Lines v Workfocus Australia Pty Ltd - [2009] WADC 203

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: LINES -v- WORKFOCUS AUSTRALIA PTY LTD [2009] WADC 203

CORAM: DAVIS DCJ

HEARD: 7-11 SEPTEMBER 2009

DELIVERED : 23 DECEMBER 2009

FILE NO/S: CIV 1272 of 2007

BETWEEN: STEVEN PETER LINES
Plaintiff
AND
WORKFOCUS AUSTRALIA PTY LTD
Defendant

Catchwords:

Negligence - Personal injury - Liability - Duty of care - Causation - Contributory negligence - Provisional assessment of damages

Legislation:

Civil Liability Act 2002 s 5B, s 5K, s 5Z
Workers' Compensation and Injury Management Act 1981

Result:

Plaintiff's action dismissed
Provisional assessment of damages

Representation:

Counsel:

Plaintiff: Mr L Gandini
Defendant: Mr P Mendelow

Solicitors:

Plaintiff: Chapmans
Defendant: Jarman McKenna

Case(s) referred to in judgment(s):

Amaca Pty Ltd v Hannell (2007) 34 WAR 109
Bell Group Ltd (in liq) v Westpac Banking Corp (No 9) (2008) 225 FLR 1
City of Stirling v Tremeer (2006) 32 WAR 155
Czatyrko v Edith Cowen University (2005) 214 ALR 349
EMS Holdings Pty Ltd v International Shipyards Pty Ltd, unreported; FCt SCt of WA; Library No 980655; 12 November 1998
Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540
Graham v Baker (1961) 106 CLR 340
Grainger v Williams [2009] WASCA 60
Hi-tech Demolition Co Pty Ltd v Mainline Demolitions [2000] WASCA 342
Insurance Commission of Western Australia v Weatherall [2007] WASCA 264
Jongen v CSR Ltd (1992) Aust Torts Reports 81‑192
Kerr v Minister for Health [2009] WASCA 32
Kondis v State Transport Authority (1984) 154 CLR 672
Kschammer v RW Piper & Sons Pty Ltd & Ors [2003] WASCA 298
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
Medlin v State Government Insurance Commission (1995) 182 CLR 1
Nguyen v Cosmopolitan Homes [2008] NSWSCA 246
Payne v Parker (1976) 1 NSWLR 191
Pennington v Norris (1956) 96 CLR 10
Pollock v Wellington (1996) 15 WAR 1
Pownall v Conlan Management Pty Ltd (1995) 12 WAR 370
Purkess v Crittenden (1965) 114 CLR 164
Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330
Ross v Profile Packaging Pty Limited & Anor [2008] WADC 8
Ruddock v Taylor (2003) NSWLR 269
see Ross v Profile Packaging Pty Limited & Anor [2008] WADC 8
Shorey v PT Ltd (2003) 77 ALJR 1104; (2003) 197 ALR 410
Sungravure Pty Ltd v Meani (1964) 110 CLR 24

DAVIS DCJ: In May 2002 Mr Lines, who was employed as a senior plant operator at Commercial Bulk Handling ("CBH"), suffered a disc protrusion in his back after he fell down some stairs at his home. As a result of this 2002 back injury, Mr Lines was off work for a total of approximately 18 months. Mr Lines had been back at work at CBH for a little over a year when, on 8 January 2005, he fell onto his left buttock when he was getting out of a truck and injured his back again. After the 2005 back injury, Mr Lines was unable to work for several months, but he received workers' compensation payments. In about June 2005 Mr Lines commenced a graduated return to work program at CBH, pursuant to workers' compensation requirements. On 4 January 2006, while Mr Lines was on this return to work program, he re‑injured his back.
Mr Lines claimed that the 2006 back injury occurred when, as part of his return to work program, he was working on night shift performing what is known as hygiene control duties. Mr Lines claimed that he re‑injured his back because he was required to undertake shovelling as part of those hygiene control duties.
Mr Lines did not sue CBH for damages as a result of the 2006 back injury. Mr Lines sued the defendant, Workfocus Australia Pty Ltd, which carries on business as a vocational rehabilitation provider and had devised and arranged Mr Lines' return to work program. He claimed that Workfocus had "forced" him to undertake both sweeping and shovelling duties when he was unable to do so and that the 2006 back injury was caused by Workfocus' negligence.
Workfocus denied that it had forced Mr Lines to participate in duties which he was unable to do and said that the return to work program had been approved by Mr Lines' general practitioner.
At issue in this matter are both liability and quantum.

Liability

The issues

It was pleaded in the statement of claim that because Workfocus was providing vocational rehabilitation services it owed Mr Lines "a duty of care". The content or scope of the duty of care owed by Workfocus to Mr Lines was not pleaded, despite the fact that it is fundamental to a claim for damages for negligence that the plaintiff establish not only the existence of a duty of care but also the nature and extent of that duty: Roads & Traffic Authority of NSW v Dederer (2007) 234 CLR 330 at [43] and [44]; Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 at [192].
Mr Lines claimed that between late December 2005 and 4 January 2006, Workfocus had "forced" him "to participate in vocational rehabilitation duties" which he was unable to do. Mr Lines alleged that his 2006 back injury was caused by Workfocus' negligence in failing to:
1.Establish a safe workplace in which to perform the graduated return to work program;
2.Provide him with any warning about the workplace to prevent him from suffering further injury;
3.Provide him with any or adequate supervision;
4.Ensure that he was warned of the hazard posed by the graduated return to work program;
5.Heed his concerns that the duties suggested by Workfocus were likely to cause him further injury. In further and better particulars it was alleged that Mr Lines had advised his concerns to Claire Bean of Workfocus and CBH's allocation foreman at the time (whose name Mr Lines could not recall). Mr Lines believed he had advised his concerns a few days prior to the 2006 back injury or a day before. At trial Mr Lines was adamant in his evidence that he had discussed this with Claire Bean at a meeting with her at CBH's Kwinana premises on 2 January 2006.
The High Court has warned against formulating the duty of care in terms of its breach. In Graham Barclay Oysters Pty Ltd v Ryan (supra) Gummow and Haynne JJ said at [192]:
"A duty of care that is formulated retrospectively as an obligation purely to avoid the particular act or omission said to have caused loss, or to avert the particular harm that in fact eventuated, is of its nature likely to obscure the proper inquiry as to breach. That inquiry involves identifying, with some precision, what a reasonable person in the position of the defendant would do by way of response to the reasonably foreseeable risk. As Isaacs A-CJ observed in 1924, "[n]o conclusion of negligence can be arrived at until, first, the mind conceives affirmatively what should have been done."
I had a discussion with both counsel about the scope of the duty of care owed by Workfocus. As formulated after those discussions, the duty of a vocational rehabilitation provider to an injured worker like Mr Lines is to exercise reasonable care and skill in the provision of the vocational rehabilitation services to that worker.
Before I consider whether there has been a breach of duty by Workfocus, there are some preliminary factual issues which must be considered, arising from both the matters which were pleaded and the way the evidence was given at trial. These issues are:
1.What is the role of a vocational rehabilitation provider?
2.Before the 2005 back injury, had Mr Lines fully recovered from his 2002 back injury and was he, at that time, performing full duties at CBH?
3.What was involved in the graduated return to work program for Mr Lines as devised by Workfocus?
4.During the period between late December 2005 and early January 2006 did Workfocus "force" Mr Lines to undertake anything which he was unable to do?
5.How did Mr Lines injure his back on 4 January 2006?
I need to also bear in mind the provisions of the Civil Liability Act2002 (WA). This was another matter not pleaded, although I raised with the parties the application of this Act and invited submissions from them. I have received no submissions and accordingly proceed on the basis that the Civil Liability Act applies. The Civil Liability Act commenced on 1 January 2003. Section 5A of the Act provides that Pt 1A "applies to any claim for damages for harm caused by the fault of a person". Harm is defined to include personal injury. Some of the Civil Liability Act provisions do not apply to certain specified classes of damages, as set out in sections 3A and 4A. None of the exclusions in s 3A and s 4A apply to this case. The Civil Liability Act contains statutory formulations for determining breach of the duty of care, causation and contributory negligence.

What is the role of a vocational rehabilitation provider?

There are provisions relating to return to work programs and vocational rehabilitation providers contained in the Workers' Compensation and Injury Management Act 1981 WA ("the Workers' Compensation Act"). As the Workers' Compensation Act stood in 2005 (between 5 August and 13 November 2005), the purposes of the Act, in s 3, included:
"(b)to promote the rehabilitation of those workers with a view to restoring them to the fullest capacity for gainful employment of which they are capable;"
Section 157 of the Workers' Compensation Act provided that a worker who was incapacitated could be required to undergo vocational rehabilitation. Section 72(1)(b) provided that a worker's entitlement to weekly payments of compensation could, in certain circumstances, be suspended if during any period that a worker was required to undergo rehabilitation, he refused to do so. These provisions bound the worker, the employer of the worker and the workers' compensation insurer of the employer.
By an amendment introduced in December 2004 by the Workers’ Compensation Reform Act 2004 (No 42 of 2004), but which did not come into operation until its proclamation on 14 November 2005, the purposes of the Act were amended to add:
"(ba)to make provision for specialised retraining programs for certain injured workers"
Also introduced by the Workers’ Compensation Reform Act 2004 were expanded provisions dealing with return to work programs including, as set out in s 72B, the suspension or cessation of workers' compensation payments in certain circumstances if a worker refused or failed to participate in a return to work program. These provisions continued to bind the worker, the employer of the worker and the workers' compensation insurer of the employer.
It was, therefore, at the time of both Mr Lines' 2005 back injury and the 2006 back injury, a purpose of the Workers' Compensation Act to promote the rehabilitation of workers. The Act provided that a worker could be ordered to undergo rehabilitation and might have his workers' compensation suspended if he did not do so.
The evidence from Dr Bowles, an experienced occupational physician who specialises in injury management and rehabilitation, was that injured workers were recommended to return to work and implement activities. Ms Claire Bean, the occupational therapist who was at the relevant time employed by Workfocus and devised Mr Lines' return to work program, also referred to research which indicated that workers returning to work earlier rather than later achieve better outcomes.
Ms Bean gave evidence that developing a program to assist workers to return to work involves working with medical professionals, allied health professionals, the injured workers, their employers and insurance companies. A return to work program is based on consultation with the employer, the worker and medical advice.
The referral to Workfocus in this case came from the workers' compensation insurer for CBH, Zurich Australian Insurance Limited ("Zurich"). The referral was a verbal one which officers of Workfocus then discussed with both CBH and Mr Lines. A facsimile was also sent to Mr Lines' general practitioner, advising that Mr Lines had been referred to Workfocus for the completion of a rehabilitation assessment. The facsimile explained that the injury management process implemented by WorkCover (pursuant to the Workers' Compensation Act), required the approval of all parties i.e. doctor, employer and worker, prior to the initiation of a referral for a rehabilitation assessment.
Ms Bean gave evidence that a return to work program is a guide as to what the worker's doctor believes is going to be physically appropriate, and what the worker thinks he will be able to manage. If the worker does not think he is going to be able to manage the program, the likelihood of success is low. So in terms of facilitating a successful return to work, a rehabilitation provider needs to make sure that the worker does not have any concerns, or is going to be successful in his initial attempt.
Before developing a return to work program, Ms Bean said it was standard to first have discussions with the worker's general practitioner about the worker's injury, the medical diagnosis, the prognosis, any physical restrictions on the worker and any recommendations which that doctor had to assist the worker to return to work. The seeking of medical advice was necessary because a return to work program was always based on the progress medical certificates. So in that respect, there was constant communication with the doctor.
Also standard in terms of workers returning to work was communication with the worker. Ms Bean explained in her evidence that she took any concern expressed by a worker about the ability to manage a task very seriously. She said that:
"In terms of an injured worker returning to work, it's - it has to be safe. So one of the key things that we try to communicate to workers is that if they do have an increase in symptoms, that they let their supervisor know, stop what they're doing immediately, and also notify us so that we can amend their return to work program and follow up with the GP if necessary. So it's basically about making sure that the worker doesn't injure themselves further, and that we're aware of how they're progressing."
In relation to the return to work program for Mr Lines, Workfocus first sought the approval of Mr Lines' general practitioner to proceed with his initial assessment, and written approval was obtained. Workfocus' liaison officer then wrote to Mr Lines, CBH, Mr Lines' general practitioner and CBH's insurer, Zurich, to advise that Workfocus had been appointed and planned an initial assessment of Mr Lines on Monday 21 February 2005 at Workfocus' office in Subiaco. Workfocus then allocated the file to Ms Bean. The initial assessment in fact took place on 4 March 2005. Following this initial assessment Workfocus made contact with the medical practitioners who were at the time treating Mr Lines. On 28 April 2005 a case conference took place between Ms Bean, Mr Lines, Mr Lines' then general practitioner, Dr Khoo, and Linda Rawle of CBH, at Dr Khoo's surgery. At this case conference, it was agreed by everyone present, including Mr Lines, that he would commence a graduated return to work program on 7 May 2005. Dr Khoo recommended that Mr Lines avoid lifting weights greater than 10 kilograms and alternate his posture as required. Only after these steps were taken did Workfocus draft a return to work program.
Ms Bean had very little independent recollection of the telephone calls and other meetings that she had with Mr Lines and other interested parties (namely Mr Lines' medical practitioners, CBH and Zurich) during the preparation and implementation of the return to work program for Mr Lines, however, as was her inevitable and usual practice, she took detailed file notes of each conversation or meeting. Those file notes were, she confirmed, taken contemporaneously in the sense they were either taken during the course of the meeting or phone call, or immediately after the meeting or phone call had finished. Those notes were produced at trial.
In light of the evidence I find that the role of a vocational rehabilitation provider in assisting an injured worker to return to work is to:
1.undertake an initial assessment of the worker's physical capabilities;
2.consult with the worker's treating doctor or doctors about the worker's injury, the medical diagnosis, the prognosis, any restrictions on the workers' physical abilities and any recommendations which that doctor has to assist the worker to return to work;
3.liaise and consult with the worker, the worker's employer and the worker's treating doctor as to the type of work the worker can undertake and the hours of work;
4.devise an appropriate return to work program based on that consultation with the worker, the employer and the worker's doctor;
5.obtain the approval of the worker's doctor to the return to work program;
6.advise the worker to notify his or her supervisor and the rehabilitation provider of any increase in symptoms, while on the return to work program.
7.review and amend the return to work program from time to time based on the progress of the worker and after consultation with the worker, the worker's employer and the worker's doctor;
8.obtain the approval of the worker's doctor to any amendment of the return to work program.
Liaison with the worker's employer will always also involve liaison with the insurance company for the employer, by reason of the provisions of the Workers' Compensation Act.

Had Mr Lines fully recovered from his 2002 back injury before the first work related accident on 8 January 2005?

After the 2002 back injury, in October 2003, Mr Lines was referred to Workfocus who from time to time provided services to CBH other than vocational rehabilitation. The referral came in a memorandum from Linda Rawle of CBH dated 2 October 2003. In that referral Ms Rawle noted that Mr Lines had been absent from work due to a non‑work related injury for a significant period of time. It was felt to be appropriate for Mr Lines to undergo a PWPE (Physical Work Performance Evaluation) to determine his capacity to return to his normal role.
The PWPE carried out by Workfocus was produced at trial. The report said that Mr Lines was capable of a medium level of work for an eight hour day. Medium work was defined as exerting 9 kilograms to 23 kilograms of force occasionally, or 4.5 kilograms to 11 kilograms of force frequently, or up to 4.5 kilograms of force constantly. The report set out a number of limitations which Mr Lines had reported. These were lower back pain, left knee pain and left knee instability. According to the job description which Mr Lines provided to Workfocus at that time, his abilities did not match the job requirements, particularly the requirement to constantly sit. The report stated that provided that Mr Lines had the opportunity to alter his working posture and take stretch breaks, he would be able to perform full pre‑injury duties and hours as a plant operator.
Mr Lines was seen by his general practitioner, at that stage Dr Khoo, on 4 November 2003. Dr Khoo certified Mr Lines as fit to work from 13 November 2003 but with a restriction on lifting more than 5 kilograms.
Mr Lines claimed that immediately before the 2005 back injury he was performing full work duties, without restriction or any physical difficulty. This, however, conflicts with other evidence.
First, after the 2005 back injury, Ms Bean and another occupational therapist employed by Workfocus, Melissa Iozzelli, undertook the initial assessment of Mr Lines at Workfocus' office in Subiaco on 4 March 2005. The contemporaneous notes which Ms Bean and Ms Iozzelli took in the course of this assessment were admitted into evidence without objection. The main notes taken were by Ms Iozzelli and she recorded the following:
"Back at work 16 to 18 months since previous injury. Duties:
- rail grid – opening and shutting wagons
- control room, data entry and analysis
- sampling (rail and ship) approximately 10 to 20 kilograms not lifting
- hygiene control avoids shovelling
- approximately 7 people on shift – control room or sampling
- sitting tolerance varies, better chairs"
[italics my emphasis]

Secondly, Ms Bean confirmed in her evidence that Mr Lines told her that prior to the 2005 back injury his sampling duties were restricted in terms of his lifting capacity, that he avoided travelling as this resulted in an aggravation of his lower back pain and that he avoided shovelling.
Thirdly, on 5 April 2005 Ms Bean prepared an initial assessment report for CBH's workers' compensation insurer, Zurich, with copies also sent to CBH, Mr Lines and his general practitioner. In this report Ms Bean set out some background, based on the information which Mr Lines had provided to her at the time of the initial assessment, including that:
1.Mr Lines had advised he had previously injured his lower back in 2002 when he fell down some stairs at his house. Following that:
"…he achieved a return to work with CBH as a full‑time plant operator however avoided shovelling and lifting objects weighing greater than 10 to 20 kilograms".
2.That in the worker's perspective:
"Mr Lines advised he was hopeful of achieving a full return to work with CBH however was unsure as to his prognosis and treatment requirements. Mr Lines advised he wished to remain in the employ of CBH. He reported he performed mainly control or sampling duties whilst on shift, given his training in these areas. Mr Lines advised his sampling duties were restricted in terms of his lifting capacity, however, managed the analysis and computer based aspects of these tasks. Mr Lines advised he avoided shovelling as this resulted in aggravation of his lower back pain."
[italics my emphasis]
Mr Lines was provided with a copy of the initial assessment report and took no issue with these matters as recorded at that time. He gave evidence that he went through every document that he was given.
Fourthly, in November 2005, as part of his graduated return to work program, Mr Lines was recommended to exercise to assist in his core stability. An initial exercise assessment was carried out on 28 November 2005 by Ms Samantha Parker, an exercise physiologist employed by Workfocus and her report dated 6 December 2005 was sent to all parties (including Mr Lines and his general practitioner, Dr Thng). In this report Ms Parker advised:
"He had a 10 kilogram lifting restriction and avoidance of shovelling duties at work from a previous injury".
Having regard to all of this evidence, particularly the evidence about what Mr Lines advised Ms Bean and Ms Iozzelli, I do not accept Mr Lines' evidence that he had, by January 2005, returned to full duties as a plant operator. I find that as at January 2005 Mr Lines had not yet achieved full duties as a plant operator and was still experiencing problems from the 2002 back injury. I find that at all times following his return to work from the 2002 back injury, he did not lift weights greater than 10 kilograms and he avoided shovelling.
Overall, having regard to his evidence and the manner in which he gave it, I formed the view that Mr Lines' account on significant issues was unreliable and reflected, at least in part, a desire to advance his case against Workfocus and minimise the effect of his previous back injuries.
This is illustrated by the history which Mr Lines gave to those medical practitioners to whom he was referred for review. Mr Lines was first referred for review by Dr Andrew Marsden, an occupational physician, who was originally a defendant in this action. (Mr Lines' claim against Dr Marsden was settled just before the start of the trial, on the basis of a dismissal of the claim with no order as to costs.) In a medical report from Dr Marsden dated 21 December 2005 he recorded, as reported to him by Mr Lines, that "he has had no previous lower back problems". Mr Lines denied having told Mr Marsden this and said that this was Mr Marsden's "undertaking" (sic) of what Mr Lines had told him, but Mr Lines agreed that he had told Mr Marsden that he was generally fit and well.
Mr Lines was also referred for review by Dr Bowles, the occupational physician who was called to give evidence on behalf of Workfocus. In a report dated 27 February 2009, which Dr Bowles confirmed at trial, Dr Bowles reported that when he saw Mr Lines he denied any previous back injuries before the 2005 back injury. Mr Lines admitted in his examination‑in‑chief that he had not told Dr Bowles about the 2002 back injury. The reason he gave for this was that he claimed that Dr Bowles had not asked him about it. Dr Bowles explained, and I accept his evidence, that it is always part of taking a history to ask the person about any previous problems in the area in question and he always asks people whether they have had back problems in the past. Dr Bowles said that in answer to a question to Mr Lines as to whether he had any previous back problems, Mr Lines gave a negative response. I do not accept Mr Lines' evidence to the contrary.
There were other aspects of Mr Lines' evidence which have caused me to conclude that his evidence was unreliable and reflected a desire to advance his case against Workfocus. The following are some examples.
Mr Lines claimed that he was told on a couple of occasions by Ms Bean that he was falling behind in his return to work program and the program had to be done. He was, however, unable to be more specific as to exactly when Ms Bean told him this. When he was pressed in examination‑in‑chief to provide some further details, all he could say was that Ms Bean's manner sometimes was "fine" but other times was "not so fine". Again when he was pressed to give more details about what it was about Ms Bean which was "not so fine" he said that this was when there were some messages that she had left at his home which had not been passed onto him. These were messages left at an early stage, before Mr Lines actually commenced the return to work program. That was the only occasion when she had become, as Mr Lines described it, "snarly".
Mr Lines said he could recall one meeting which Ms Bean had attended with his general practitioner, who was then Dr Thng, Jeremy O'Neill from CBH and Mr Lines' partner. Mr Lines said this meeting took place at the Woodbridge Medical Centre. He described Ms Bean as being "forceful" in wanting Mr Lines to stay with the return to work program but he was unable to give any details of exactly what she said. He then had to admit that Ms Bean did not say anything to him that was adverse.
Mr Lines also said that Workfocus had written to him about the timing of his return to work program and told him in those letters that he was behind in his graduated return to work and was supposed to be doing other duties. Those letters, if they existed, were neither identified nor produced at trial. Mr Lines' general practitioner, Dr Thng, gave evidence that the dates in the return to work program were negotiable, would be determined based on the patient's symptoms and were not mandatory or a protocol that had to be followed. They were a suggestion, giving the patient the impression he or she was going to get better. Dr Thng stated that this was often a good way to frame a return to work program, so that patients did not feel limited by what they could potentially achieve at the end of it.
Mr Lines also gave evidence that on 4 January 2006 after he felt the pain in his back after shovelling, he immediately reported this to a CBH supervisor, (whom he later identified as Robert Henderson) who "filled out the appropriate paperwork". The only paperwork which was produced at trial was a workers' compensation claim form for the 2005 back injury (part of Exhibit 1). There was no similar paperwork produced for the 2006 back injury. Workfocus, however, tendered without objection, a CBH hazard/incident report book. This book set out reporting procedures for all incidents, even minor incidents with no injury or a low risk factor. There was no incident report completed in relation to Mr Lines' 2006 back injury, although other similar incidents were recorded in that hazard/incident report book at around that time. I found Mr Lines' explanation as to why his incident was not recorded in this report book to be implausible.
Having regard to these and other aspects of Mr Lines' evidence which I discuss when addressing the other issues I have identified, where his evidence is inconsistent with contemporaneous records or other evidence, I prefer those records and other evidence.

What was involved in the graduated return to work program for Mr Lines as devised by Workfocus?

Ms Bean's first draft of the return to work program for Mr Lines had a starting date of 7 May 2005, subject to medical approval. Ms Bean sent copies to all interested parties, including Mr Lines' general practitioner. The return to work program recorded Mr Lines starting six hourly shifts on dayshift and "sliding" shifts as per the CBH roster. A "sliding" shift was a combination of an afternoon and evening shift. The duties he was to perform were control room operation and relief sampling – data entry/computer work. Under the heading "Recommendations" it was recorded that Mr Lines was to adhere to the following:
"•Avoid prolonged sitting and standing – alternate posture at least every 30 minutes
•Utilise a foot stool while seated and adjust chair as demonstrated during ergonomic review with Ms Bean
•Notify shift supervisor …. and Ms Bean of any increase in lower back symptoms".
The return to work program also recorded that if Mr Lines was unable to attend on any of the days, he was to advise his supervisor and Ms Bean and attend Dr Khoo for a medical certificate.
Mr Lines did not commence the return to work program on the scheduled date of 7 May 2005. He was further reviewed by both Dr Khoo and the pain management specialist, Dr Gee, from whom he was receiving some injections, and his starting date was postponed until June 2006.
Ms Bean revised the return to work program, once again subject to medical approval, with a starting date of 4 June, and then revised it again with a starting date of 18 June 2005. This latter document entitled "Stage One – Return to Work Program" set out Mr Lines' proposed hours and work duties up to the week commencing 3 September 2009. The hours were confined to day shift, starting with six hours per day and gradually increasing to the standard twelve hour shift. The work duties were confined to control room operation, laboratory duties and restricted sampling, with avoidance of stair climbing and lifting buckets. Under the heading "Recommendations" it was recorded that Mr Lines was to adhere to the following:
•Take a one to two minute stretch break for every 30 minutes of sustained seated work
•Utilise a foot stool while seated and adjust chair as demonstrated during ergonomic review with Ms Bean
•Participate in his exercise program as prescribed by (physiotherapist)
•Notify shift supervisor and Ms Bean of any increase in lower back symptoms.
The Stage One Return to Work Program also recorded that if Mr Lines was unable to attend on any day he was to advise the administrator, shift supervisor and Ms Bean and attend his general practitioner, who at this stage was Dr Thng (taking over from other doctors in the same practice), for a medical certificate. It was also recorded in this document that Workfocus planned to monitor Mr Lines' progress fortnightly and liaise with all parties regarding approval for Mr Lines to commence Stage Two.
There was a specific section on the second page of this document which required the approval of Dr Thng. Dr Thng confirmed his signature on this return to work program, dated 20 July 2005. Dr Thng confirmed that there was regular contact between him and Ms Bean about the return to work program. Dr Thng also confirmed that he also expected Mr Lines to consult him if Mr Lines experienced any increase in lower back symptoms.
Mr Lines also acknowledged in cross‑examination that he had been told, and he knew, at all times up to January 2006, that if he could not manage with the return to work program, it could be amended to ensure that he was able to cope.
Ms Bean prepared and sent a report dated 8 August 2005 to Zurich, with copies to all other parties – CBH, Mr Lines and his general practitioner – regarding Mr Lines' progress on the return to work program. This reported that although Mr Lines was currently completing Stage One, he was experiencing ongoing lower back symptoms and he was still undergoing treatment by Dr Gee. Ms Bean advised in this report that Mr Lines' ongoing symptoms "may hinder his ability to progress with his return to work program". It was anticipated that Stage Two would commence on 10 September 2005, pending medical approval.
Ms Bean prepared an amended return to work program which she sent to Dr Thng on 4 September and which Dr Thng signed and approved on 6 September 2005. This was an amended Stage One program, extending Stage One for another week, with Stage Two anticipated to commence 17 September 2005 and Stage Three to commence 15 October 2005. As for the previous return to work programs, Mr Lines was advised to adhere to a number of recommendations, including to notify his shift supervisor and Ms Bean both of any increase in lower back symptoms and if he was unable to attend work on any day, and in the latter case to also attend Dr Thng for a medical certificate.
On 30 September 2005 Ms Bean reported again to Zurich, with copies to all other parties – CBH, Mr Lines and his general practitioner – regarding Mr Lines' progress on the return to work program. In this report it was recorded that Mr Lines continued to experience ongoing lower back symptoms and was being treated by Dr Gee, the pain management specialist. The commencement of Stage Two was put back to commence on 14 October 2005.
The commencement of Stage Two was later amended, by another amended staged return to work program prepared by Ms Bean, to commence on 3 November 2005, with Stage Three to commence on 11 December 2005. That amended return to work program of 3 November 2005 was sent by letter to Mr Lines, also on 3 November 2005, and also sent for approval by Dr Thng, who signed it and sent his signed approval back to Workfocus by facsimile on 4 November 2005. Once again, this amended document had the usual recommendations for Mr Lines to adhere to:
"•Take a one to two minute stretch break for every 30 minutes of sustained seated work
•Utilise a foot stool while seated and adjust chair as demonstrated during ergonomic review with Ms Bean
•Participate in his exercise program as prescribed by Ms Parker (exercise physiologist)
•Notify shift supervisor, Mr Jeffries (Manager) and Ms Bean of any increase in lower back symptoms.
IF UNABLE TO ATTEND ON ANY OF THE ABOVE DAYS PLEASE ADVISE SUPERVISOR & MS BEAN, WORKFOCUS AUSTRALIA ON 9388 7788 AND ATTEND DR THNG FOR A MEDICAL CERTIFICATE".
Stage Two of the return to work program dated 4 September 2005 set out Mr Lines' duties and these included, for Stage Two, duties in "hygiene control", initially on the 7^th floor for the first two blocks of day shift, and then, on the third block (said to be "as per roster"), "hygiene control – all areas". In the amended return to work program of 3 November 2005, the hours were stated to be "pre-injury hours average 42.5 hours per week as per CBH roster, Kwinana". The Stage Two requirements were shifts "as per roster" and Mr Lines' duties included hygiene control on the 7^th, 8^th and 9^th floors, as well as driving the dust truck. Stage Three, which was scheduled to commence on 27 November 2005, included all the Stage Two duties plus blowing down underneath rail C1-4 and 5-8 (with a maximum, for that duty, of two shifts per panel and non-consecutive days).
Hygiene control involved cleaning up grain spills within the plant using various hand held equipment including air‑lances, brooms and shovels. Ms Bean was aware of these duties, having undertaken a job analysis for CBH in October 2004 to document the duties of a plant operator and the associated physical demands. Ms Bean produced a Job Analysis Report dated 23 December 2004 which recorded:
"Hygiene Control – various hand held equipment used to perform hygiene control including air‑lances, brooms and shovels.
- involves cleaning up grain spills within plant
- requires shovelling from ground level to approximately 1.2 metres into a kibble (mobile bin)
-mainly performed in silo that is, the sill box at work hours – hygiene may be performed continuously over a period of shifts or on an intermittent basis
-involves cleaning away dust using an air‑lance and removing inspection covers to blow down all machinery and train work. Requires fine manipulation to remove covers with bilateral lifting up to 15 kilograms and occasional work squatting/crouching
-hygiene control can require ladder climbing and occasional use of harnesses if working at height
-hygiene control is carried out using the same process at the wharf where ship unloading/loading occurs
-ship loaders require covers to be removed which can be difficult – two plant operators generally work independently to complete wharf hygiene control however, can work together to minimise lifting requirements."
A copy of the Job Analysis Report had been provided to Mr Lines' general practitioner, enclosed with Ms Bean's initial assessment report dated 5 April 2005.
Although the 3 November 2005 amended return to work program referred to hygiene control, the evidence was that when Mr Lines undertook plant operator duties involving "hygiene control" he did so without being required to perform shovelling. Ms Bean gave evidence that Mr Lines was not expected to do shovelling when undertaking hygiene control duties. She explained that Mr Lines had told her from the outset, when she first met with him, that he did not undertake shovelling duties prior to January 2005 because it aggravated his back, and her understanding was that he did not perform shovelling duties. Mr Lines undertook hygiene control work on a number of occasions before 4 January 2006 as recorded in Ms Bean's notes of discussions she had with him on 14 October 2005, 31 October 2005 and 24 November 2005, where she noted he had been undertaking blowing down and sweeping.
On 28 November 2005 Mr Lines was reviewed by the Workfocus exercise physiologist, Ms Samantha Parker, who reported on Mr Lines' exercise assessment on 6 December 2005. Like all other Workfocus reports, although this was addressed to Zurich, copies were provided to CBH, Mr Lines and his general practitioner. In this report Ms Parker recorded that Mr Lines had reported to her ongoing symptoms to the left side of his lower back, extending into his left leg on occasions and that activities which required bending (trunk flexion) and stair climbing (required for work) increased his symptom levels. From this it is apparent that Mr Lines was conscious of any work related activity which increased his symptoms. Mr Lines' 10 kilogram lifting restriction and avoidance of shovelling duties at work from the previous 2002 back injury were recorded in this report. Ms Parker made recommendations for exercises to improve Mr Lines' core stability.
Dr Thng gave evidence that he expressly advised Mr Lines not to do anything involving trunk flexion and twisting, which included shovelling, on at least two occasions, from Dr Thng's memory. He confirmed this in two reports to Mr Lines' solicitors dated 28 August 2009. In the first report when addressing the return to work program dated 3 November 2005 which he signed, Dr Thng stated:
"In fact, it has been advised and subsequently confirmed by Stephen that the work he should avoid would be repetitive bending and lifting, and especially doing so when carrying a weight.
Implicit in that would be that there would be no shovelling work involved in the return to work program".

In the second report at 28 August 2009 Dr Thng stated that:
"He was never expected to perform any bending and twisting work that involved repetition and loading".
Having regard to all of this evidence I find that:
1.Workfocus regularly consulted with Mr Lines' general practitioner regarding the return to work program;
2.Workfocus drafted the return to work program based on consultation with Mr Lines, his general practitioner and CBH and amended the return to work program after taking into account Mr Lines' progress, including what Mr Lines reported about his symptoms;
3.The return to work program, both as initially drafted and as amended from time to time, was at all times approved by Mr Lines' general practitioner;
4. Workfocus advised Mr Lines, and he knew, that if he was unable to manage the program it could be amended to ensure that he was able to cope. In fact, on more than one occasion when he reported problems, the return to work program was amended;
5.Mr Lines knew that he was to notify his supervisor at CBH and Ms Bean if he had any increase in his lower back symptoms; and
4.Mr Lines was not required to perform shovelling, nor lift objects in excess of 10 kilograms. In fact Mr Lines had been expressly advised by Dr Thng not to undertake any activity which involved repetitive bending and lifting, especially doing so when carrying a weight.
Mr Lines himself acknowledged and agreed in cross‑examination that as part of the return to work program he was to avoid doing shovelling duties and he had a 10 kilogram lifting restriction. Mr Lines' case is, however, that the shovelling avoidance changed as a result of the meeting he says he had with Ms Bean on 2 January 2006.

During the period between late December 2005 and early January 2006 did Workfocus "force" Mr Lines to undertake anything which he was unable to do?

As pleaded, the relevant time during which it was alleged that Workfocus forced Mr Lines to undertake duties which he said he was unable to do was December 2005 or January 2006. At trial, Mr Lines' case focussed on a conversation which he was adamant he had with Ms Bean at a face to face meeting at CBH's Kwinana premises at lunchtime on 2 January 2006 and an apparent requirement, from that conversation, that he was to undertake shovelling duties.
Mr Lines said the meeting took place in a conference room at CBH and only he and Ms Bean were present. He said that they discussed Mr Lines commencing Stage 3 of the return to work program. He had up to that time been doing Stage 2. He said that at this meeting Ms Bean had told him that he was behind in his return to work program, something which he claimed had been said to him before (although he could not say when or what the discussions were).
Mr Lines' evidence was that at this meeting on 2 January 2006 Ms Bean told him that he was to work on the 8^th and 9^th floor on night shift, on hygiene control duties. The significance of that work was that, as Mr Lines claimed, it involved shovelling work. Mr Lines explained in his examination in chief that "There's four conveyors that come in from the rail with grain on them. They drop onto the seventh floor into the - into the silos. The eighth and ninth floor is - you've got to - the job up there is sweeping, shovelling and blowing down. That's all it entails". He said that he told Ms Bean "That I didn't think I'd be able to do the job." He said her response to that was to the effect that "It's part of the return to work program, and that's your job for the night shifts".
Mr Lines gave evidence that after reporting to his supervisor for night shift on 3 January 2006 he was allocated work on the eighth and ninth floor. He made no objection to this.
It was accepted at trial that 2 January 2006, the day when Mr Lines said his meeting with Ms Bean took place, was a public holiday, following New Years' Day. It was not a day when Ms Bean normally worked. Ms Bean, who kept notes of everything she did on the Workfocus file, including all meetings and telephone discussions which she had with Mr Lines, did not have any note of a meeting held with Mr Lines on 2 January 2006, nor did she have a note of having met with him the next day, 3 January 2006. In addition, she gave evidence that a meeting which took place at CBH's premises would have involved some time, since it would mean travelling from Workfocus' premises in Subiaco to Kwinana, and return. Her time for that travelling and the meeting would be billed to Zurich. The itemised bills sent by Workfocus to Zurich did not include any charge for either travelling or a meeting on 2 January 2006.
According to the Workfocus records and the notes taken by Ms Bean, the last occasion before 4 January 2006 when she had a discussion with Mr Lines about the return to work program was on 24 November 2005. Ms Bean's notes record Mr Lines telling her that he had ongoing back pain while working in the control room. In relation to duties, Ms Bean recorded, among other things, that Mr Lines had started last week driving the dust truck and had been working on the 8^th floor, blowing down, and was "ok with this". On the 7^th floor Mr Lines was using pipes to support the air hose. He was using a small broom to sweep, but not doing any shovelling. Ms Bean's note read in relation to Mr Lines not doing shovelling that "shovel head is large – with grain on heavy. Plastic shovels have gone missing". Ms Bean also recorded that Mr Lines was working also in sampling, but not lifting any ship buckets. She had a discussion with him regarding decreasing sample sizes with ship sampling. She recorded that Mr Lines would be working "day shift this week + then night shift next week" and that "worker to complete seventh, eighth and ninth, pm shift."
From this record, it is apparent that Mr Lines was undertaking hygiene control duties, although with modifications and without shovelling. It is also apparent that Mr Lines was able to determine for himself, and reported to Ms Bean, that shovelling was a problem because of the weight of the shovel head and grain, and he was not undertaking any shovelling or lifting of buckets.
It was about this time when Mr Lines was referred to the exercise physiologist, Ms Samantha Parker. The assessment undertaken by Ms Parker and her report of 6 December 2005 confirms that Mr Lines was conscious of any work related activity which increased his symptoms, including flexion and bending.
The next record from Ms Bean was a file note of 3 January 2006, showing a period of no contact between late November and 3 January 2006. Ms Bean advised in her evidence that she did not know whether she was on leave during that time. The process she followed, however, was that if she had not been in contact for a period of time she would contact the employer to make a time to go out and review the worker and see how he was going. On 3 January 2006 Ms Bean did have a telephone discussion with CBH's Jeremy O'Neill, who updated her with Mr Lines' progress. Ms Bean had no independent recollection of this telephone discussion. Ms Bean's notes of this telephone discussion recorded that:
"- Jeremy adv [worker] slow
- night shift 2 nights – going to do rail flow path cleaning – do 8^th, 9^th floor – do half shift doing this then do control room duties
Sliders:
- doing hygiene on 7^th floor – difficult clean under rail floor path sitting lower, 8^th + 9^th floors conveyors are higher less awkward
…
- can do sampling but not lifting any buckets – doing analysis + computer
- rail sampling set up in different areas, not lifting buckets
- CB adv need to get [worker] doing restricted rail flow path to incorporate use of core stabilizers
- CB adv will complete WSR [work site review] next Wed 11/1/07 @ 8.30am"
[italics my emphasis]
Having regard to all of this evidence and the observations I have already made as to Mr Lines' credibility generally, I find that Mr Lines did not have any meeting with Ms Bean on 2 January 2006. I find that the last discussion between Ms Bean and Mr Lines was on 24 November 2005, that Ms Bean did not work on 2 January 2006 and, upon her return to work on 3 January 2006, she did not speak to Mr Lines but obtained a report on Mr Lines' progress from his employer, CBH. She planned to review Mr Lines on 11 January 2006.
Even if I had accepted Mr Lines' account and found that a meeting had taken place on 2 January 2006, on Mr Lines' own evidence nothing he said or did would have indicated to Ms Bean that he had concerns that the duties he would be undertaking on night shift on 3 to 4 January 2006 were likely to cause him further injury.
Mr Lines had never been required to undertake shovelling before, although he had previously undertaken hygiene control duties. He admitted in cross examination that he knew he did not have to do shovelling "at that stage". He admitted that in his discussions with Ms Bean he never sought any clarification as to whether or not he could use a shovel. He acknowledged that Ms Bean did not say to him that he must go and do shovelling duties and also admitted that he did not say to her "I can't do shovelling" or that he had a concern about doing shovelling.
During his cross examination, however, Mr Lines claimed that the issue with working on hygiene control on the 8^th and 9^th floor on night shift, was that he would be working alone. He claimed it was a "one person job" which required him to blow down, sweep and shovel, saying that "there's one of you on the eighth and ninth floor to clean up on night shift. If it's not clean by the following day, it's your job." He had not mentioned this fact to Ms Bean. His explanation for not raising with her his concern about doing shovelling was that "she knew what the job entailed".
Ms Bean was, of course, aware of the nature of hygiene control duties, as she had prepared the job analysis, however, Mr Lines had not undertaken shovelling before. There is no evidence that Ms Bean was aware of the number of workers which CBH placed on the 8^th and 9^th floor night shift at this time, or that Ms Bean knew that when Mr Lines was working on the 8th and 9^th floors he was expected to undertake shovelling. The evidence of Dr Thng shows that she was in fact unaware that Mr Lines was undertaking shovelling. After Mr Lines reported his injury to Dr Thng, Dr Thng had a telephone conversation with Ms Bean, telling her what Mr Lines had told Dr Thng about doing shovelling work. (Ms Bean's note of that telephone conversation is dated 5 January 2006). Although Dr Thng did not remember the exact words spoken, from the discussion which he had with Ms Bean he understood that she had not required Mr Lines to do that work and she expressed a sense of frustration that Mr Lines was not doing what she had asked him to do. As Dr Thng set out in his first report of 28 August 2009:
"I was informed by Claire that he undertook that task on his own accord and did not follow the protocol set out as per the spirit of the return to work program…I made it clear to Claire that shovelling work was never intended nor advised for in the future. The impression I had from Claire at that point was that she understood that that was in the principle of the return to work program signed off previously".
The claim by Mr Lines that he was working alone on night shift was not something which on the evidence he raised with Ms Bean. It had also not been raised in the pleadings, or in Mr Lines' examination‑in‑chief. His evidence about this first arose when he was cross-examined. I found his evidence about this unsatisfactory in a number of respects.
Mr Lines claimed that hygiene control duties meant that he had to undertake shovelling, but eventually Mr Lines had to admit that he had previously been undertaking hygiene control duties, without shovelling. He sought to explain this by saying that when carrying out hygiene control duties on the 7^th floor, "there was two of us". Mr Lines also claimed that he had never before performed hygiene control duties on the 8^th and 9^th floors and that he had first started working there on the night shift of 3 to 4 January 2006. That is inconsistent with his discussion with Ms Bean on 24 November 2005 when he told her that he had, as at that date, been undertaking hygiene control duties on both the 7^th and 8^th floors. When that discussion was put to Mr Lines in cross examination, and it was suggested he was okay with doing 8^th floor duties and blowing down, his answer was "at that stage, yes" and he then claimed that he could not do 8^th floor duties without shovelling. I found his attempted explanation of this confused and unconvincing. His first explanation was that there was a difference between the 7^th floor and the 8^thand 9^th floors, because on the 7^th floor there were co‑workers, and duties could be shared, while on the 8^th and 9^th floors on night shift, you worked alone. When he was asked to clarify this, his evidence then changed to assert that there were no hygiene control duties on the 7^th floor on night shift, and that on the 8^th and 9^th floors, it did not matter if it was day or night, there was only a single worker. If it was case that the 8^th and 9^th floors hygiene control duties was a "one person job", whether on day or night shift, the evidence is that before 24 November 2005, Mr Lines had undertaken hygiene control duties on the 8^th floor. Based on his revised evidence, he would have done so as a single worker, undertaking a "one person job". He had been able to undertake that work, as at 24 November 2005, without shovelling. The change from that time to 2 January 2006, and the requirement for shovelling which Mr Lines insisted was newly expected of him on 2 January 2006, is thus unexplained. The evidence that Mr Lines gave bears the hallmarks of another attempt to bolster his case against Workfocus.
Having regard to all of the evidence, I find that between November 2005 and 3 January 2006:
1.Mr Lines had undertaken hygiene control duties on the 7^th and 8^th floors.
2.Mr Lines had undertaken those hygiene control duties without shovelling, and knew that he did not have to do shovelling.
3.Mr Lines did not tell Ms Bean that for the night shift of 3 to 4 January 2006 on the 8^th and 9^th floors he would be required to perform shovelling work.
4.Mr Lines did not tell Ms Bean that he could not do shovelling or raise with her any concern about doing shovelling.
5.Mr Lines did not ask Ms Bean whether the night shift of 3 to 4 January 2006 required him to do shovelling.
6.Ms Bean did not at any time tell Mr Lines that he must do shovelling as part of the return to work program.
Mr Lines had never before been reticent about not doing shovelling work or lifting where he knew that aggravated his back pain. In the period immediately before the 2006 back injury, as confirmed by the initial exercise report from Ms Samantha Parker of Workfocus dated 6 December 2005, Mr Lines was conscious of any work related activity which increased his symptoms and did not undertake shovelling or lifting heavy weights. Mr Lines conceded that there were many other duties he could have carried out during his night shift on 3 to 4 January 2006 (which, he did not disagree, was only a half shift) such as cleaning, blowing and sweeping, without shovelling. Mr Lines was made aware from all communications with Workfocus that if he was unable to manage the program this could be amended to ensure he was able to cope. As I have already observed, the return to work program was amended on more than one occasion when he reported ongoing back pain and the need for medical treatment. I consider that if Mr Lines had any concern about working alone on night shift (or on any other shift) on the 8^th and 9^th floors (or any other floor), or undertaking shovelling, it would be reasonable to expect Mr Lines to raise this with Ms Bean. Even on his evidence, he did not do so.
I find in all the circumstances that there was not any "forcing" by Workfocus to make Mr Lines undertake anything which he was unable to do, immediately prior to the night shift of 3 to 4 January 2006, either in December 2005 or January 2006.

How did Mr Lines injure his back on 4 January 2006?

Mr Lines' shift started at 7.00 pm on the night of 3 January 2006. He said that at approximately midnight he was shovelling grain up off the floor. He went to turn around to put it up onto the conveyor belt, when he felt pain in his back again. He said he reported it immediately to his supervisor. He did not continue work but filled out paperwork and saw Dr Thng the next day.
I have already expressed my concerns about Mr Lines' evidence concerning the reporting of this incident and the inconsistency of this evidence with other contemporaneous records. On behalf of Workforce it was submitted that in the circumstances there was a real question as to whether Mr Lines did in fact injure his back at work in the manner in which he described. It was submitted that the injury may have occurred other than by shovelling and may have occurred spontaneously. Reliance was placed on the expert evidence of the occupational physician, Dr Bowles, that a disc protrusion is often a spontaneous event and can come on while performing any activity previously performed many times without a problem. Reference was also made to the fact that Mr Lines maintained that the incident was reported and paperwork completed, when it had not been recorded in CBH's hazard/incident report book.
Despite my concerns about the reliability of many other aspects of Mr Lines' evidence, I am not prepared to find, as I was urged to do by Workfocus, that Mr Lines did not injure his back on 4 January 2006 at work undertaking shovelling. There was no issue taken with Mr Lines' account by either CBH or its insurer, Zurich. Mr Lines also consistently reported to his treating medical practitioners, (Dr Thng and Dr Gee in particular) both immediately after the incident and in the months following, that he had hurt his back when shovelling. I am satisfied on the balance of probabilities that Mr Lines hurt his back while shovelling.

Findings on liability

A duty of care imposes an obligation to exercise reasonable care and is not a duty to prevent all potential harm: Roads and Traffic Authority of NSW v Dederer (supra) at [18] and [43]. In this case the duty of Workfocus was to exercise reasonable care and skill in the provision of the vocational rehabilitation services to Mr Lines. It was not a duty to ensure that Mr Lines would not suffer further injury.
As to whether there was a breach of duty, s 5B of the Civil Liability Act provides:
"5B General principles
(1)A person is not liable for harm caused by that person's fault in failing to take precautions against a risk of harm unless —
(a)the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known);
(b)the risk was not insignificant; and
(c)in the circumstances, a reasonable person in the person's position would have taken those precautions.
(2)In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things) —
(a)the probability that the harm would occur if care were not taken;
(b)the likely seriousness of the harm;
(c)the burden of taking precautions to avoid the risk of harm;
(d)the social utility of the activity that creates the risk of harm."
The risk of Mr Lines suffering another back injury or an aggravation of his 2005 back injury while participating in the return to work program was real and therefore foreseeable. It was a risk about which Workfocus knew or ought have known, based on Ms Bean's evidence (set out at [22] above) that a risk of further injury to a worker was something always taken into account when planning a return to work program. It was not an insignificant risk. The question must be asked – what precautions would a reasonable person in Workfocus' position have taken?

Future loss of superannuation

I calculate future loss of superannuation as follows:
$1,166 – $627 = $539 x 9% = $48.51 x 450 (multiplier) x 70% (Jongen) x 50% = $7,640
Less 10% for contingencies = $6,876.

Special damages

The particulars of damages provided to me by Mr Lines' counsel during the trial claims special damages "TBA" with a note that "the plaintiff is only claiming at this time special damages equal to the amount of any recovery by HIC (Medicare) and/or the workers' compensation insurer, and/or any private health fund".
No figure was agreed for Mr Lines' special damages. No evidence was led of HIC Medicare payments or private health fund payments. There was, however, evidence of the workers' compensation payments (Exhibit 28). From that schedule of payments I have calculated that medical and other expenses paid in respect of services provided after 4 January 2006 totalled $20, 759.25, made up of accounts from:
Woodbridge Medical Centre  $947.25
SKG Radiology  $6,125.45
Dr G J Gee$381.80
Move Well Physiotherapy  $45.95
Dr R Boulter  $779.90
Mr M Lee$4,617.45
SJOG Pathology  $107.20
Perth Radiology  $49.35
Dr W M Carroll  $385.00
Guardian Pharmacy  $1,099.40
Endeavour Physiotherapy  $346.35
Woodbridge Physiotherapy  $161.30
Workfocus  $5,712.85
$20,759.25
To recognise the contribution of the 2005 back injury towards the medical costs which were incurred after 4 January 2006, consistent with the matters I have already addressed in relation to causation, I would not allow the full amount of $20,759.25. It is likely that but for the 2006 back injury, Mr Lines would have continued to be reviewed by his general practitioner and other treating specialists, receiving physiotherapy and taking medication. I allow the full amount of Mr Lee's costs, as it is apparent from the schedule that most of this relates to the surgery undertaken in April 2006. I reduce the balance of special damages by 50 per cent, reducing the special damages to a total $12,688.35. I allow interest on that amount in the sum of $1,507.38 (3.96 years at 3 per cent). The total for this head of damage is therefore $14,196.

Future medical expenses

In the particulars of damage Mr Lines claims a total amount of $102,108.56 for future medical expenses. The claim is made up of monthly visits by Mr Lines to his general practitioner at a weekly cost of $12.69, specialist visits three times a year at a weekly cost of $8.65 and medication at a weekly cost of $27.70. The total of $49.04 per week has been calculated to $37,108.56 by the application of the multiplier for another 31.90 years, the anticipated life expectancy of Mr Lines based on ABS Life Tables. In addition there is a claim for a further $65,000 for what is said to be the "strong chance" that at some stage in the future Mr Lines will require a further back operation.
There was evidence regarding the medication which Mr Lines took (Tramadol, Panadeine Forte and Nurofen and also, as recorded in Dr Bowles' report of 27 February 2009, Endone, a narcotic analgesic), but no evidence was led concerning the costs of that medication. Dr Thng was asked about the need for future treatment and gave evidence only that he would like to obtain a second opinion, since only the opinion of one neurosurgeon, Dr Michael Lee, and one pain specialist, Dr Gee had been obtained. Dr Thng thought it would be reasonable to say that treatments and options offered by neurosurgeons or pain specialists can differ and occasionally patients benefit from a second opinion where alternative strategies might be more helpful in dealing with their pain.
Dr Bowles was of the opinion that there was not any medical procedure which would provide any benefit to Mr Lines, and he should be encouraged to exercise and be active. Dr Bowles's view was that attempts should be made to reduce and then eliminate Mr Lines' use of narcotic analgesia, explaining that Panadol is very effective for pain relief when taken regularly and that he recommends the use of heat backs for back pain.
As a qualified specialist occupational physician with experience in work related back injuries and rehabilitation, I prefer the evidence of Dr Bowles to that of Dr Thng, a general practitioner, on the issue of what future treatment Mr Lines requires. Dr Bowles' opinion is supported by the reports of both the neurosurgeon, Mr Lee, and the pain management specialist, Dr Gee. In Mr Lee's report of 1 June 2006 he recommended that Mr Lines undertake "gentle exercises and hydrotherapy and patience". In his report of 13 July 2006 Mr Lee advised that no further surgery would be beneficial. Dr Gee in his reports of 11 August 2006 and 20 October 2006 said he did not see any indication for invasive treatment for Mr Lines, and also advocated exercise.
Based on the expert evidence of Dr Bowles, Mr Lee and Dr Gee I would not allow the claim of $65,000 for a future back operation, would not allow the cost of future specialist reviews and would only allow an amount for ongoing costs for Mr Lines attending his general practitioner and for future medication, on a reduced basis.
I also need to apply a deduction for contingencies to reflect the probability, particularly with the previous 2002 and 2005 back injuries, that Mr Lines may have still have required these future costs, even without the 2006 back injury.
Taking into account these matters and the lack of evidence about the costs of Mr Lines' medication and attendances on his general practitioner, it is not possible to arithmetically calculate an appropriate allowance for this head of damage. I therefore allow a global amount of $5,000 for future medical expenses relating to general practitioner visits and the cost of medication.

General damages

In April 2006 Mr Lines underwent surgery for his back, an L3/4 discectomy, but that did not alleviate all his symptoms. Mr Lines underwent a left L3 nerve root sleeve injection in July 2006 which appeared to provide some relief from leg pain, but muscle pain and spasm persisted on the left hand side. Following this surgery and treatment Mr Lee and Dr Gee both reported that there was little difference in the symptoms which Mr Lines reported before and after the 2006 back injury.
The most recent medical report is from Dr Bowles of 4 August 2009. In that report, he recorded Mr Lines' present symptoms. Mr Lines reported ongoing back pain, which he described as an "ache", present most of the time and varying in intensity between 3 out of 10 to 7‑8 out of 10. He had an ache down the back of the left leg into the calf and, recently some discomfort in the bottom of his foot. Now and again he would get a "pins and needles" type sensation.
Although experiencing this back ache as he described to Dr Bowles, it is apparent that this has not affected Mr Lines' activities of daily living and he is independent in living, showering, dressing, cleaning and toileting. Dr Bowles had earlier noted in his report of 27 February 2009 that Mr Lines showed no sign of restriction or impairment during informal examination and that he walked without a limp.
Mr Lines gave evidence that before January 2005 he did not play any sports or undertake any leisure activities. His spare time was spent doing things around the house which he had bought with his partner. There was no suggestion that he could no longer do things around the house. There is no evidence that the 2006 back injury brought about any major change to Mr Lines' normal activities of daily living or enjoyment of life.
Taking into account that 50 per cent of his present symptoms are referrable to his previous back injuries, I consider an appropriate award for general damages for the 2006 back injury to be $15,000.
This assessment means that no award of general damages ought to be made to Mr Lines, having regard to the provisions of the s 9(1) of the Civil Liability Act restricting damages for non‑pecuniary loss (general damages). This provides that if the amount of non‑pecuniary loss is assessed to be not more than Amount A for the year in which the amount is assessed, no damages are to be awarded for non‑pecuniary loss. Pursuant to s 10 and the Government Gazette of Friday 12 June 2009, from 1 July 2009 Amount A is $16,500.

Summary of provisionally assessed damages

Before deduction for contributory negligence, I provisionally assess Mr Lines' damages as follows:
General damages  $ Nil
Past loss of earnings  $87,188.00
Past loss of superannuation  $7,419.00
Interest on past loss of earnings and superannuation        $11,240.00
Future loss of earnings  $73,912.00
Future loss of superannuation  $6,876.00
Special damages  $14,196.00
Future Medical Expenses  $ 5,000.00
TOTAL:    $205,831.00
This must be reduced on account of Mr Lines' contributory negligence, so that the total of the provisionally assessed damages would be reduced by 70 per cent to $61,749.

Should workers' compensation payments be deducted from the provisionally assessed damages?

Mr Lines received workers' compensation payments following the 2005 back injury, totalling $107,968.43. From the documents produced at trial, the following payments were made after the 2006 back injury:
Compensation payments $48,017.28
Medical, hospital and associated expenses $20,759.25
In November 2006 Mr Lines entered into a Memorandum of Agreement with CBH to settle his workers' compensation claim, pursuant to s 67(2) and s 76 of the Workers' Compensation Act. The settlement was said to relate to the 2005 back injury but as I have already observed, the 2006 back injury was treated as an aggravation of the 2005 back injury. By this settlement, in addition to the weekly payments and expenses already received of $107, 968.43, a further lump sum of $65,000.00 was paid, as follows:
Weekly payments of compensation by way of redemption
of liability to make future weekly payments as for
permanent partial incapacity   $30,000.00
Medical, hospital and associated expenses  $ 21,562.48
Compensation payable under Part III Division 2 of the Act      $13,439.52
Workfocus has submitted that from any award of damages to Mr Lines there should be a deduction for the workers' compensation payments made and any compensation settlement monies received by Mr Lines from his employer, CBH.
In my view I would be in error if I were to make a deduction for these worker's compensation payments or any part of them, having regard to the provisions of s 92 and s 93 of the Workers' Compensation Act. Under s 93(1)(a) it is contemplated that a worker can take common law action against a defendant for an injury, while making no allegation of common law liability against his employer. Any judgment against that defendant in favour of the injured worker must be for the full amount of damages, without regard to the compensation paid to the worker: Hi‑tech Demolition Co Pty Ltd v Mainline Demolitions [2000] WASCA 342 at [6] and [7]; EMS Holdings Pty Ltd v International Shipyards Pty Ltd, unreported; FCt SCt of WA; Library No 980655; 12 November 1998 per Kennedy J at 8–9.
The defendant is bound then to pay to the employer, as a first charge against the judgment pursuant to s92(c), any compensation or expenses paid by the employer: ODG Properties (WA) Pty Ltd v Middler Nominees Pty Ltd [1990] WAR 235 at 242, 245; Vanguard Press Pty Ltd v Baxter (1995) 14 SR (WA) 190 at 194. There is no unfairness to the worker (in this case Mr Lines) in the employer receiving payment of that charge, before the worker receives any judgment monies, since the legislative intent behind s 92 is to defeat a double recovery by a worker. A worker who is injured in a work related accident may recover workers' compensation or common law damages but not both: EMS Holdings Pty Ltd v International Shipyards Pty Ltd (supra).
Had I found for Mr Lines on liability, then before any entry of judgment s92(a) would need to be followed. This provides that if a court decides that an action either against the employer or against some other person (or against both) should succeed, then after damages have been ascertained, but before judgment has been entered for the worker, the latter must be given an opportunity to elect whether to have judgment or to discontinue the action.

Conclusion

In view of my findings on liability Mr Lines' claim should be dismissed.
SCHEDULE

Past loss of earnings calculations

1.4 January 2006 to 5 July 2006 (26 weeks)
Mr Lines unfit by reason of 2006 back injury.
Tax on $1,166 according to Australia Tax Office Weekly Tax Tables from 1 July 2005 is $289.
$877 x 26 = $22,802

2.5 July 2006 to 30 June 2007 (52 weeks)
Mr Lines recovered from treatment for the 2006 back injury. Mr Lines' Incapacity for work attributable 50% to previous injuries and 50% to 2006 back injury.
Tax on $1,166 according to ATO Weekly Tax Tables from 1 July 2006 is $279.
$887 x 52 x 50% = $23,062
Less contingencies 10% = $20,756

3.1 July 2007 to 30 June 2008 (52 weeks)
Incapacity for work attributable 50% to previous injuries and 50% to 2006 back injury.
Tax on $1,166 according to ATO Weekly Tax Tables from 1 July 2007 is $264.
$902 x 52 x 50% = $23,452
Less contingencies 10% = $21,107

4.1 July 2008 to 27 February 2009 (34 weeks)
Incapacity for work attributable 50% to previous injuries and 50% to 2006 back injury.
Tax on $1,166 according to Australian Tax Office Weekly Tax Tables from 1 July 2008 is $253.
$913 x 34 x 50% = $15,521
Less contingencies 10% = $13,969

5.27 February 2009 to 22 May 2009 (12 weeks)
Mr Lines has a residual earning capacity in alternative occupations which he was able to exercise at the latest by 27 February 2009 on a part‑time basis.
Tax on control room operator's weekly wage of $627.50 according to Australian Taxation Office Weekly Tax Tables from 1.7.08 is $76.
$913 - $275 (half of control room operator's wage) = $638 x 12 x 50% = $3,828
Less contingencies 10% = $3,445

6.22 May 2009 to 30 June 2009 (5 weeks)
Mr Lines' residual earning capacity is now on a full‑time basis.
$913 - $551 = $362 x 5 x 50% = $905
Less contingencies 10% = $815

7.1 July 2009 to 23 December 2009 (26 weeks)
According to Australian Taxation Office Weekly Tax Tables from 1.7.09 tax on $1,166 is $249 and on $627.50 is $75.
$917 - $550 = $367 x 26 x 50% = $4,771
Less contingencies 10% = $4,294

Total past loss of earning capacity

1.$22,802
2.$20,756
3.$21,107
4.$13,969
5.$ 3,445
6.$ 815
7.$ 4,294
$87,188

Past loss of superannuation calculations

(Calculated on gross wages)
1.4 January 2006 to 5 July 2006 (26 weeks)
Total incapacity due to 2006 back injury
$1,166 x 26 x 9% x 70% (Jongen deduction of 30%) = $1,910

2. 5 July 2006 to 27 February 2009 (2 years, 34 weeks or 138 weeks).
Total incapacity 50% attributable to 2006 back injury.
$1,166 x 138 x 9% x 70% x 50% = $5,069
Less contingencies 10% = $4,562

3.27 February 2009 to 22 May 2009 (12 weeks)
With part time residual capacity
$1,166 - $313.50 x 12 x 9% x 70% x 50% = $322
Less contingencies 10% = $290

4.22 May 2009 to 23 December 2009 (43 weeks)
$1,166 – 627 x 43 x 9% x 70% x 50% = $730
Less contingencies 10% = $657

Total past loss of superannuation

1.$1,910
2.$4,562
3.$ 290
4.$ 657
$7,419