAINTIFF’S CASE

10. In opening, Mr Lidden SC for the Plaintiff, outlined his case in the following way:-

“He (the Plaintiff) was a First Aid Officer, not that he was properly trained as what to do in the circumstances which arose on the day of his accident, and he seems to have had, so far as his back is concerned and unknown to him, an underlying lumbar spondylolisthesis, the significance of which are largely unexplained in this case due to the Defendant’s failure to serve any reports dealing with it in their pre-filing defence. In any event, he was at work when a large, female fellow employee did in her own stupidity fall down a set of stairs. There was nothing wrong with the stairs.

I doubt that anyone will hear from her given the non-service of any material as to what she would say in this case in the pre-filing defence. She ended up on her back, down the staircase. The Plaintiff heard her cry out and went over. He was there alongside her, seeing whether she had anything broken or whether there was any blood, all the sorts of things that he had some training how to do, when she grabbed hold of his arm and gave it a reef in an attempt to get up. He assisted her up, she had hold of him anyway, whereupon she fell on top of him, hurting him and there seems to be no doubt that in that manoeuvre he sustained a very serious lumbar spinal injury resulting in a fusion on the date set out in the chronology, which is really only a number of weeks after the accident occurred.” [6]

6. T 1.25-.44

11. At T 24.27 the following evidence emerged in the exchange between the Defendant’s counsel and the Plaintiff:-

“Q. When you went to assist the lady who fell, you advised her that it would be unsafe for you to pick her up, didn’t you?

A. I told her not to move, the ambulance was on its way.

HIS HONOUR

Q. You told her not to move, did you say?

A. Yeah, I told her just to stay put and the ambulance was coming.

ROBISON

Q. She asked you to assist her in getting to her feet, didn’t she?

A. She grabbed my arm and then asked me to lift her up. Assist her.

Q. She asked you to lift her up?

A. After grabbing my arm, sir, yes.

Q. You advised against that course, didn’t you?

A. I did.

Q. That was because you knew that it would be unsafe?

A. Unsafe for both of us.

Q. Then she asked you again if you would assist her to her feet?

A. No, she got up – she used me as a leverage to pull herself up.

12. In submissions I asked the Plaintiff’s counsel about the Plaintiff’s liability case. This exchange takes place:

“HIS HONOUR: What is your liability case?

GOODCHILD: We say that there was nothing wrong with the stairs. We say, firstly, liabilities proved beyond doubt. There was nothing wrong with the stairs. The worker fell down them, presumably through her own stupidity. There's no evidence that she was injured. And whilst the Plaintiff was attending to her comfort, from a semi kneeling position, she grabbed hold of his arm and pulled on it, thereby injuring him. He then stood up and tried to assist her, she collapsed onto him, and he suffered further pain. There's no evidence that she was in any state of emergency. She was looking after her own interests at the expense of a fellow worker, and the Defendant is liable for her actions.

HIS HONOUR: What could the employer have done, or what should he have done?

GOODCHILD: The issue is that as pleaded, which is in respect to training.

HIS HONOUR: Training who, what?

GOODCHILD: Training the Plaintiff with regard to first aid.

HIS HONOUR: He had that.

GOODCHILD: He had that to a certain extent. What else could the Plaintiff have done, simply dropper her.” [7]

7. T 80.29-81.4

13. I later renewed this request in submissions in reply wherein the Plaintiff’s counsel characterised the Plaintiff’s case as follows:

“GOODCHILD: The Defendant is vicariously liable for the actions of their

employees. In this case, the employee tripped on some stairs, fell, whatever happened

HIS HONOUR: We don't know what happened but anyway.

GOODCHILD: Et cetera and then what happened is the evidence of what the Plaintiff said happened, he instructed her not to move, she didn't obey that instruction. She went to move and she and I used the word grabbed and it's not in the evidence. I don't try to put it in there but that's my word, she's grabbed his arm. I rely upon my written submissions your Honour where I've attempted to be a bit more thorough in but I didn't have access to the transcript.

HIS HONOUR: I read those but they just didn't seem to me to characterise it. The way its described it. I was more focused on your earlier comment about training. You said something should have been done about training and I'm not quite sure what it was. I mean they went to St John Ambulance what else?

GOODCHILD: By the pleadings, I'm simply referring back to the pleadings. Risk assessment, I withdraw that your Honour. I just rely upon the pleadings and particulars as pleaded.” [8]

8. T 93.50-94.21

14. In this opening and in the evidence presented, the Plaintiff’s case was that the injured person grabbed hold of the Plaintiff’s arm and gave it a reef to get up. As the Plaintiff assisted the employee, the latter fell on top of him. The case pleaded in the Statement of Claim, particularly at paragraphs [8] and [9], was as follows:-

“8. Whilst the Plaintiff was attempting to assist the worker, she asked the Plaintiff to help her from the floor into a chair.

9. The Plaintiff did so and during this transfer sustained a serious injury to his back.”

15. The particulars of negligence in paragraph [11] of the Statement of Claim raise the issue of the injured ‘worker’ being the servant or agent of the Defendant.

16. As I see it, the Plaintiff’s case did not fully accord with the Statement of Claim in that it did not raise the injured person’s act.

17. However I note:

1. That the opening by senior counsel for the Plaintiff raised the issue of the Plaintiff using the Defendant to reef herself up;

2. That the Defendant did not object to this aspect of the Plaintiff’s;

3. That the Defendant did not object to the Plaintiff’s evidence as outside the scope of the pleadings and nor was there any submission of prejudice; and

4. Paragraphs (6)(b) and (c) of the Defendant’s statement of issues.

“6.

…

b. Whether the defendant can be liable for the act of the lady pulling on the plaintiff’s body;

c. Whether the lady falling and or the assistance rendered to her by the plaintiff was caused by any negligent act of the defendant;”

18. In the circumstances, notwithstanding any deficiency in the pleadings, I am not pursuaded that any unfairness is occasioned to the Defendant by enabling the Plaintiff to conduct its case in the manner advanced at the hearing. [9]

    9. Leotta v Public Transport Commission (NSW) (1976) 9 ALR 437 at [446] and Bellingen Shire Council v Colavon Pty Limited [2012] NSWCA 34 at [24]

19. Pleading rules or, for that matter, practice and procedure are not ends in themselves. They are means to the end of obtaining justice. [10]

    10. Union Bank of Australia v Harrison, Jones and Devlin Limited (1910) 11 CLR 492

DEFENDANT’S CASE

20. The Defendant’s Defence did not admit paragraphs [8] and [9] of the Statement of Claim. [11]

    11. Paragraph [4] of the Defence

21. Mr Robison, in his opening remarks, made it clear that the question of whether the person, to whose aid the Plaintiff went which leading to the accident, was employed was not admitted by the Defendant. [12] Bearing this in mind, the Defendant submitted a statement of issues, dated 24 February 2015, stating that the main issues for the court to determine on liability were:-

    12. T 2.38

1. The scope of the Defendant’s duty;

2. Whether the Defendant can be liable for the act of the lady pulling on the Plaintiff’s body;

3. Whether the lady falling or the assistance rendered to her by the Plaintiff were caused by any negligent act of the Defendant;

4. Whether the Defendant discharged its duty by:

1. Refraining from directing the Plaintiff to attend upon the lady,

2. Providing first aid training through its HR department,

3. Arranging training via St John’s Ambulance;

5. If primary liability is established, the extent of reduction of damages attendant on the Plaintiff’s contributory negligence; and

6. The extent of the Plaintiff’s damages, as the only heads of damages relate to past and future economic loss, the Defendant contends that past economic loss would extend only to the period of hospitalisation and recovery thereafter, together with a modest buffer for future economic loss given the demonstrable (and significant) capacity the Plaintiff still has. See schedule of damages. The parties agree that net weekly earnings as of the date of the injury were $860.

22. The Defendant also took issue with allegations of vicarious liability for the injured person’s negligence, however, it is first necessary to consider whether the injured person was a servant or agent as the Plaintiff alleged.

WAS THE INJURED PERSON AN EMPLOYEE OF THE DEFENDANT?

23. The evidence led in the Plaintiff’s case of employment is at T 9.1-.36 and is as follows:-

“Q. For how long before this accident had you seen her there at the premises operated by the Defendant?

A. Twice

Q. In Scrivener Street, Warwick Farm.

A. Twice

Q. Over what period before the accident?

A. Month.

Q. What had you seen her doing?

A. I was told she was a--

Q. What had you seen her doing?

A. Coming in, submitting the documentation of sales and walking back out again.

Q. There at the Scrivener Street premises, was there a sales room?

A. Yes there was.

Q. Mattresses were made on the premises, were they?

A. Correct, sir.

Q. And sold from the premises?

A. Not direct to the public, sir, but to our suppliers – our customers, Harvey Norman, people like that.

Q. Where did you see her working?

A. In the office upstairs.

Q. When you say she had sales documents or something of that sort; what was she doing with them?

A. I believe it was promotional work, sir, I don’t know very much about that part. She was responsive to actually the department of the sales division, I was in production, but I saw her going in and out, and I was told that she actually was in sales.”

24. Mr Robison cross-examined the Plaintiff in relation to his observations. That cross-examination is to be found at T 41.40-42.7 as follows:-

“Q. You have only seen the lady who fell, twice; is that correct?

A. Yes, two times. Second time would’ve been on the accident.

Q. So you’ve seen her once prior to the accident?

A. Yes.

Q. You saw her go into the office with some paperwork?

A. That’s basically it.

Q. You didn’t see that paperwork, did you?

A. No, sir. I was only told as she was working as a sales rep by one of my colleague.

Q. I suggest that you’re guessing that she was employed as a sales rep and don’t really know?

A. I was told by – I didn’t say I was guessing, I was told by one of my colleagues.”

25. As noted earlier, the Defendant’s counsel made it clear that his client was not admitting the injured person was an employee. [13] When I raised with Mr Robison the fact that presumably the identity of the person was known to the Defendant, he responded, “I can’t answer that your Honour.” [14]

    13. T 2.20, 2.38 and 66.17

    14. T 67.1

26. It is open to a party under UCPR 14.26(2) to traverse by either denial or statement of non-admission, the practical effect appears to be the same. [15] A statement of non-admission commonly indicates that a disputed fact is not within a party’s knowledge. Were an order sought and obtained under UCPR 14.22(2) for a verified defence, the requirements of UCPR 14.23(3)(c) would require an affidavit verifying the pleading to state:-

“(c) as to any allegation of fact that the pleading does not admit that after reasonable enquiry the deponent does not know whether the allegations are true.”

15. Warner v Sampson [1959] 1 QB 97 at [319].

27. Such an order was not sought. Nor were any work injury, ambulance or other records tendered to confirm the identity or employment of the injured person. No other witnesses on liability were called.

28. Despite the raising of this issue, the Plaintiff’s written submissions earlier, at [10], suggest that the issue of the injured person’s status as an employee was not in issue. Later, however, at [68]-[70], the Defendant submissions in relation to the position of the injured person were in the following terms:-

“68. There was an announcement made by counsel for the defendant at the commencement of the case that the person who injured the plaintiff was not an employee. This announcement was made in full knowledge that the defendant intended to call no evidence on the issue whatsoever. The identity of this worker must be known. The defendant must have at its fingertips wage records in connection with payments made to this worker.

69. The plaintiff was told by a superior at work that the person was “a sales representative”. The plaintiff was not even cross examined to suggest that there were workers employed by others on the premised (sic) at any time at all. In any event the allegation was simply not admitted on the pleadings rather than denied. The only available factual finding is that the female who injured the plaintiff was a fellow worker and the defendant is vicariously liable for every negligence step she takes.

70. The court should find that in the circumstances where the plaintiff has given an explanation of the circumstances of the injury in a statement, the unexplained failure by the defendant to call evidence to meet that explanation, allows an inference to be drawn that the uncalled evidence would not have assisted the defendant’s case: Jones v Dunkel (1959) 101 CLR 298.”

29. In oral submissions, on 25 February 2015, the matter was raised with the Plaintiff’s counsel in the following exchange:-

“GOODCHILD: We say that there's no doubt that she was an employee, and there is ample evidence to satisfy that point. The identity of the worker must have been known by the Defendant. The Defendant must have had at its fingertips wage records in connection to payments made to the worker.

HIS HONOUR: What's your evidence she was a worker?

GOODCHILD: The Plaintiff said in his evidence that he was told by a superior at work that the person was a sales person. The Plaintiff was not even cross examined to suggest that there were workers employed by others on the premises at any time at all. The allegation in the statement of claim is not denied, it's simply not admitted.

HIS HONOUR: Which means you've got to prove it. I just want to know

GOODCHILD: And we say we have proved it sufficiently.

HIS HONOUR: What, through the conversation with the

GOODCHILD: Through the conversation, through what the Plaintiff says. The only factual finding that's available on the evidence is that female who injured the Plaintiff was a fellow worker and the Defendant is vicariously liable for every negligent step that she took. The Defendant's had a copy of the Plaintiff's pre filing statement. The Defendants have always known that the Plaintiff has alleged that the employee was an employer. The Plaintiff gave a fairly detailed explanation of the circumstances of that injury in that statement, and we say that the Jones v Dunkel inference should be drawn with respect to the Defendants for failing to call evidence that she wasn't a worker.

Nothing that the Plaintiff said in the box yesterday was news to the Defendant. They always knew that he said he'd seen her there, and that he was told that she was a worker. We didn't have to do anything else. The inference should be drawn that their failure to call any evidence with respect to that point wouldn't have assisted them. So for my friend to say that we should have done more, that we should have issued the subpoenas to the ambulance, that we should have made greater efforts finding out the identity, we didn't need to do that. The Plaintiff made a statement; the Plaintiff's position has always been that. It's pleaded in the statement of claim. We've satisfied the evidentiary burden.” [16]

16. T 81.11-.49

30. The Defendant’s submission was as follows:-

“ROBISON: …………………., the Plaintiff should have adduced further evidence. It would be remarkable in my submission even the name of this lady hasn't been established by the Plaintiff and further there's no statement or other evidence apart from the hearsay evidence of some kind that he was told who she was. We don't know who he was told by. My friend submits it was a supervisor but his evidence was actually that it was a co worker and I agree with your Honour that Shuey's is really a specific example of the proposition. It seems with that case where we don't have any direct application, in my submission to this matter, but my submission really is that the true extent of the evidence of this lady's identity is the Plaintiff had seen her once before she fell and on the occasion that she fell. Saw her holding some documents and was told she was in sales.

HIS HONOUR: It's not a lot but it may be enough to say to you

ROBISON: Simply being in sales doesn't necessarily mean in the employ of anyone in particular. Sales could mean sales to the company which as we know had suppliers, we don't know what it means. Your Honour, there is not really much more about the identity of the lady except for repeating what I have said about the lack of significant of that proposition anyway in determining liability.” [17]

17. T 90.9-.29

31. The evidence given by the Plaintiff, in relation to what he was told by an unidentified colleague, was not objected to by the Defendant. It was hearsay evidence which (had the point been taken) could not have established the existence of any fact reasonably thought to be asserted by the representation. Further, the evidence was in a narrative form[18] and did not identify the source and circumstances of its disclosure. However it was neither objected to nor directly challenged. The relevant principles as to how it would ordinarily be dealt with were set out recently in Brierley v Ellis. [19] It is unnecessary to consider this issue further in the circumstances.

    18. See LMI v Baulderstone [2001] NSWSC 688

    19. (2014) 67 MVR 282 at [24]-{28]

32. The evidence was that the Plaintiff was seen in the sales department “submitting the documentation of sales and walking back out.” [20] The Plaintiff did not “see the paper work.” [21] The Plaintiff had been told the injured person was in “sales” and “was working as a sales rep” [22] by an unidentified colleague. The only mention of employment was at T 42.4 in a question from the Defendant’s counsel in cross-examination to the effect that the Plaintiff was “guessing that [the injured person] was employed as a sales rep.” [23] The Plaintiff’s response, “I was told by-I didn’t say I was guessing, I was told my (sic) one of my colleagues” [24] cannot be seen as establishing employment. Nor in my view does it extend to placing an evidentiary onus on the defendant; accepting that evidence is to be weighed according to the proof of which it is within the power of one side to have produced and within the power of the other to have contradicted. [25] In my view the evidence does not establish a master servant relationship between the injured person and the Defendant.

    20. T 9.15

    21. T 41.50-42.1

    22. T 42.1

    23. T 42.4

    24. T 42.7

    25. Blatch v Archer (1774) 1 Cowper 63 at [65]; (1774) 98 ER 769; See Hampton Court Limited v Crooks (1957) 97 CLR 367 at [371]

VICARIOUS LIABILITY

33. Bearing in mind this, it is unnecessary to discuss vicarious liability in any detail. I acknowledge that the Defendant, in its statement of issues, conceded that the Plaintiff came to the aid of a lady who fell down the stairs in his workplace. [26] However, even if I am wrong on the question of the master servant relationship, the Plaintiff has pointed to no evidence to provide context to what the injured person was doing at the time of the Plaintiff’s injury so as to suggest that it falls to the Defendant’s responsibility. An employer can only be vicariously liable for the act of its employee if the act can be shown to have fallen within the scope of the servant’s authority, either as being an act which he was employed to perform or as being an act which was incidental to his employment. [27] There no evidence to provide context to what the injured person was doing immediately preceding the Plaintiff’s injury. Accordingly there is no basis upon which I can attribute vicarious liability in these circumstances.

    26. Paragraph 1

    27. Deatons Pty Limited v Flew (1949) 79 CLR 370 at [378]

TRAINING

34. During the course of the hearing the Plaintiff contended that he had not been properly trained. So far as I can ascertain, this contention finds expression in paragraph 11(g) of the Statement of Claim which states:

“Failing to instruct the Plaintiff that an injured person should not under any circumstances be lifted if there was any doubt that such person was not able to assist in any lift or transfer.”

35. In the Defendant’s request for further and better particulars [28] at Q16 the following request is made referable to the Particulars of Negligence:

“Why is it alleged that an injured person should not be lifted? Did the worker doubt that the co-worker could assist in the lift or transfer? If so why did he attempt to lift.”

28. Exhibit 1, Tab 25, p 162

36. The response from the Plaintiff was:-

“This is not alleged. What is alleged however is the failing on the part of the Plaintiff’s employer to instruct that Plaintiff that an injured person should not under any circumstances be lifted if there was any doubt that such a person was not able to assist in any lift or transfer” [29]

29. Exhibit 1, Tab 26, p 164

37. As it turns out this was not the evidence in the case. I do not regard the reference in the said Defendant’s letter to “worker” as an admission of employment. In my view the reference was in the context of the Plaintiff’s pleading alleging that the Defendant employed a female sales representative. The Plaintiff was questioned as to the identity of the “co-worker” on the floor in the request for further and better particulars. [30] The Plaintiff stated that he did not know. [31] In any event, the Defendant did not admit employment in its Defence.

    30. Exhibit 1, Tab 25 ,p161

    31. Exhibit 1, Tab 26, p163

38. The evidence relating to training was adduced as follows:-

“Q. Were you taught anything about how to lift a patient?

A. No.

Q. Were you taught anything about how to recognise whether someone might've suffered an injury, say a broken bone?

A. Yes.

Q. Were you taught anything about the importance of a person who many have had a spinal injury not being moved until paramedics get there?

A. That's correct.

Q. As to your work at SleepMaker involving first aid, did you get any tuition at SleepMaker as to how you should conduct your duties as a first aid officer?

A. No, sir.

Q. Were you taught anything about how to identify risks when dealing risks to you, I mean, when dealing with patients who had suffered an injury. Did SleepMaker ever teach you anything about that?

A. Yes, they did.

Q. What did they teach you?

A. To look on your surroundings prior before entering, assisting somebody that's been hurt, and if there's any danger to yourself, don't go near it, call the ambulance and wait for the paramedics to arrive.

Q. Who taught you that, by the way?

A. It was HR.” [32]

32. T 7.41-8.16

39. In cross-examination, the following exchange took place:-

“Q. When you were at the training course, you were taught that you shouldn't move a casualty unless necessary; is that right?

A. That is correct, sir.

Q. You understood that to move someone unless necessary was a dangerous thing to do?

A. That is correct, sir.” [33]

33. T 23.3-.9

40. Then the following exchange takes place:-

“Q. When you went to assist the lady who fell, you advised her that it would be unsafe for you to pick her up, didn't you?

A. I told her not to move, the ambulance was on its way.

HIS HONOUR

Q. You told her not to move, did you say?

A. Yeah, I told her just to stay put and the ambulance was coming.

ROBISON

Q. She asked you to assist her in getting to her feet, didn't she?

A. She grabbed my arm and then asked me to lift her up. Assist her.

Q. She asked you to lift her up?

A. After grabbing my arm, sir, yes.

Q. You advised against that course, didn't you?

A. I did.

Q. That was because you knew that it would be unsafe?

A. Unsafe for both of us.

Q. Then she asked you again if you would assist her to her feet?

A. No, she got up she used me as a leverage to pull herself up.” [34]

34. T 24.27-25.1

41. The submissions asserted at [53]-[59] as follows:-

“53. There is no question as to the scope of the duty of care owed to the Plaintiff in the circumstances. That duty was the non-delegable duty to take reasonable care to avoid exposing the Plaintiff to an unnecessary risk of injury.

54. Having regard to the pleaded particulars of negligence, the first question to be asked is whether a reasonable person in the position of the Defendant would have foreseen that the circumstances in which the Plaintiff was required to work involved him being exposed to the risk of injury: Wyong Shire Council v Shirt, at [14].

55. Those circumstances include the fact that the Plaintiff was the first-aid officer at the relevant time.

56. In view of the circumstances of the injury and the fact of the Plaintiff being the first aid officer and receiving training in that role – the answer to the above question must be in the affirmative.

57. That conclusion is compelling in this case because on a prospective view, the Plaintiff gave evidence that he was trained not to move an injured person.

58. The circumstances were foreseeably primed for someone to be injured, potentially seriously, in unpredictable circumstances. In the circumstances of an apparent emergency,where the Plaintiff was required to hold the not inconsiderable weight of the fallen, to save her from falling again. The Plaintiff was acting in good faith, putting his training in action and responding in his role as a first aid officer. He was assisting a person who had been injured and was at risk of being injured further.

59. Liability is proved beyond doubt. There was nothing wrong with the stairs. The worker simply fell down them through her own stupidity. There is not even any evidence she was injured. Whilst the Plaintiff was attending to her comfort from a semi kneeling position she grabbed hold of his arm and pulled on it, thereby injuring him. He then stood up to try and assist her. She collapsed onto him and he suffered further pain. There is no evidence that she was in any state of emergency. She was simply looking after her own interests at the expense of a fellow worker and the Defendant is liable for her actions.”

42. In my view, the Plaintiff has not established any deficiency in the training provided that was causative of the Plaintiff’s injury. No evidence was provided nor did the submission identify as to what other or additional training ought to have been provided.

43. The Plaintff was trained not to lift and not to go anywhere near if there was a danger to him. According to his evidence an ambulance was called and he instructed the injured person not to move. The person moved nonetheless using him for support. The evidence discloses that physically he sought to support the person rather than restrain her. To the extent he was called upon to do anything, the circumstances alleged fall into the category of what the High Court described in O’Connor v Commissioner for Government Transport [35] as follows:-

“It seems fanciful to treat the question as one to be gone into and decided by some superior officer, as distinguished from the workmen on the spot, and still more fanciful to suppose that a warning or special instruction was demanded about so simple and obvious a matter requiring neither special skill or knowledge to decide and ordinarily treated as a matter for the man doing the job.”

35. (1954) 100 CLR 225 at [230]

44. It follows that the Plaintiff’s action must fail.

45. In the event that I am wrong, I proceed to consider the damages that I would have awarded had the Plaintiff succeeded.

DAMAGES: BACKGROUND

46. The Plaintiff was born in Uruguay on 5 September 1961 and was aged 49 at the time of the accident. He arrived in Australia aged 10, having had some primary schooling in Uruguay. He completed secondary education at North Sydney Technical College and proceeded to study electrical engineering at that College between 1980 and 1983. He did not complete the course. He was employed by Siemens and later by Telecom as a technical officer between 1980 and 1989. Between February 1989 and 1995, he worked with ICM Group/Ideal Kitchens as a sales and marketing business development manager. From May 1995 to August 1996, he was a machine operator/coordinator with the Australian Fashion Group. Between September 1996 and March 2000, he was a production manager for Deep Design Corporation Ltd. Between 2000 and 2002, he was a production manager for Botany Bay Productions. Between 2003 and 2006, he was the production supervisor and second in charge at Fantastic Furniture. Between 2006 and September 2010, he worked as the production supervisor and customer service coordinator for Sleepmaker, the Defendant.

47. Insofar as the Plaintiff’s previous injuries are concerned, he was involved in a motor vehicle accident, sustaining bruising, in 1986, had a sprain to his lower back whilst employed with the Australian Fashion Group in 1995/6 and injured both knees whilst at Fantastic Furniture in a fall in 2005. In evidence, but not in the chronology (Exhibit A), the Plaintiff was cross-examined regarding a motor vehicle accident in 2011. His evidence was that he could not recall it. [36] In any event it appears that there was nothing of significance relating to his current injuries which flowed from any incident in 2011 or, indeed, the other previous events described.

    36. T 39.15

48. Prior to the accident the evidence discloses that the Plaintiff was receiving treatment for stress. The clinical notes, which were Exhibit N in the proceedings, indicated that, since 23 February 2010, the Plaintiff was seeing a psychologist, Ms De Witte. It was noted that the Plaintiff had been a smoker for a very long time and would like to quit. It also recorded that the Plaintiff was suffering from high levels of stress at work. The clinical notes also record a number of other consultations with Ms De Witte on 4 March 2010, 9 March 2010, 30 March 2010 and 12 May 2010. Those notes record a need for some counselling about work and relaxation. On 9 March 2010, it was noted that the Plaintiff had a lot of stress at work. The question of the Plaintiff’s smoking was referred to by Dr Dandie in his report dated 24 January 2011. Particularly, that he continued to smoke due to stress.

DAMAGES: TREATMENT

49. Subsequent to the accident, the Plaintiff worked for a further 8 days, however, his evidence was that his back was getting sore. [37]

    37. T 14.15-.20

50. The Plaintiff was referred by his general practitioner Dr Brabant, for an MRI of the lumbar-sacral spine. The report, dated 21 September 2010, by Dr Lee noted as follows:-

“1. Degenerate L5/S1 disc with left foraminal herniation contracting to the exiting left L5 nerve route.

2. With extension, disc herniation becomes more pronounced as does nerve route impingement.” [38]

38. See Exhibit B

51. The Plaintiff subsequently came to be referred by Dr Brabant to Dr Gordon Dandie, neurosurgeon/spine surgeon. In a report, dated 9 November 2010, [39] Dr Dandie reported an L5/S1 disc herniation and L5/S1 compression with significant weakness. The Plaintiff was advised to have surgical decompression of the affected nerve root to give him the best chances of recovery. As the Plaintiff had spondylolisthesis, a fusion of the affected segment was recommended.

    39. Exhibit C

52. In a report, dated 15 November 2010, to Dr Brabant, Dr Dandie noted a history that over 2 to 3 days subsequent to the accident, the Plaintiff’s pain steadily increased in intensity and became associated with radiating down the left buttock, the posterior aspect of the left thigh and calf, and into the sole and dorsum of the left foot. He noted that the pain on his left was extremely severe and was associated with increasing paraesthesia and numbness. The Plaintiff apparently felt weakness in the leg and noticed this when trying to walk upstairs or when walking on uneven ground. He also recorded that there were no symptoms in the right leg and that there was no neck or upper limb symptoms. In his report, Dr Dandie confirmed the need for surgical decompression of the affected nerve root and a spinal fusion. He recorded that the Plaintiff was desirous of going ahead with the surgery.

53. The operation was carried out on the 25 November 2010 at the Westmead Private Hospital. [40] The Plaintiff was subsequently transferred to the Westmead Rehabilitation Centre where he remained until 3 December 2010. [41]

    40. See Clinical Notes (Exhibit D)

    41. Exhibit E

54. In a subsequent report, dated 24 November 2011, [42] Dr Dandie noted that the Plaintiff was ready for a graduated return to work and encouraged him to keep taking analgesic medication if he had any discomfort in order to increase his level of activity. The report also noted that the Plaintiff described back discomfort after undertaking physical activity and while driving, but he was encouraged nonetheless on the basis of advice that as he increased his level of activity then the level of discomfort should decrease. The Plaintiff was advised to continue physiotherapy and to observe a weight-lifting restriction of less than 5 kilograms for another six weeks.

    42. Exhibit C

55. Further, a post-surgery CT scan was undertaken on 11 January 2011. [43] In relation to this scan, Dr Dandie noted that it showed the position of instrumentation and spinal alignment was satisfactory and the inter-body graft appeared to be consolidating. [44]

    43. The report is Exhibit F

    44. See Dr Dandie’s Report dated 24 January 2011 (Exhibit C)

56. The Plaintiff was reviewed by Dr Braid, Rehabilitation Physician, on 1 February 2011. The report of Dr Braid was Exhibit G in the proceedings. It noted that the Plaintiff had developed a limp, had decreased balance, particularly in the left knee, and decreased strength in the left leg. It noted ongoing balance issues and proprioception challenges affecting gait, stair-climbing, ability and confidence. The Plaintiff was to continue with twice weekly gym visits and hydrotherapy to improve his balance, confidence and ability to return to work.

51. Further reports of Dr Braid, dated 1 March 2011 and 12 April 2011, noted that the Plaintiff was making progress through the day hospital and home exercise programs, however, Dr Braid noted that alternative duties needed to be considered as it was unlikely for the Plaintiff to be able to return to his previous “highly active level of duties.” [45]

    45. See Report dated 12 April 2011 (Exhibit G)

52. A further x-ray was ordered on 2 May 2011 by Dr Dandie. The x-ray report from Dr Newey [46] noted findings as follows:-

“There are bilateral transpedicular screws at L5 and S1 with evidence of an anterior lumbar interbody fusion. The normal R intervertebral disc height is demonstrated at L5 S1. In the neutral position, there is minimum anteriolisthesis of L5 on S1 which does not change with the patient inflexion or extension. Normal alignment is otherwise demonstrated. Intervertabral disc heights have been maintained from L1/2 to L4/5.”

46. Exhibit H

59. In a report, dated 2 May 2011, to Dr Brabant, Dr Dandie noted the findings of the Plaintiff’s x-ray films, showing a solid fusion and excellent spinal alignment. However, he noted that the Plaintiff was continuing to suffer from neuropathic pain in the left leg and that time would tell whether the nerve was going to recover. He stated, in relation to the Plaintiff’s employment, the following:-

“The most concerning thing, however, is that Joe remains out of the workforce. From a structural point of view, there is no impediment in returning to work. He states that it is a 45 minute trip from home to the office and at this stage he can only tolerate a drive of up to 25 minutes without stopping. He also finds dealing with the stairs at work a difficult issue. I have explained to Joe that all studies show patients are far better off to return to work rather than move down the total disability and impairment road. On that basis I think his insurance company and employers should make greater efforts to try and get Joe started on a graduated return to work program. The patient states that he is certainly willing to get back to work as soon as possible.”

60. A vocational plan was prepared by Stephanie Yu, vocational specialist, dated 25 August 2011. [47] That report noted that Mr Lembo was not in the “right head space” to look for work due to his current financial situation and due to his coming to terms with his injuries. In addition, Mr Lembo was employed by the Defendant at the time and had stated that it would not be appropriate for him to pursue other job options. Mr Lembo stated that he would like to focus on physical rehabilitation before putting efforts into seeking employment. [48]

    47. Exhibit 1 Tab 19

    48. Exhibit 1 p 89

61. On 24 February 2012, Dr Dandie wrote to Dr Jack Cygler, Chief Medical Officer of the United Healthcare Group Pty Ltd. In that report, [49] Dr Dandie reiterates his views about the Plaintiff’s return to work and recommends cognitive behavioural therapy to assist him. In the last paragraph of his report, he states as follows:-

“My observations of Mr Lembo during consultations have not provided me with any evidence which would suggest that this gentleman really fulfils the criteria for total and permanent disablement. I think the real issue is this gentleman’s motivation to actually return to some form of work rather than a physical impairment preventing him from doing so. I would, therefore, suggest encouraging this patient into a back to work program would be the most appropriate way forward. I firmly believe that Mr Lembo, returning to some form of employment, is in fact in his best interests from a healthcare point of view long term.”

49. Exhibit C

62. The Plaintiff’s employment with Sleepmaker was terminated on 27 February 2012. He has not been in employment since that time.

63. Dr Peter Nakhle referred the Plaintiff for an MRI which was carried out by Dr Melvin Chew on 5 July 2012. In his report, [50] Dr Chew noted that there was a hypointense lesion abutting the left L5 nerve route, suspected to be a small residual disc fragment, and suspected to be impinging the left L5 nerve route, possibly accounting for the patient’s left side symptoms.

    50. Exhibit K

64. The Plaintiff was reviewed by Dr Dandie on 13 August 2012. He noted that given the progression of the Plaintiff’s symptoms and signs, his best option would be to undergo a surgical exploration of the left L5 nerve route. The other options were to trial steroid injections or to persist with conservative therapy. Ultimately he felt that the Plaintiff would probably need assistance from a pain specialist and consideration of the spinal cord stimulator if the L5 neuropathic pain persisted. In the meantime the Plaintiff was referred for an MRI of the hip to find out whether pathology in the joint was contributing to its symptoms.

65. The Plaintiff subsequently underwent a posterior L5 neurolysis. The date of this surgery appears to be January 2013. In a follow up report of 4 March 2013, Dr Dandie noted some improvements in the Plaintiff’s left leg symptoms since the surgery. The Plaintiff was also taking Lyrica and as a consequence his left leg pain was considered more manageable. Dr Dandie noted that the Plaintiff seemed to have crossed the border in terms of a positive attitude towards managing pain rather than being pain-free. He noted that the Plaintiff was again advised about the importance of trying to get back to work to optimise his recovery but he felt that he probably required an additional two months before reaching some form of graduated work return.

66. A functional capacity assessment was carried out by Ms Alana Dark who prepared a report, dated 27 May 2013. [51] That assessment noted that the Plaintiff had a driving ability of 30 minutes, could work 5 hours a day, 5 shifts per week, without bending, stooping, lifting greater than 4.5 kilograms or performing sustained reaching at or above head height. [52] Suitable jobs identified were as a production supervisor (manufacturing), quality assurance/control officer and business development manager. The vocational specialist, Ms Ash Hedayet, stated the following in relation to these roles:-

“The above-listed roles are classified as sedentary which Mr Lembo was found to be functionally capable of undertaking as per the functional capacity evaluation results. Hence the above roles are considered appropriate in light of his current functional tolerances.

In consideration of the above, Mr Lembo is deemed a highly desirable candidate within the open labour market for the before-mentioned roles/vocational options. The labour market research in contact with employers/recruitment agencies (subject matter experts regarding the desirability of candidates) in the manufacturing industry, Mr Lembo is considered capable of earning a weekly wage within the range of $632.54 (gross) to $1138.66 (gross) whilst working at five hours per day and five days per week.” [53]

51. Exhibit 1 Tab 22

52. Exhibit 1 p 117

53. Exhibit 1 p 127

67. Dr Nakhle referred the Plaintiff for an MRI of the lumbar spine which was carried out by Dr Dandie on 28 February 2014. [54] The report of Dr Dandie noted some mild scarring surrounding the left exiting L5 nerve with the spectrum of normal post-operative appearance. He noted that if there were radicular symptoms associated with the L5 nerve, a left L5 perineural cortisone injection could be considered.

    54. Exhibit L

68. Dr Nakhle noted in a report, dated 3 February 2012, [55] that he did not see the Plaintiff returning to work any time soon. In a letter dated 27 August 2012 addressed to Mr Coquet, [56] General Manager of Operations, UHG Life Division, referred to a report from a Keith Dawes, consulting psychologist, dated 14 May 2012, recommending that the Plaintiff have a cognitive behaviour therapy to assist with pain coping. That report is not in evidence. Nevertheless it is said to indicate that Mr Lembo suffers from a combination of high stress and high levels of pain which were significant factors preventing him from entering into any form of work. Dr Nakhle disputed Keith Dawes’ assessment of Mr Lembo lacking motivation to return to some form of work. The basis for Keith Dawes’ opinion may have been linked to Dr Nakhle’s assessment that he regarded the Plaintiff as incapable of returning to work or to any suitable field that he may be qualified by education, training or experience.

    55. Exhibit J

    56. Exhibit J

DAMAGES: PLAINTIFF’S EVIDENCE

69. The Plaintiff’s evidence in chief was that, before the neurolysis, the pain was 8.5 to 9 in a scale up to 10. He stated that nowadays, with Lyrica, it is around 6. He stated that he agreed that it got worse, depending upon what he did. He agreed that when he overdid things, such as lifting, helping his wife out of the house, cleaning, washing up, it could be made worse. At that point, the pain level could reach 8 and 8.5. He stated that the pain down his leg continued and that he continued to suffer emotionally, in respect of which he had been seeing a psychologist but has had no medication. He did not feel that he could return to work with Sleepmaker or indeed his previous jobs with Fantastic Furniture, Deep Design Corporation, Australian Fashion Group or ICM Group.

70. He stated that he does not receive treatment any longer except that he does take medication, being Lyrica, Endone, Panadeine Forte and Panadol. He is no longer having psychological treatment. He stated that he can walk for 10 minutes and drive a car for a maximum of 20 minutes. He considered himself a liability for anyone who might employ him and the only job that he thought he could presently perform would be as a councillor, part-time and only for a couple of hours. He conceded that he did not have any experience nor was he offered any training in such a position.

71. In cross-examination, the Plaintiff stated that he did not see how he could actually go back to work. He agreed that he had made a statement in connection with his case that it was his view that he would never work again. He also acknowledged that he had difficulties bending or lifting repetitively and with any task or occupation involving postural strain or repetitive movement of the back.

72. The Plaintiff was moving house from Croydon Park to Ryde for 3 days from the 20 November 2014. On 15 November, he rang up Mr Peter Bell, the case manager, at QBE to inform him of the move. The Defendant undertook surveillance during that period and that surveillance is in evidence. [57] Before the recording was shown, the Plaintiff was asked about his capacity to do a number of the activities shown. He indicated that he could move rubbish bins with pain or no pain if it needed to be done. This also applied to carrying boxes. He acknowledged that he had difficulties with stairs and that it would be even more difficult for him if he were carrying an object while negotiating stairs. He also acknowledged that he had difficulties with household chores for long periods, that carrying heavy objects for a number of hours per day would be difficult but doable if it needed to be done and finally that it would be difficult for him to do physical work over a number of hours and a number of days.

    57. Exhibit 2

73. The recording showed the Plaintiff moving rubbish bins, leaning forward, applying pressure with both hands to the rubbish, carrying plastic tubs – with assistance and by himself, navigating a short staircase including while carrying things, loading up his car with drawers full of clothes and carrying a washing basket full of items.

74. When it was put to the Plaintiff that the level of physical exertion which he exhibited over the three days of surveillance was more than what he would have to go through in a typical week at work, he responded:-

“Can I once again. You haven’t asked me the question of whether I was on the medication while I was doing it.”

75. And further:-

“I can’t say yes or no to you, what you’re saying.”

76. And later:-

“Without medication I wouldn’t be able to, sir.” [58]

58. T 31.45-32.5

77. The Plaintiff also conceded that the time required to travel between Croydon Park and Ryde was around 35 minutes, depending on traffic, and that he had driven between these locations on the day in question, notwithstanding his evidence that he could only drive for about 20 minutes. He stated that he did this under medication.

DAMAGES: MEDICO LEGAL EVIDENCE

78. The Plaintiff was seen on 24 May 2011 by Dr Bentivoglio, Orthopaedic Surgeon. In his report of the same date, [59] Dr Bentivoglio noted that he was doubtful that Mr Lembo would ever return to his full, pre-injury duties. He related this to the initial injury to his back at work and the fact that he had undergone surgical treatment to his back. He stated that, although he had been helped by surgical treatment, he still had significant residual symptoms and these were likely to remain with him indefinitely. However, he also noted that the aggravation caused to the pre-existing abnormality had finished.

    59. Exhibit O

79. Dr Bentivoglio gave evidence on 25 February 2015. Prior to doing so he had viewed the surveillance footage. It was put to him that the vision showed that he had improved. He stated that, from what he had written down, compared to what he had seen, “Yes he has. He has made an excellent recovery.” At the time that he had seen the Plaintiff, approximately six months after his operation and four years before the hearing, he stated that the normal period for improvement following an operation was 50% of the patient’s best condition at 3 months and 100% of the best of how the patient’s condition would remain at 2 to 3 years after the operation. He stated that, of the objects that he saw the Plaintiff lift, there was only one which appeared particularly heavy and to lift it once a day would probably be okay, although doing so repetitively would not. Based on the video, he conceded that the Plaintiff would have the capacity to lift objects of a moderate weight a few times per day.

80. In re-examination, Dr Bentivoglio considered that the provision of information relating to the patient’s neurolysis in January 2013 would have been useful to his current opinion as well as the opportunity to have a further examination of the Plaintiff.

81. The Plaintiff was seen by Dr Elias Matalani on 15 April 2013. [60] Dr Matalani opined that the Plaintiff was unfit to return to his pre-injury employment which required a combination of desk work, hands-on work and walking around the factory. He stated that he would be unable to tolerate the long sitting required for desk work and was likely to find it difficult walking around the factory for an extended period of time. He found that the Plaintiff would be able to return to limited clerical office work but would need to find a position which enabled a considerable postural flexibility and regular rest breaks in alternate posture to avoid exacerbating his symptoms. He stated that his intolerance to prolonged sitting and his need to take regular rest breaks in alternate posture and his predisposition to exacerbation would make it very difficult for him to sustain full time employment in the open labour market. Further, it was likely to be difficult to perform as chronic pain was affecting his concentration, his capacity to make decisions and his problem solving skills.

    60. See Exhibit M

82. At p 6 of Dr Matalani’s report, it concludes:-

“Based on the above and noting that he has been absent from his usual occupation for longer than three months and was unable to work in any occupation for which he is reasonably suited by education, training or experience, and considering that this impairment is permanent and therefore he is likely to be so disabled for life, realistically, and after taking into consideration all of the above factors, I believe he is unlikely to ever engage in any occupation or work which he is likely to be able to obtain in the open labour market for which he is reasonably qualified by education, training or experience.”

83. On 20 August 2012, the patient was seen by Dr Peter Klug, forensic psychiatrist. His report was Exhibit P in the proceedings. Dr Klug’s conclusion was as follows:-

“My opinion is that Mr Lembo suffers from a chronic adjustment disorder with mixed features of anxiety and depression. An adjustment disorder is not a major mood disturbance but is, nevertheless, a significant psychiatric entity, characterised by excessive stress and/or dysfunction in response to a specific stress or stresses. In Mr Lembo’s case, the ongoing stresses are his physical symptoms, impairments and disabilities. His capacity and fitness for work would be primarily determined by his physical symptoms, as will the need for domestic assistance. His psychiatric prognosis is intimately linked to his physical prognosis.”

84. The Plaintiff was reassessed by Dr Klug on 25 September 2014 in respect of which he reported on 17 November 2014. [61] Dr Klug concluded as follows:-

“My opinion is unchanged. I believe that Mr Lembo continues to suffer from a chronic adjustment disorder with features of anxiety and depression. He is, however, predisposed to developing a major depressive disorder which is a major mood disturbance as opposed to an adjustment disorder. Clearly his chronic adjustment disorder is in the context of chronic pain, impairment and disability, full Assessment of which I will leave to other medical specialists. My rating…”

61. See Exhibit P

85. In cross-examination, the material was put to Dr Klug, relating to the Plaintiff’s previous mental healthcare plan. [62] Dr Klug stated that he did not think that this affected his conclusions about causation. Nevertheless, he conceded that if the Plaintiff’s medical symptoms improved, his psychiatric symptoms were likely to lessen. He agreed that the level of distress suffered relates to the psychological distress which relates to the difficulties which he has had with his physical capacity. [63]

    62. Exhibit 1 Tab 23

    63. T 63.30-.44

86. The Plaintiff was seen by Dr Smith, Orthopaedic Surgeon, on 30 November 2011, on behalf of the workers compensation insurer. His report [64] noted that there was no post-traumatic injury in the lumbar spine consequent to the injury of 13 September 2013. It noted that the Plaintiff was suffering various genetic abnormalities, including spondylolisthesis. He considered that the Plaintiff’s degree of fitness for work was difficult to assess because the Plaintiff was manufacturing physical signs. He concluded that the Plaintiff was better than he made out but that he was probably not fit for his old job.

    64. Exhibit 1 Tab 1

87. This opinion appears to correspond with that stated by Dr Richard Sekel, consultant in occupational medicine, in a report, dated 13 February 2004. [65]

    65. Exhibit 1 Tab 6

DAMAGES: ANALYSIS

88. In spite of the Plaintiff’s submission, criticising the vocational assessment report of Ms Ash Hedayet, dated 26 June 2013, and the functional capacity report of Ms Alana Dark, dated 27 May 2013, [66] I am satisfied that they provide an appropriate basis on which to assess the Plaintiff’s loss of earning capacity. I am supported in this view by the opinions expressed by other medical practitioners as to the Plaintiff’s capacity particularly Dr Dandie and Dr Bentivolgio (in respect of his evidence before me). The surveillance evidence is also consistent with this view. I accept that the Plaintiff was fully incapacitated from 20 September 2010 to 1 July 2013, being around the time of the report of Ms Hedayet. Thereafter, I am satisfied that the Plaintiff has remained partially incapacitated.

    66. Exhibit 1 Tab 22

89. Whilst the report of Ms Hedayet refers to the capacity to work 25 hours per week at 5 hours per day, the figures of earnings referred to at p 109 of Exhibit 1 appear to be adjustments made of approximate weekly wages from full time positions. Nevertheless, they provide a useful guide for assessing the capacity of the Plaintiff to work.

88. In assessing the Plaintiff’s capacity to perform work I have taken a conservative approach, notwithstanding the vocational evidence which suggests that the Plaintiff’s employment prospects are good in light of the Plaintiff’s injuries which might make him “an odd lot” on the labour market. [67] On this basis I would assess capacity to earn at the bottom of the range proposed by Ms Hedayet, being an amount of $570.00 net per week, for the past, and would adjust it by reference to the Consumer Price Index to $580.00 per week for the future.

    67. Dunn v Unwin (1963) ALR 280

89. The parties have agreed that the Plaintiff’s past earnings should be calculated on the basis that he would have earned $900.00 per week in the past and $950.00 per week in the future.

90. The Plaintiff is currently aged 54 and has approximately 13.5 years of his working life remaining. I would accept that, from 1 July 2013 to date, the Plaintiff has suffered a loss of $330.00 (net) per week and into the future a sum of $370.00 per week based on a capacity to earn $570.00 and $580.00 respectively. On this basis, I assess the calculation of damages as follows:-

1. From 20 September 2010 to 1 July 2013, being 145 weeks, at $900.00 per week, being the amount of $130,500.00

2. From 1 July 2013 to date, being 90 weeks, at $330.00 per week, being the amount of $29,700.00.

3. The total past wage loss is $160,200.00.

4. Superannuation, calculated at 11% on $160,200.00, is $17,622.00.

5. For the future I would allow $370.00 per week until the age of 67 on a multiplier of the 5% tables of 515.8, being the amount of $190,846.00.

6. Superannuation as agreed by the parties, at 13% on this amount, is $24,809.98.

93. On 25 February 2015, I granted leave to the parties to file written submissions in relation to the Fox v Wood component of damages. A schedule of workers compensation payments made by the Defendant’s insurer was Exhibit K in the proceedings. It showed that gross weekly payments were paid either directly to the Plaintiff or his employer in the sum of $160,993.96. Of that sum, $43,855.82 was reimbursement by the insurer to the Defendant, leaving the sum of $117,138.14 being paid as a gross payment to the Plaintiff. In relation to this latter amount, the sum of $17, 084.60 was deducted by QBE for tax withheld before payment to the Plaintiff.

94. The submissions made by the Plaintiff were that Fox v Wood, in these circumstances, should be calculated on the basis of 20 per cent of the gross sums payable by the insurer either to the insured or to the Plaintiff. The Defendant’s submission was that the sum of $17,084.60 was withheld from the Plaintiff which in percentage terms was 14.6 per cent of the gross component. Accordingly, were a similar percentage to be applied, 14.6 per cent of $43,855.82 is added to the Fox v Wood component of $17,084.60, being the amount of $6,402.95.

95. Mr Robison contended that an appropriate Fox v Wood percentage would be 15 per cent or at the most 20 per cent but only in relation to the component paid directly to the employer. Mr Robison submitted that it was inappropriate to use 20 per cent over the whole sum as there is some certainty in relation to the payments made directly to the plaintiff.

96. When the matter was relisted for argument on 13 March 2015, I raised with the parties the prospect of reaching agreement by making appropriate enquiries, submitting an agreed figure by 17 March 2015. No agreement was reached.

97. The position is somewhat unsatisfactory but it seems to me to be more artificial to apply the 20 per cent rule of thumb in relation only to the component of workers compensation paid directly to the employer. These payments were paid in differing periods and in respect of which, the progressive tax system would operate to impact on the overall tax payable, depending on the period during which they were received. In the circumstances, I accede to the Plaintiff’s submissions and would have awarded Fox v Wood in the amount of $32, 198.60, being 20 per cent of $160,993.96.

98. This would have made the damages a total of $425,676.58.

ORDERS

99. For the reasons previously indicated, there will be a verdict for the Defendant.

100. I order the Plaintiff is to pay the Defendant’s costs and grant liberty to the parties to apply within 14 days for any other order as to costs.

101. The exhibits are to be retained for 28 days.

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Endnotes

Decision last updated: 27 March 2015