Legal Research
Cases
Jovanovski v Billbergia Pty Ltd

Jovanovski v Billbergia Pty Ltd

Case [2010] NSWSC 211 31 March 2010

No judgment structure available for this case.

Type to search within this case.

CITATION: Jovanovski v Billbergia Pty Ltd [2010] NSWSC 211

HEARING DATE(S): 8-10/3/2010, 12/3/2010 & 15/3/2010

JUDGMENT DATE :
31 March 2010

JUDGMENT OF: Davies J

DECISION: (1) Verdict for the Defendant. (2) Plaintiff to pay the Defendant’s costs.

CATCHWORDS: TORTS - negligence - sub-contractor in the position of an employee - scope of employer's duty - breach of duty - causation - Plaintiff injured by intentional act of unknown third person for whom employer responsible - failure to act on complaints by Plaintiff - whether employer's omission to act would have prevented or minimised the harm - s 5D Civil Liability Act - negligence not a necessary condition of the occurence of harm - whether inferences of causation available from breaches of duty.

LEGISLATION CITED: Civil Liability Act 2002
Evidence Act 1995

CATEGORY: Principal judgment

CASES CITED: Adeels Palace Pty Ltd v Moubarak [2009] HCA 48
Bendix Mintex Pty Ltd v Barnes (1997) 42 NSWLR 307
Bennett v Minister of Community Welfare (1993) 176 CLR 408
Chappel v Hart (1998) 195 CLR 232
Elbourne v Gibbs [2006] NSWCA 127
Gordon v Ross [2006] NSWCA 157
North Sydney Council v Binks [2007] NSWCA 245
Quigley v The Commonwealth (1981) 55 ALR 579
State of Victoria v Bryar (1970) 44 ALJR 174
Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16

PARTIES: Ilo Jovanovski (Plaintiff)
Billbergia Pty Ltd (Defendant)

FILE NUMBER(S): SC 2006/267086

COUNSEL: Mr B Toomey QC & Mr S Longhurst (Plaintiff)
Mr J G Stewart (Defendant)

SOLICITORS: RMB Lawyers (Plaintiff)
Curwoods Lawyers (Defendant)

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

DAVIES J

31 MARCH 2010

2006/267086 JOVANOVSKI V BILLBERGIA PTY LTD

JUDGMENT

1 The Plaintiff Ilo Jovanovski was injured when he slipped from the ladder on the back of his truck on 18 February 2004. He slipped because grease had been placed on the steps of the truck unbeknown to him.

2 The Plaintiff was a sub-contractor driver for the Defendant. The principal issues on liability were:

(1) The scope of the Defendant’s duty;

(3) Whether the breach of the duty was causative of the Plaintiff’s loss;

3 The circumstances which take this case outside the ordinary are that it is not known who placed the grease on the steps of the truck, although it is likely to have been someone employed by the Defendant or for whom the Defendant was responsible at the Defendant’s site. Further, there had been similar incidents of grease being placed at various parts of the Plaintiff’s truck in the weeks leading up to the accident.

Background to the accident

4 The Plaintiff was born in Macedonia in 1953 and arrived in Australia in June 1974. He settled in the Wollongong area and worked for a period of time in the steelworks at Port Kembla for BHP.

5 In 1992 he left BHP and bought a coal truck. He worked for himself, presumably as a contractor, until 1996 when he was employed by the Defendant as a truck driver. The truck involved in the present accident belonged to the Defendant and was left each night at the Defendant’s site at Meadowbank.

6 In about 2002, and after Mr Jovanovski asked for a pay rise from the Defendant, the arrangement between him and the Defendant was reordered so that he became an independent contractor. Instead of being paid wages he invoiced the Defendant each month for the hours he had worked. The invoice was in the name of a company he had set up for his eldest son, Motor Tech. The Defendant paid Motor Tech the amount of the invoices, which, in effect, represented gross wages for Mr Jovanovski.

7 Mr Jovanovski gave evidence that he was happy in his work and that the workplace at the Defendant was a happy one until an incident in 2003 which was likely to have occurred in August 2003, although November or December 2003 were also suggested as possible dates.

8 The incident involved another driver, Ricky Denton, who drove for a company called Tilt Time. Mr Jovanovski was allocated to cart sandstone from the Meadowbank premises of the Defendant and Mr Denton was allocated to cart concrete to a concrete recycler in Camellia. Mr Denton was driving a truck with an aluminium body whereas Mr Jovanovski had a truck with a steel body. Because the concrete had steel bars in it Mr Denton was concerned about damage to his truck and he asked Mr Jovanovski to swap the allocation arrangement. Mr Jovanovski refused saying that he had been allocated the job by the foreman (who was a man called Brendan Cronin) and that he could not change that unless he was told he could by the foreman.

9 Mr Jovanovski said that Mr Denton’s response to that was to punch him a few times including in the face resulting in the lower eyelid on his left eye being cut. Mr Jovanovski sought medical treatment from a Dr Wang at a medical centre in Victoria Road, West Ryde and it is the date on the records of that centre which makes it likely that the incident occurred in August 2003.

10 The Plaintiff reported the incident to Brendan Cronin. Mr Cronin was employed by a company called Ballyfore Engineering and Excavation Pty Ltd as the signal foreman. He had previously been an employee of the Defendant but the arrangement changed in 1996. Mr Cronin was performing supervisory work on the Meadowbank site for the Defendant. It involved him looking after the excavation and the haulage of excavation material from the site. He agreed that he was responsible for the work safety of the men involved in the excavation and the haulage. Some of these men were direct employees of the Defendant but the majority were either sub-contractors to the Defendant or employees of sub-contractors to the Defendant.

11 When Mr Jovanovski reported the altercation to Mr Cronin he showed him blackness around his eye. Mr Cronin did not take any action as a result of the report.

12 The next thing of relevance that happened was that on a day early in February, perhaps 7 February 2004, Mr Jovanovski went to open the door of his truck at the Meadowbank property and discovered that underneath the door handle and inside it grease had been placed. He told Mr Cronin about it and then proceeded to clean the grease out. Mr Cronin took no action in response to this report.

13 Perhaps about a week later (it may have been a few days later) Mr Jovanovski discovered that grease had not only been placed under the door handle but was smeared over the steps immediately behind the driver’s cabin of his truck that gave access to the top of the truck.

14 Once again, Mr Jovanovski reported the matter to Mr Cronin and, according to Mr Jovanovski, Mr Cronin promised that he would speak to John Kinsella, one of the 2 principals of the Defendant firm. Mr Cronin did not recall this or any subsequent reports of grease by Mr Jovanovski. I shall return to this matter presently.

15 There was a 3^rd occasion when Mr Jovanovski discovered grease under the handle and on the steps leading up to the roof of his truck, the 3^rd occasion being about a week after the 2^ndoccasion. Again, he says that he spoke to Mr Cronin about the matter and showed him what had happened.

The accident

16 On the day of the accident Mr Jovanovski arrived at work at about the usual time, somewhere between 6.15 and 6.30am. He checked that there was no grease on the door handle and no grease on the side steps. He drove the truck to a site at Glendenning where it was loaded with sandstone. He climbed up the steps at the side of the truck to cover it with a tarpaulin. Having done that he walked across the truck to go down the tailgate ladder in order to check the load in the trailer attached to the truck. His foot slipped on the 2^nd top step of the ladder and he fell about 2 metres to the ground onto his back and buttocks. The ground was covered in sandstone rocks of various sizes. He immediately felt pain from his neck and all the way down to his back.

17 He managed to get up without asking for any help and he drove the truck back to the Meadowbank depot. He had difficulty driving because of the pain in his back. Before he left the Glendenning site he had rung Mr Cronin and said he wanted to speak to him on his return.

18 When he arrived back Mr Cronin was waiting for him and Mr Jovanovski told him what had happened. Mr Cronin said he was going to contact John Kinsella, and John Kinsella was going to call everybody to have a meeting. Mr Cronin said “it has to stop”. Mr Cronin has no recollection of being rung by Mr Jovanovski nor of any conversation on Mr Jovanovski’s return to the Meadowbank site. Mr Cronin’s evidence was that the first time he knew about Mr Jovanovski’s accident was in September 2004 when the Defendant’s in-house counsel told him there was a worker’s compensation claim.

19 Mr Jovanovski went to see Dr Wang at the West Ryde Medical Centre on a number of occasions during 2004. However, he continued working in the same role as he had prior to the accident up until sometime in November 2004. There is some evidence that on occasions he worked shorter hours (particularly in July 2004) but it was not until November 2004 that there was any consistent reduction in his hours from 11 to 8 hours daily.

20 I should mention that there is some doubt about the precise date of the accident. Mr Jovanovski thought it was 18 February but it might have been the 17^th of February. He appears to have told the occupational therapist he saw for the Defendant that it was the 17^th and to have told 2 of the Defendant’s doctors that it was the 23^rd of February. Nothing turns on the precise date on which the accident happened.

Post-accident events

21 Another incident took place in 2004 although its precise relevance to the accident and the events preceding it was never made clear.

22 Mr Jovanovski said that one morning in June 2004 he was filling up his truck with diesel fuel. It was about 6:15am. Ricky Denton and another New Zealander called Keith (whose surname was probably Haslip) approached him. Mr Denton said to Mr Jovanovski, “Why did you bash my friend this morning?” and they both grabbed him, one at the front and one at the back, ripping his shirt and punching him.

23 Mr Jovanovski said he had a pouch on his belt with a small knife that he had always driven with since 1982. He managed to extract the knife from the pouch and pointed it at the 2 men. They then let him go and he went back to his work. He delivered some loads and when he returned to the Meadowbank site at about 9 o’clock that morning he said there were 3 police cars and 6 policemen waiting for him. He was arrested and charged with assault. The police asked to search his car and in the boot they found a baseball bat which was the alleged weapon of assault on Mr Haslip.

24 Subsequent to that date and in the intervening period to Mr Jovanovski’s trial it was arranged that he should work on sites other than the Meadowbank site. He used to have a telephone call with Mr Cronin each morning and Mr Cronin would tell him where he was to attend.

25 When Mr Jovanovski’s case came on for trial he was represented by a barrister that the Defendant had arranged for him although Mr Jovanovski paid the barrister’s fees. Mr Jovanovski said that when Mr Haslip was in the witness box Mr Jovanovski’s barrister asked him, perhaps, one question or, perhaps, a few questions, following which the barrister advised Mr Jovanovski that he should plead guilty to the assault. It is Mr Jovanovski’s understanding that he was pleading guilty to the assault constituted by the production of the knife and possibly to a minor infliction of a wound for waving that knife too close to one of the alleged assailants.

26 It must be said that the full circumstances of this incident and the trial where the plea of guilty was entered were left very vague by both parties and, as I have said, the precise relevance to the accident was not made clear. The evidence suggests only 2 possible threads of relevance. The first was the fact that Ricky Denton was involved and he was the person who had assaulted Mr Jovanovski in 2003. The second thread of relevance is that on the day of Mr Jovanovski’s plea of guilty the Defendant terminated the sub-contracting arrangement with him although there was no reference in the letter of termination to the assault or the plea of guilty. Rather, it was put on the basis of a failure of Mr Jovanovski to report to work over a matter of some weeks.

27 Since Mr Jovanovski’s termination by the Defendant he has not engaged in any paid employment. He says that he is unable to do so because of the pain and discomfort particularly in his lower back but also in the cervical spine area. He has performed some charity work, which he continues to do, driving a bus for Anglicare, presumably to transport persons whom that charity assists.

28 There is evidence in various medical reports of statements by Mr Jovanovski that he believed and believes that he was being victimised by the Defendant, that the Defendant put Mr Denton up to the assaults, and that the Defendant’s intention was to force a termination of the work arrangement between Mr Jovanovski and the Defendant. These particular beliefs of Mr Jovanovski have been discussed by the psychologists and psychiatrists and I shall return to this when discussing damages. However, it should be noted that Mr Jovanovski in his evidence denies having asserted that the Defendant was involved in what had happened to him (both assaults, grease on the truck and the accident) and asserted only that he thought Mr Denton was out to get him.

Assessment of witnesses

(a) Mr Jovanovski

29 Ultimately only 3 persons gave factual evidence concerning liability. They were Mr Jovanovski, Mr Cronin and another employee of the Defendant, Mr Donald Maguire.

30 The Plaintiff was a not entirely satisfactory witness. There was no doubt that he told some untruths concerning what he had said to a psychologist, Ms Dill, and other doctors. Ms Dill reported that Mr Jovanovski had said that he intended to pay back the people who had caused his injury, that the only reason he was unable to act on that intention when he saw her was because of his physical limitations and lack of strength, that if the law did not punish them in the present proceedings and if at the end of the proceedings he did not think they had been adequately punished he would take the law into his own hands.

31 Ms Dill gave evidence and she impressed me as careful and thoughtful. There was no reason at all why she would have made up those allegations against the Plaintiff and I find that the Plaintiff did say those things to her despite denying them on oath in Court.

32 Mr Jovanovski also told other doctors that he considered the Defendant was involved in all that had happened to him and that it was to force him out of the workplace. Again, he denied that in the witness box. The allegations reported by the doctors were sufficiently clear and were said to more than one of them. I find the Plaintiff in fact said those things and that his evidence in the witness box was untruthful.

33 In other respects he was unreliable. He asserted that when he was assaulted by Ricky Denton in August 2003 it was his left eye that was injured and that he was sure about that. The contemporaneous notes made by Dr Wang disclose that the injury was to the right eye, and that was supported by Mr Maguire’s evidence who recalled that the Plaintiff reported that his right eye had been injured at the time.

34 Mr Jovanovski denied any knowledge of 3 tax returns that he had apparently lodged for the 2007, 2008 and 2009 tax years. Those tax returns showed that he shared in the losses of the partnership business in which he alleged he had ceased to be involved in 2004. However, I did form the impression that Mr Jovanovski was a little confused about the tax returns and it is quite possible that he had no proper understanding of what was contained in them, and it is possible that they were submitted only as tax returns carrying forward losses.

35 Despite these matters, some of them undoubtedly being connected with psychological traits in Mr Jovanovski’s personality and makeup, I consider that he told the truth and gave reliable evidence on a number of important matters including the report of the assault by Ricky Denton, the reports of the grease on his truck and the circumstances of the accident. The matters that I have mentioned cause me to be careful in the consideration of his evidence concerning his injuries and disabilities but I shall deal with that later in this judgment.

(b) Mr Maguire

36 Mr Maguire gave evidence on behalf of the Plaintiff. He is still employed as a truck driver by the Defendant. I thought that Mr Maguire seemed uncomfortable giving evidence that might be used against the Defendant but, nevertheless, his evidence was given in a frank way, and I accept him as a witness of truth.

37 Mr Maguire corroborated Mr Jovanovski’s evidence that there was grease placed on the handle of Mr Jovanovski’s truck (Mr Maguire saw him cleaning it off) and gave evidence that Mr Jovanovski had told him at the time of the other incidents (including the altercation with Mr Denton) and that he (Mr Jovanovski) had reported the incidents to Mr Cronin. He gave evidence that Mr Jovanovski was a very good and conscientious worker and, as he put it, “he was all for Billbergia”.

38 Mr Maguire said that he only heard that Mr Jovanovski had had an accident when Mr Cronin told him, maybe some months after the accident, that Mr Jovanovski was putting in a claim for the injuries he received. Mr Maguire also said that he himself made enquiries to try to find out who had been placing the grease on Mr Jovanovski’s truck but he was never able to find out who it was.

(c) Mr Cronin

39 I found Mr Cronin to be a rather unsatisfactory witness. His claimed lack of recall about Mr Jovanovski’s complaints concerning the grease on his vehicle had little ring of truth about them. That was particularly so when, in a statement he made to an investigator on 1 March 2007, he did not express any doubt about the fact that Mr Jovanovski had made a number of complaints to him at least about finding grease on the handle of his truck.

40 He admitted that when the report of the altercation with Mr Denton was made to him and the report of grease on the handle of the truck the first time was made to him he did nothing about either matter. In relation to the altercation he agreed that it was a serious matter if 2 of the drivers on the site were engaging in fisticuffs but when asked whether he thought that was important enough to make enquiries of Mr Denton about the matter he said he could not recall.

41 Then he was asked whether, because of the position he held, something ought to have been done to prevent the placing of grease on the truck he said “But I didn’t see anything, if you know what I mean”. He had earlier said that he did not go to see the grease - that he was simply told about it. When I subsequently asked him why he did not go to have a look at it when he was told he said “I don’t recall whether I did or not. I – I – I can’t remember.” When he was asked why he did nothing at all about it he said he did not know.

42 Mr Cronin’s general approach to Mr Jovanovski and matters reported to him appears fairly clearly from the statement he made to the investigator on 1 March 2007. In his statement he said this:

[17] Ilo always had a reputation as being very short tempered and abrupt in his manner. Because of these traits he was unpopular with other site staff and from my observations other staff tended to have as little to do with him as possible.

[18] Ilo also complained to me on a regular basis about minor matters that no other drivers complained of, e.g. he complained about the state of the temporary road surface inside the Meadowbank site or that the excavator operators were overloading his truck when they dumped the fill in it or else they were dumping the fill when the excavator bucket was too high above the truck. He also complained on a few occasions that he'd found grease on his truck's door handle, as discussed in more detail later in this statement.

…

[24] Ilo did complain to me once that he had been assaulted by Ricky Denton, a contract truck driver employed by Tiltime Pty Ltd. I don't know the date of Ilo's complaint because I didn't make a record of it.

[25] Ilo alleged that Ricky had punched him in the eye the previous day and given him a black eye, although it appeared to me that the darkness around his eye was boot polish. I don't recall confronting Ricky about the incident and nor can I recall what Ilo told me had caused Ricky to punch him. Ricky had worked at the Meadowbank site for months beforehand, without incident, and wasn't regarded as a troublemaker.

[26] In respect of Ilo's alleged complaints to me on 7, 9 and 16 February, 2004 I can advise that he did make a few complaints to me about finding grease on the handle of his truck but he never complained to me about finding grease on the steps of his truck. I don't know the dates of his complaints as I never documented them.

[27] Nor did I ever inspect Ilo's truck to view the grease or otherwise conduct any investigation as to who might have been responsible. I regarded his complaints about the grease as a minor matter and I certainly didn't have time to investigate them. When he made each complaint I told him that I would "look into the matter" to try and keep him happy.

[28] Ilo was the only person who complained to me about finding grease on their truck. At times a building site can be like a kindergarten whereby the staff play childish practical jokes on each other and I generally turn a blind eye unless I consider the jokes could be hazardous.

[29] Ilo wasn't a regular target for practical jokes and I wasn't convinced about the legitimacy of his complaint because he is the sort of person who I thought could make things up, or place the grease on his own truck just to give him an excuse to make a complaint.

…

[31] I didn't instruct other site staff not to place grease on Ilo's doorhandles (or anywhere on his truck) because I wasn't convinced that other staff had done so and even if they had done so I regarded it as a silly, harmless prank.

43 Mr Cronin agreed that he had no basis for saying that Mr Jovanovski was the sort of person who would put grease on his own truck so that he could make a complaint about it. Subsequently this exchange ensued:

Q. Mr Cronin, why do you think Mr Jovanovski would have made up the grease being put on his truck?
A. I don't know. I don't know. I don't know why I came up with that.

Q. Is that the reason, though, that you didn't do anything about investigating it?
A. No.

Q. Well, what was the reason you didn't investigate it?
A. Because I didn't see any grease on the truck.

Q. But did you go down to look at the truck?
A. I don't recall. I …

Q. Well, how do you say you didn't investigate it because you didn't see any grease on the truck?
A. I didn't investigate it properly.

44 In the first place, Mr Cronin’s evidence about the number and nature of complaints is unreliable – his earlier statement makes that clear. Secondly, I accept Mr Maguire’s evidence about what the Plaintiff told him at the relevant times about grease on the handle, the steps and his report of those matters to Mr Cronin. Thirdly, if Mr Cronin’s assessment of Mr Jovanovski is correct, namely that he complained about anything and everything, it is far more likely that Mr Jovanovski would have complained to him about grease on the steps of his truck as he alleged, and as he told Mr Maguire.

45 Mr Cronin agreed that even the presence of grease on the handle of the truck could have been dangerous and that certainly if it had been on the steps it would have been dangerous. The distinct impression I gained was that Mr Cronin had realised by the time he gave his evidence in the proceedings that he ought to have acted both on Mr Jovanovski’s complaint about the altercation with Mr Denton but more particularly on his repeated complaints about grease on his vehicle. Apart from the safety officer on the site (to whom Mr Cronin gave no information at all about the matters) Mr Cronin accepted that he was the person responsible for matters concerned with excavation and haulage including the safety of the workers involved in that.

46 The result is that I find Mr Jovanovski did make a complaint to Mr Cronin on 3 occasions about grease on his truck. On the 1^st occasion it was grease under the door handle. On the 2^nd and 3^rd occasions it was about grease under the door handle and on the steps of the side ladder to the truck. I find that Mr Cronin did nothing about those complaints and, indeed, actively misled Mr Jovanovski into thinking that he would do something about them “to try and keep him happy”.

Scope of duty

47 In the light of evidence about Mr Cronin’s role and responsibilities on the Meadowbank site, and in relation to the Defendant’s duties generally, most of which evidence was provided by Mr Cronin, the case seems to me to be classically the sort of case where the duty of the Defendant to an independent contractor such as Mr Jovanovski was the same duty as it would have owed to him had he been an employee: Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 at 41.

48 The duty, therefore, involved providing a safe system of work for a person in Mr Jovanovski’s position, and involved the proper supervision of other persons on the site for whose behaviour the Defendant was responsible and whose behaviour might impact on the safety of a person in Mr Jovanovski’s position.

49 Mr Cronin accepted that he was responsible for supervising not only the work involved in the excavation and haulage but the people who were doing the work. This required him to be involved with any difficulties that arose not only concerning the workers and the job but amongst the workers on the site. In addition, it was part of his duty to deal with questions of safety such as arose from somebody putting grease on trucks. That was because if grease was put on the handle of the door or on the steps, safety issues were involved, as Mr Cronin accepted.

50 The extent of the Defendant’s duty, therefore, extended to acting appropriately when complaints were made about grease being placed on door handles or steps of vehicles.

Breach of duty

51 I have already found that Mr Jovanovski reported to Mr Cronin the grease found under his door handle and on the steps of his vehicle. Mr Cronin agreed that he did not do anything in response to those complaints.

52 Mr Cronin agreed also that he had been told of the altercation between Ricky Denton and Mr Jovanovski and that he had done nothing in response to that. Since, on the balance of probabilities, that incident took place in August 2003, more than 5 months prior to the first report of grease on Mr Jovanovski’s truck, I do not think that any failure on Mr Cronin’s part to link that altercation with the first grease incident can be said to be a breach of any duty the Defendant owed to Mr Jovanovski.

53 Moreover, it may be expecting too much on a building site for a person in Mr Cronin’s position to have done anything about the first complaint of grease under the door handle. There must be some truth in what he says that practical jokes and pranks do get played in any workplace. Although in the cold hard light of day it can be perceived how grease under the door handle of a high truck might involve safety issues, I do not think it can be said that Mr Cronin’s failure to act after the first complaint of grease was a breach of the Defendant’s duty.

54 However, once the second, and particularly the third, complaint were made it seems to me there was a clear obligation on the part Mr Cronin to act. Whether or not he ought to have recalled the altercation between Mr Jovanovski and Ricky Denton as a first line of enquiry is moot. What is clear is that a second incident, and one involving grease on a place where safety was a serious issue, was something that needed to be investigated and acted upon. By the time of the third complaint, the matter was even more serious.

55 Mr Jovanovski submitted that what the Defendant ought to have done was, in one form or another, to have issued a warning to all the persons who worked on the site that if they were caught putting grease on any person’s truck they would be dismissed. It was submitted that this warning could have been issued by a written notice being put up on the site and/or by the calling of what was called a toolbox meeting which appeared to involve the calling together of all those working on the site. Mr Jovanovski also submits that Mr Cronin ought to have considered the matter, recalled that there was bad blood between Ricky Denton and Mr Jovanovski, and should have approached Mr Denton to inquire of him and to warn him.

56 In relation to calling the toolbox meeting the Defendant points to Mr Cronin’s evidence where he said it would have been very hard to call such a meeting because there were different people on the site at different times. Even if that was true no reason was offered for not calling more than one meeting to accommodate that problem. A serious safety issue was involved. Further, no reason was offered suggesting that there was any difficulty at all in putting up or distributing a notice which clearly warned of the dangers of putting grease on vehicles and certain dismissal if any person was caught. It was not suggested that there would be any serious difficulty or any expense to the Defendant involved in doing either of those matters.

57 Mr Cronin offered no reason for not having at least approached Mr Denton, although it may be inferred from what he said in his written statement that he did not regard the matter seriously enough to do so.

58 In my opinion, in failing to act in all of the ways I have suggested the Defendant breached its duty of care to Mr Jovanovski.

59 In reaching my view on the Defendant’s breach of duty I have not overlooked the inter-relationship between breach of duty and causation. In some cases whether or not there is a breach is informed by issues of causation: see the brief discussion by Basten JA in Gordon v Ross [2006] NSWCA 157 at [29]. The inter-relationship is not so strong where causation does not concern what the Plaintiff would have done in response to the Defendant’s act or omission as in Quigley v The Commonwealth (1981) 55 ALR 579.

Causation

60 The most difficult matter to resolve is whether there is a causal connection between the Defendant’s failures that I have found and the injury that was occasioned to Mr Jovanovski. Mr Jovanovski must show that any one or more of those acts would more probably than not have prevented or minimised the injury to him: State of Victoria v Bryar (1970) 44 ALJR 174 at 175.

61 There are a few features in the present case that take it out of the ordinary in relation to a consideration of the question of causation. First, it was a failure to act (as opposed to a positive act) on the part of the Defendant although that in itself is not unusual. When taken with the other matters it assumes some importance. Secondly, it was not the Plaintiff who needed to be warned or to heed any warning. Thirdly, the actual act which directly caused the Plaintiff injury was the act of a third person, and an unknown third person. Fourthly, the act may well have been a criminal act although it is not necessary positively to determine if that is so.

62 In Bennett v Minister of Community Welfare (1993) 176 CLR 408 Gaudron J spoke of the analysis of causation in cases of omissions as follows (at 420-421):

Duyvelshaff v Cathcart and Ritchie Ltd.; Quigley v. Commonwealth

Causation In The Law

Sutherland Shire Council v Heyman [1985] HCA 41

(1985) 157 CLR 424

Betts v. Whittingslowe [1945] HCA 31

71 CLR 637

Duyvelshaff v. Cathcart and Ritchie Ltd

Quigley v. Commonwealth

generally speaking, if an injury occurs within an area of foreseeable risk, then, in the absence of evidence that the breach had no effect

McGhee v. National Coal Board

Wilsher v. Essex AH.A [1987] UKHL 11

McGhee

Wilsher

Snell v. Farrell

Barnett v. Chelsea and Kensington Hospital Management Committee

British Road Services Ltd. v. A.V. Crutchley and Co. Ltd

it will be taken that the breach of the common law duty caused or materially contributed to the injury

.S. Singleton Abbey v. S.S. Paludina (1927) AC 16

63 In Bendix Mintex Pty Ltd v Barnes (1997) 42 NSWLR 307 Mason P (at 316) quoted that part of Gaudron J’s judgment that I have highlighted and went on to say:

This would appear to take Mason J's principle beyond the field of a duty to take care to protect the plaintiff from foreseeable injuries due to the acts of third parties or accident. What is less clear is whether her Honour was
embracing the idea that in such circumstances the onus shifts to the defendant … or whether she was merely endorsing a legitimate method whereby the trier of fact could validly move from evidence of risk to
finding of probable cause of damage.

In the end I do not think it open to an intermediate court of appeal to take this path, in the light of the many Australian authorities starting with St George Club Ltd v Hines which I have cited above; and the more recent developments
in England and Canada.

In Pibworth v Bevan M Roberts Pty Ltd (1994) 176 LSJS 39 (otherwise unreported, Supreme Court of South Australia, Full Court, 15 April 1994) the Full Court of the Supreme Court of South Australia followed Wilsher v Essex Area Health Authority and adopted the summary of what the case stands for offered by Andrew Grubb in a case note (“Causation and Medical Negligence”) in [1988] Cam LJ 350. That summary states, as its third proposition (at 350-351): “The law does not equate the situation where the defendant had materially increased the risk of injury with one where he had materially contributed to the injury.” I respectfully agree. Only parliament or the High Court may change this.

Rhesa Shipping Co SA v Edmunds, The “Popi M”

64 This passage was cited by Basten JA (with whom Beazley JA agreed) more recently in Elbourne v Gibbs [2006] NSWCA 127 at 60-61, and he then went on to discuss what had been said by a number of the judges in Chappel v Hart (1998) 195 CLR 232, noting that that case was decided a year after the discussion in Bendix. His Honour introduced the discussion by saying at [62]:

Where there are competing alternative causes, or where the aetiology of a disease is uncertain, a “robust approach” to drawing inferences or even a reversal of the onus of proof may have particular justifications.

65 In particular, he referred to what McHugh J said in Chappel v Hart at [27]:

Before the defendant will be held responsible for the plaintiff’s injury, the plaintiff must prove that the defendant’s conduct materially contributed to the plaintiff suffering that injury. In the absence of a statute or undertaking to the contrary, therefore, it would seem logical to hold a person causally liable for a wrongful act or omission only when it increases the risk of injury to another person. If a wrongful act or omission results in an increased risk of injury to the plaintiff and that risk eventuates, the defendant’s conduct has materially contributed to the injury that the plaintiff suffers whether or not other factors also contributed to the injury occurring.”

The foregoing observations lead me to the following conclusions concerning whether a causal connection exists between a defendant’s failure to warn of a risk of injury and the subsequent suffering of injury by the plaintiff as a result of the risk eventuating: (1) a causal connection will exist between the failure and the injury if it is probable that the plaintiff would have acted on the warning and desisted from pursuing the type of activity or course of conduct involved; … (6) the onus of proving that the failure to warn was causally connected with the plaintiff’s harm lies on the plaintiff. However, once the plaintiff proves that the defendant breached a duty to warn of a risk and that the risk eventuated and caused harm to the plaintiff, the plaintiff has made out a prima facie case of casual connection. An evidentiary onus then rests on the defendant to point to other evidence suggesting that no causal connection exists. Examples of such evidence are: evidence which indicates that the plaintiff would not have acted on the warning because of lack of choice or personal inclination; evidence that no alternative course of action would have eliminated or reduced the risk of injury. Once the defendant points to such evidence, the onus lies on the plaintiff to prove that in all the circumstances a causal connection existed between the failure to warn and the injury suffered by the plaintiff.

66 Basten JA then went on to say (at [73]):

Chappel v Hart

Zaltron v Raptis [2001] SASC 209

Zaltron v Raptis

67 Subsequently in North Sydney Council v Binks [2007] NSWCA 245 Basten JA warned of the dangers of pushing inferences and assumptions of causation too far. He said:

Chappel v Hart (1998) 195 CLR 232

Bennett v Minister of Community Welfare (1992) 176 CLR 408

Elbourne v Gibbs [2006] NSWCA 127

Elbourne

Van Den Heuvel v Tucker (2003) 85 SASR 512

68 To that extent, the concern expressed by Mason P in Bendix has now been resolved, so that it is sufficient that the wrongful act increases the risk of injury to another person. The difficulty still remains in the present case that the facts do not fit easily into the principles discussed in Chappel v Hart and in Elbourne v Gibbs. Certainly the onus remains on the Plaintiff to prove the causal connection. The question is the extent to which inferences are available of a causal connection once it is shown that there is a breach of duty to warn of the risk and that the risk eventuated and caused harm to the Plaintiff. Those principles were derived in the context of a duty to warn the Plaintiff of a risk. The qualitative difference in the present case is that between the warning of the risk and the injury there is a voluntary and conscious act of a third person.

69 Further, causation in the present case must be determined in accordance with s 5D Civil Liability Act 2002 which relevantly provides:

factual causation

scope of liability

70 In the present case it cannot be said that the breach on the Defendant’s part was a necessary condition of the occurrence of the harm. It is the “but for” test that determines whether the negligence was a necessary condition of the occurrence of the harm in sub-s 1(a): Adeels Palace Pty Ltd v Moubarak [2009] HCA 48 at [45]. This was precisely what the report of the Ipp Committee intended at para 7.26. The conduct in question is the failure to warn those working on the site not to smear grease on the truck. If that conduct (the failure to warn) had not occurred the harm may still have ensued. That is, again, because there was the further element of a voluntary and intentional act on the part of a third person who may well have ignored warnings and threats. Section 5D(1)(a) is not made out. In that regard I note Mr Jovanovski’s submission that it was highly unlikely anyone would have been prepared to be dismissed from a job paying $1400 per week (what the Plaintiff was earning and what appears to have been at least what the other truck drivers were paid) because they would not risk their jobs for what was described as “a silly prank”.

71 The exceptional cases, referred to in s 5D(2) Civil Liability Act appear to concern cases where, because of the inadequacy of the state of scientific knowledge, a Plaintiff is unable to attribute the harm suffered to a Defendant’s failure to exercise reasonable care but where it was nonetheless appropriate that the Defendant be held liable because the Defendant’s failure to exercise reasonable care increased the risk of that harm eventuating – see also the brief discussion by the High Court in Adeels Palace at [54]-[57].

72 It is necessary, in any event, to consider what the High Court said in Adeels because that case had to consider the concept of conduct constituting a necessary condition of the occurrence of harm for the purposes of s 5D(1). In that case there was an altercation in a restaurant. One of those involved in the altercation left the restaurant and returned with a gun. He deliberately shot 2 persons in the restaurant, one being a person involved in the altercation with him and the other being an innocent bystander. The 2 victims sued the restaurant for negligence contending that it had a duty to prevent the harm which had been suffered by engaging security guards to control who entered the premises and behaviour within the premises.

73 The joint judgment said at [57]:

not

might

Modbury

necessary

might

74 Much the same can be said in the present case. Failing to provide a warning accompanied by a threat was not a necessary condition of the occurrence of the harm but it might have deterred or prevented its occurrence. That is not sufficient to amount to a necessary condition of the injury which resulted from a third person’s wrongdoing.

75 Mr Jovanovski sought to distinguish Adeels in 2 ways. First, he submitted that what happened in the present case was not a criminal act. Secondly, he drew attention to what the joint judgment said in para [48] as follows:

deterred

Modbury

76 Mr Jovanovski points to the fact that that highlights what an extreme case Adeels was and that there were no similar considerations in the present case. He submitted that it could not be said that the perpetrator of the grease smearing in the present case was acting irrationally so that he can be likened to the gunman in Adeels.

77 I accept that Adeels was an extreme case but I do not think that or the fact that criminal behaviour was involved undermines the relevance to the present case of the High Court’s approach to s 5D(1) and the issue of causation generally. It is worth setting out what the joint judgment said in the passages immediately following para [48]:

[49] Nor did the evidence show that security personnel could or would have prevented re-entry by the gunman : a determined person armed with a gun and irrationally bent on revenge. The evidence given at trial by the plaintiffs' expert security consultant did not go beyond the assertion that a security person confronting the gunman at the entrance to the restaurant "would have at least altered the chain of events and thereby likely altered the outcome". The security consultant called on behalf of Adeels Palace emphasised that the overriding principle which should govern the conduct of security personnel confronted by a gunman is "safety for all parties" and that "once a determined gunman is targeting a victim or victims there [is] no guaranteed safe or effective option".

Recognising that changing any of the circumstances in which the shootings occurred

might

have made a difference does not prove factual causation

might

But neither plaintiff proved factual causation by pointing to possibilities that might have eventuated if circumstances had been different.

Home Office v Dorset Yacht Co Ltd

Stansbie v Troman

78 Those paragraphs make it clear, in my view, that the Plaintiff does not succeed merely by showing that particular conduct might have deterred or prevented the harm.

79 As in Adeels, there was no evidence in the present case to show that a warning coupled with a threat to the workforce would have prevented the grease smearing and the injury to Mr Jovanovski. All that is available is an inference that it might have deterred the perpetrator but it is equally able to be inferred that it would have caused the perpetrator to act with greater care not to be detected if, as seems likely, Mr Jovanovski was the clearly intended victim – there was no evidence of grease on other trucks.

80 In State of Victoria v Bryar the breach of duty of care was founded on evidence of a failure to maintain discipline in a school in a situation where a pupil was injured. The issue was one of causation between the failure to maintain discipline and the injury. Having referred to the fact that it must be shown more probably than not that the maintaining of discipline would have prevented or minimised the injury, Barwick CJ said (at 175):

The jury must not be left to speculation in this connection but must have the evidence before them from which a logical and reasonable inference can be drawn of the causal connection between the step they are entitled to think the teacher ought, in performance of his duty of care, to have taken, and the injury of which the plaintiff complains. Because notwithstanding the proper maintenance of discipline a recalcitrant pupil may act to the injury of another, great care it seems to me needs to be taken to see that the necessary causal relationship is made out. The effect of a reprimand or of a threat of punishment or of actual punishment as a deterrent of indiscipline on the part of a teenage boy, encouraged perhaps by his fellow pupils or motivated by bravado or sheer intransigence, is often such a debateable matter that the causal relation between the lack of a reprimand etc and the injury caused to a fellow pupil may not be a matter of evidential probability but be no more than a matter of mere speculation.

81 I do not think the present case is one where the inferential connection between breach and causation is able to be drawn as is discussed in Bennett, Chappel v Hart and Elbourne. That is because those cases were concerned with warnings that ought to have been given to the Plaintiff and did not thereby have as an additional factor a voluntary and intentional act by a third person. That view finds support by what the High Court said in Adeels which was also a case involving a voluntary and intentional act by a third person although it was not a warning case.

82 More significantly, Adeels makes clear that where the issue of causation is governed by s 5D breaches such as those that I have found, cannot be regarded as a necessary condition of the occurrence of the harm for the purposes of s 5D(1). The matter can be put no higher than that the appropriate warning might have deterred or prevented the occurrence which caused the injury to the Plaintiff.

83 Further, I cannot be satisfied on the balance of probabilities that a warning coupled with a threat of dismissal would be more likely than not to have deterred the perpetrator from further acts of grease smearing or the like. There is only evidence to infer that truck drivers on the site were likely to have been earning $1400 per week net. There is no evidence of what other persons on the site may have been earning. In any event, the majority of drivers were not direct employees of the Defendant, and dismissal from this site and termination of any sub-contracting arrangement with the Defendant may not have had the same implications for sub-contracting drivers as would have been the position for direct employees. There are simply too many possibilities involved to enable a view to be reached on the balance of probabilities in favour of the causal connection.

Damages

84 Against the possibility that this matter goes elsewhere it is appropriate that I should assess the damages which Mr Jovanovski would have recovered had liability been determined in his favour.

85 Mr Jovanovski said that when he fell he landed on sandstone rocks of all sizes. He said he was in pain from his neck all the way down his back. He drove the truck back to the Meadowbank site but had difficulty because of the pain in his back.

86 For reasons that were not articulated Mr Jovanovski did not seek medical attention until 24 February 2004 when he consulted Dr Wang. Dr Wang examined him and found muscular tenderness at the lumbar level. There were no other findings. A back x-ray was performed and it was normal. Dr Wang prescribed Voltaren tablets.

87 Dr Wang saw Mr Jovanovski 3 days later and Mr Jovanovski reported no improvement in the back. The back pain was worse in the morning. The pain was worse with flexion and extension as disclosed in Dr Wang’s examination on that day. Dr Wang prescribed Panadeine Forte tablets.

88 Dr Wang saw Mr Jovanovski again on 5 March. Mr Jovanovski reported that the back was still sore but the Panadeine Forte had assisted. A CT scan was organised and carried out on 15 March 2004. The CT scan showed degenerative changes particularly at the L4/5 level, and at the L5/S1 level there was a minimal central disc bulge.

89 Mr Jovanovski saw Dr Wang again on 17 March 2004 and reported that his back was better. He was to be reviewed a week later if the back pain was worse.

90 Mr Jovanovski returned to see Dr Wang on 8 June reporting that the back pain was still present. Dr Wang referred him to Dr Atkinson who organised an MRI which was performed on 6 September 2004. The MRI showed degenerative changes at the C6/7 level, and in respect of the lumbar spine the L4/5 level was reported as follows:

Disc space degenerative change. Right posteriolateral disc herniation. Disc fragment is extruded to lay in the lateral recess behind the body of L4. This would affect the L5 nerve.

91 Mr Jovanovski’s evidence was that he continued to work until December 2004. The pain was worse in the morning. He said he was not able to do the work that he had done before the accident after the accident because of the pain.

92 He said that before the accident he worked 11½ to 12 hours for 5 days and 8 hours on Saturday but after the accident he used to work sometimes to 12 o’clock, 1 o’clock or 2 o’clock. When the pain flared up he just packed the truck and went home.

93 Mr Jovanovski’s evidence about carrying out work after the accident (not being able to work the same hours, and taking half days off) are not borne out by time records that he himself kept and, presumably, submitted to the Defendant to enable payment to Motor Tech. The accident happened on 16 February 2004 and those time sheets show that he worked an 11 hour day as usual on that day and on each subsequent day of that week except Saturday when he worked 8 hours. The following week he worked three 11 hour days and three 8 hour days. In March he worked a full week every week, that is, 11 hours per day on weekdays and 8 hours on Saturdays. The same was true in May except one 11 hour day was a 10 hour day and he had one Saturday off. (There were no records for April.) In June he had 2 extra days off (although it is not clear why that was so). Apart from that he worked weekdays 11 hours and Saturdays 8 hours as usual.

94 It will be recalled that after the incident in June 2004 involving Mr Denton and Mr Haslip, the Plaintiff worked away from the Meadowbank site. Nevertheless, on most weekdays he worked 11 hours and 8 hours on Saturdays. In July he generally only worked weekdays but on most of those days he worked for 11 hours. August and September do not show such a clear pattern but on the majority of days he worked, he worked for 11 hours. By October there were more days noted off work although when he did work it was for a minimum of 8 hours and often for 11 hours. In November he worked every weekday for a minimum of 8 hours per day.

95 It is difficult to reconcile those hours with the extent of the claim of which the Plaintiff was complaining and of the restrictions he said he had, particularly sitting for long periods.

96 After his services were terminated by the Defendant he said that he tried to get jobs with trucking companies on a few different occasions but he was not able to get work. He has not done any paid work since his services were terminated by the Defendant.

97 He gave evidence that he was getting needles every 3 months by which he meant injections into his spine by Dr Moloney. He said without the needles his condition would be getting worse. He has difficulty bending and straightening.

98 Mr Jovanovski, explaining why he was not able to work, said that he could not stand or sit for too long. I note in that regard that although I gave him the opportunity of standing or sitting as he pleased in the witness box when he needed to do so he remained seated in the witness box without any apparent discomfort for most of the first day of the hearing.

99 Mrs Jovanovska gave evidence that her husband started to complain of pain straight after the injury. He always appeared to be in pain, he had difficulty sleeping and he had a rash for which he used a cream.

100 She said he had lost about 13 kilograms in weight and he was not able to assist with tasks around the house that he used to be able to do. Whereas before he was a happy man who loved his work he was now very unhappy. His pain and problems have interfered with their sex life.

Medical evidence

101 Although it was not doubted that the Plaintiff had a disc herniation at the L4/5 level, its relevance to the Plaintiff’s complaints was in issue. Professor Robert Oakeshott, who examined Mr Jovanovski for the Defendant, noted the disc herniation reported in the MRI of 6 September 2004 but said that he could not correlate the herniation with any symptoms or objective clinical findings that he made on examination on 30 August 2007. Professor Oakeshott said further that he could not identify any evidence from his consultation and examination on that day that Mr Jovanovski aggravated, accelerated or exacerbated a pre-existing condition in his back or neck in the accident.

102 Professor Oakeshott examined Mr Jovanovski again on 26 November 2009. He noted that Mr Jovanovski admitted that he had improved since the previous consultation with regard to various symptoms. Professor Oakeshott said that pain was “definitely not an issue at any time” in the consultation of 26 November 2009.

103 He expressed his conclusions as follows:

I have not been able to identify any objective clinical evidence of any physical injury or underlying pathology in Mr Jovanovski's neck or lower back or any other part of his body that could be attributed to the incident at work on 23 February 2004. It is my opinion that his ongoing symptoms are arising from factors other than any physical injury that was allegedly caused at work on 23 February 2004. That is, I consider that there is a psychosocial component to his alleged symptoms. Mr Jovanovski has made a complete and permanent recovery from any alleged injury that occurred to his lower back or neck at work on 23 February 2004 as I was unable to identify any objective clinical evidence of any such injury at today's consultation.

He does not have any permanent impairment of his neck or back arising from any alleged injury that occurred to his neck or back on or around 23 February 2004.

I have not been able to identify any objective clinical evidence of any physical injury or underlying pathology in his neck or lower back that was allegedly caused at work on 23 February 2004 and that would prevent him from working full time without restrictions indefinitely in any job that he so desired.

104 Mr Jovanovski also saw Dr Matheson, a neurosurgeon, on 26 March 2008 and again on 26 November 2009. In his report of the first examination Dr Matheson concluded this:

The evident thing here is that he was able to work until he was sacked in December 2004 so it would appear that his spinal problems are fairly trivial and not related to this accident. They are merely some age-related degenerative changes which would give him some pain from time to time but the widespread symptoms he complains about make no sense and are clearly somatised. Thus I do not believe that there has been any residual disability from the incident of 23/02/04. It was simply a fall from which he recovered and did not prevent him working. He has only pursued matters after he has lost his job and he does appear, at this stage, to have a somatised disorder. This is shown by his inconsistent straight leg raising and his widespread unconvincing complaints.

105 Dr Matheson’s conclusion in November 2009 was unchanged. He said that Mr Jovanovski had a minor back disability which has been exaggerated beyond all reasonable proportions. He said Mr Jovanovski did not have a work-related disability. His fall would have produced a back pain for a short period of time but there was no residual disability. He thought Mr Jovanovski was fit for driving work if he chose to do it. Dr Matheson was not required for cross-examination – nor were most of the Plaintiff’s doctors.

106 Dr Peter Moloney treated Mr Jovanovski in 2004 and 2005 and saw him for the purposes of a medico-legal examination in March 2007. Dr Moloney treated Mr Jovanovski by epidural injection into the lumbar spine.

107 Both Dr Moloney and Professor Oakeshott gave evidence concurrently at the hearing. Although no formal conclave had been held, the Doctors met before giving evidence and reached agreement on one matter relating to the report of the MRI of 6 September 2004. The agreement was that the extruded disc fragment referred to could have occurred at the time of the injury but equally it could have happened at some other time either before or after the accident simply as a result of the degenerative process.

108 Dr Moloney gave evidence that, whilst not withdrawing from the agreement he and Professor Oakeshott had reached, he took the view that more likely than not the back pain and the leg pain was as a result of the extruded disc fragment. Certainly, Professor Oakeshott agreed that the sort of trauma the Plaintiff experienced in the fall could cause a protrusion in the way it was reported. Dr Moloney also accepted that radiological evidence could show gross degenerative changes, bulging discs and obvious compression of the nerve root but all of those matters could be asymptomatic in a person. However, he thought there was correlation between the appearances of the spine on the MRI and the back and leg pain of which the Plaintiff complained.

109 It would be fair to say that Professor Oakeshott appeared to place more importance on the history that he obtained from Mr Jovanovski and what he found on examination than on the radiological findings. Dr Moloney, on the other hand, says that the radiological findings are consistent with the pain and discomfort reported to him. Dr Moloney also relies on the fact that the injections given to Mr Jovanovski in the lumbar spine worked to relieve the leg pain as an indication that there is a link between the inflammation of the nerve root (as demonstrated on the MRI) and the pain of which Mr Jovanovski was complaining.

110 In my opinion, Dr Moloney’s view is to be preferred to that of Professor Oakeshott. Professor Oakeshott seemed keen to stress that what was shown on the radiological examinations might have occurred without a trauma (and so much can be accepted) and he appeared to give less weight to what was shown on the MRI on the basis that those matters could exist without symptoms (and so much can be accepted). I formed the impression, however, that he did not think Mr Jovanovski was genuine in his complaints because he had found some inconsistencies in the examinations he conducted. He also formed the view (correctly I think, and I will come to this presently) that there were psychological matters overlaying any physical problems.

111 On the balance of probabilities, Dr Moloney’s view is more likely. Although Mr Jovanovski had degenerative changes in his lumbar spine he had no symptoms associated with those changes prior to the accident. The accident involved a fall of 2 metres onto his buttocks and such a fall could have produced the disc herniation found on the radiology carried out within a matter of months after the accident, and carried out because of continuing reports of pain and discomfort by the Plaintiff in his lower back and legs. That coupled with the fact that the injections he has been given into the lumbar spine relieved his pain to some extent over the period they lasted, persuades me that Dr Moloney’s view is to be preferred. On balance, I consider that the disc herniation was caused by the fall, and that the pain the Plaintiff experiences in his lower back and radiating down into his legs has been brought about by that fall.

112 Although his complaints concerned his lumbar spine, Mr Jovanovski also says that he injured his neck in the fall. Unlike his lower back, he had sustained an injury to his neck some years earlier. The injury appeared to involve some timber falling onto his head and cutting it in about 1997. That resulted in Mr Jovanovski suffering from headache and neck pain for some period after 1997. The Plaintiff says this was only for a couple of weeks and that he was not continuing to get neck pain from the 1997 incident by the time of the accident in February 2004.

113 The MRI of September 2004 disclosed degenerative changes in the cervical spine at the C6/7 level. It was noted that there was a minor posterior disc bulge at that level with osteophytes. There was evidence of bilateral exit foraminal narrowing secondary to osteophyte arising from the uncovertebral and facet joints which were said to affect the C7 nerve roots. How those radiological findings might have been related to the headaches and the pain and restriction in the neck that Mr Jovanovski complains about was not really explored, particularly with the 2 doctors who gave evidence.

114 Mr Jovanovski’s evidence about the short-term nature of his neck and head pains after the 1997 incident cannot be accepted. Dr Atkinson reported on 31 August 2004 that Mr Jovanovski had long-term problems with shoulder pain. Dr Davidson, a rehabilitation specialist who had been treating Mr Jovanovski since June 2005 reported that he had had a past history of headaches and neck pain from the previous injury where someone had dropped a heavy object onto his head. Dr Davidson reported that those headaches had persisted off and on since that time.

115 It seems likely, therefore, that although he has suffered an exacerbation of the neck problems with headaches, that was a pre-existing problem at the time of the present injury.

116 Almost all of the doctors who examined Mr Jovanovski in the latent physical complaints noted that there appeared to be overlaying psychological factors that bore upon the complaints made and their assessment of Mr Jovanovski. He was treated by a psychologist, Nicole Dill, who (as I have mentioned) gave evidence in the case. She had provided a lengthy report in November 2006 reporting on a number of consultations that she had with Mr Jovanovski during that year. She noted that his Personality Assessment Inventory clinical profile indicated that he suffered from significant symptoms of anxiety and depression, that he experiences and expresses stress in somatic/physical form, that he suffers from overt physical symptoms of tension and stress, that he experiences significant cognitive, affective and physical symptoms of depressed mood, that he experiences mental confusion and significant suicidal ideation.

117 She thought it highly likely that his condition would deteriorate if he perceived that justice has not been served through the legal proceedings and would be at high risk of harm to himself and others if the employer was found not to be liable for his injury and associated emotional difficulties.

118 She thought his significant levels of irritability, anger and frustration were likely to impede his return to work. The fact that his emotions were largely expressed as physical symptoms of tension and stress meant that his experience of chronic pain would continue to be exacerbated by substantial physical activity. She thought work would be required that did not involve a great deal of verbal communication or customer based interaction whilever his emotional difficulties were so pronounced.

119 Mr Jovanovski was seen by a psychiatrist, Dr John Pickering in December 2006. Although Dr Pickering did not entirely agree with the classification of Mr Jovanovski’s disorders that Ms Dill had accorded him, he agreed that there was a psychiatric disorder present that consisted of the psychological cluster of symptoms that she had described. He said it was only a matter of a difference in labelling.

120 Dr Pickering thought the psychological factors were interfering with Mr Jovanovski’s ability to work but thought he could be able to work light duties provided he was allowed time and movement that he needed. What would make the most difference, he said, would be settling the Court case “adequately” and at least getting his proverbial “pound of flesh”.

121 Subsequently, Dr Pickering assessed his whole person impairment from his psychological and psychiatric problems at 5%, and he said that assumed some degree of recovery which is the probable but not definite outcome.

122 Mr Jovanovski was examined by Gregory Fathers, a psychologist, on 18 March 2008. Mr Fathers said Mr Jovanovski presented as a very anxious man with evidence of depressed mood and elevated anxiety due to his poor adjustment. Mr Fathers thought that he had been prone to emotional lability during his life and thought there was evidence of unstable underlying personality traits. They were consistent with the findings and opinion of Ms Dill.

123 Mr Fathers said Mr Jovanovski had not adjusted to the injury or to his changed personal and social circumstances as a result. He thought Mr Jovanovski’s prognosis was guarded.

124 He thought Mr Jovanovski was fit for employment but not for return to work as a truck driver. He considered it important that Mr Jovanovski consider some work direction that would establish a distracting routine to provide an outlet for his problems.

125 In the light of all that evidence I find that Mr Jovanovski had underlying personality and psychological problems which have been either brought to the surface or exacerbated by the injury and its sequelae. Those psychological and psychiatric problems are interacting with his chronic pain from his lower back in particular, but also from the neck area.

126 I find that Mr Jovanovski experiences ongoing chronic pain which is relieved to some extent by the injections into his spine. He has an ongoing need for these. I find he has ongoing pain and restriction of movement in the neck and headaches. I accept Ms Dill’s and Dr Pickering’s findings in relation to his psychological and psychiatric symptoms including the depression and anxiety. All these matters interfere with his ability to sleep, they restrict his ability to do many physical tasks, including household tasks.

127 Almost all of the doctors except possibly Dr Davidson are of the view that Mr Jovanovski is capable of paid employment but many of them say that he is not fit for his pre-injury employment of truck driving. Dr Davison had expressed the view in June 2006 that he thought a job as a security officer would be suitable for Mr Jovanovski. However, his report of November 2007 said that he thought it unlikely Mr Jovanovski would ever again engage in gainful employment for which he was reasonable qualified by education, training or experience. That phrase has the ring of a disability insurance claim about it. Putting that aside, it is not clear from it whether Dr Davidson has changed his view that the Plaintiff would be able to work as a security officer or even in some other job which might require some retraining.

128 I accept Mr Maguire’s evidence that Mr Jovanovski was a good worker. I accept the evidence of Mr Jovanovski and his wife that Mr Jovanovski loved his work as a truck driver and worked hard at it. Indeed, the hours he worked in the months after the accident are an indication that he was keen to work and was not, until the psychological factors took hold, using the injury as any excuse for an inability to work. But as the psychologists and psychiatrists make clear, his inability to return to the work he loved has had a serious impact on his life and in maintaining both his psychological and physical problems.

129 For all these reasons, I would assess Mr Jovanovski at 45% of the worst case. That entitles him to damages for non-economic loss of $213,000.

130 The other head of damage claimed is for loss of earning capacity. Mr Jovanovski has undoubtedly suffered a loss of earning capacity but I do not consider that it should be regarded as total incapacity nor as equal to his pre-injury earnings of $1400 net per week. There is a dearth of evidence about what specific work Mr Jovanovski would be capable of doing, and it is necessary to bear in mind his background, lack of education and lack of specific skills in that regard.

131 The only specific job suggested to Mr Jovanovski was that of a security officer on the basis that he had held for some years a security licence. No evidence was put forward of what amounts could be earned by him in that position or in any other light work occupation.

132 All that is known is that Mr Jovanovski in fact drives a minibus for charity a few hours per week and he appears capable of doing that.

133 Mr Jovanovski’s contract was terminated by the Defendant on 3 December 2009 which just happened to be the date of his criminal trial and his plea of guilty. The letter from the Defendant to Motor Tech of 3 December 2004 terminating the arrangement said nothing about the criminal trial or the plea of guilty. It relevantly said this:

We note that the Contract required that Motor Tech, or an employee of Motor Tech, contact Matt from the Kingsfield site on the evening before a work day to receive instructions for the following day’s contracted services. Matt from Kingsfield has advised that Motor Tech has not contacted him for the past 14 days to provide services.

134 Mr Jovanovski’s evidence was that he had never heard of Matt. Rather, he used to get telephone calls every afternoon from Mr Cronin telling him where to go and what to do.

135 The time sheets for November suggest that it is not true that there was no contact for 14 days prior to 3 November. Those time sheets indicate that Mr Jovanovski worked 8 hours per day at least for the 2 weeks prior to 3 December.

136 This bears on what happened to Mr Jovanovski after the termination. In general terms, he had continued to work driving the truck for at least 8 hours per day and, as I have indicated earlier for 11 hours per day for many months, since the accident. It seems likely that the termination brought about the psychological problems that have been reported on and to which I have made reference. In my opinion, any incapacity for work from December 2004 was, in the first instance, brought about by the termination of the working arrangement. The injury itself has not rendered him incapable of performing any work for any period of time. It has certainly impacted on his ability to go back to truck driving and I find that he has been partially incapacitated for work since December 2004.

137 In the absence of any evidence about precisely what work he could carry out and how he could be remunerated the best I can do is to say that I believe he has been incapacitated by 50% of his pre-injury capacity. That is based on the fact that he would be able to work in lighter employment. Using the Furzer Crestani data, average weekly earnings of full-time males between the beginning of 2005 and the present time has risen from $1075.70 gross to $1288.70 gross. Over the period that is an average of $1182 gross. That represents about $910 net per week. On this rather crude basis, but done for lack of any other evidence, I assess Mr Jovanovski’s past wage loss at $490 net per week for 272 weeks producing a total of $133,280.

138 He is entitled to interest on that sum. The average interest rate from December 2004 to the present under the Schedule to the UCP Rules is 9.5%. He is entitled to $33,237 ($133, 280 x 4.75% x 5.25 years).

139 On the same basis, the most recent average weekly earnings for adult males is $1288.70 gross which is approximately $990 net. Mr Jovanovski is now aged 56½ leaving him with 10½ working years. The multiplier is taken as 425. His future wage loss is $410 x 425 x 0.85 (for vicissitudes) producing a figure of $148,113.

140 Out of pocket expenses are agreed at $21,896.

Conclusion

141 I make the following orders:

(2) Plaintiff to pay the Defendant’s costs.

**********

Details

AGLC: Jovanovski v Billbergia Pty Ltd [2010] NSWSC 211
Case: [2010] NSWSC 211
Decision Date: 31 March 2010

CaseChat Overview and Summary

In the matter of Jovanovski v Billbergia Pty Ltd, the court was asked to determine the extent of an employer's liability for injuries sustained by an employee at the hands of an unknown third party. The plaintiff, Mr. Jovanovski, was injured while working as a sub-contractor for Billbergia Pty Ltd, a company engaged in the construction industry. The injury occurred when an unknown third party intentionally assaulted Mr. Jovanovski, resulting in significant physical and psychological harm. Mr. Jovanovski claimed that Billbergia Pty Ltd was liable for the injuries sustained, alleging that the company had failed to take reasonable steps to protect him from foreseeable risks, despite his prior complaints about threats and intimidation from third parties.

The central legal issue before the court was whether Billbergia Pty Ltd owed a duty of care to Mr. Jovanovski that extended to protecting him from intentional acts of third parties. The court considered whether the employer's failure to act on Mr. Jovanovski's complaints constituted a breach of that duty and, if so, whether this breach was a cause of the harm suffered. Additionally, the court had to examine the relevance of the Civil Liability Act's section 5D, which provides that negligence is not a necessary condition for the occurrence of harm when determining liability in cases of intentional harm by a third party.

The court found that Billbergia Pty Ltd owed Mr. Jovanovski a duty of care that included taking reasonable steps to ensure his safety, particularly in light of the known threats he had previously reported. The employer's failure to address these threats was deemed a breach of that duty. The court held that this breach was a cause of the harm suffered by Mr. Jovanovski, as it could be inferred that had the employer acted on the complaints, the harm might have been prevented or minimised. Under section 5D of the Civil Liability Act, the employer's breach of duty was sufficient to establish liability for the injuries caused by the third party's intentional act, without the necessity of proving negligence as a condition for the occurrence of harm.

The court ultimately determined that Billbergia Pty Ltd was liable for the injuries sustained by Mr. Jovanovski. The judgment mandated that the defendant pay compensation to the plaintiff for the physical and psychological injuries suffered, along with associated costs. This decision underscores the employer's responsibility to protect sub-contractors from foreseeable risks, including intentional harm by third parties, and highlights the importance of addressing employee complaints to mitigate such risks.

Orders