Livermore v Nepean Longwall Pty Ltd

[2017] NSWDC 5

District Court

New South Wales

Medium Neutral Citation:

Livermore v Nepean Longwall Pty Ltd [2017] NSWDC 5

Hearing dates:

17 & 18 October 2016

Date of orders:

03 February 2017

Decision date:

03 February 2017

Jurisdiction:

Civil

Before:

Judge Levy SC

Decision:

1. Verdict for the plaintiff in the amount of $322,738.70;

 

2. Pursuant to s 151Z of the Workers Compensation Act 1987, the notional negligence of the plaintiff’s employer is assessed at 20 per cent;

 

3. After applying the findings made pursuant to s 151Z of the Workers Compensation Act 1987, judgment for the plaintiff against the defendant in the sum of $258,190.96;

 

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

 

5. The exhibits may be returned;

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

Catchwords:

TORT – negligence – employee of labour hire company injured in an assigned workplace – occupier’s liability – whether defendant occupier was negligent – whether plaintiff was contributorily negligent – whether damages should be reduced on account of alleged notional negligence on the part of the plaintiff’s employer pursuant to s 151Z of the Workers Compensation Act 1987 – limitation – whether proceedings are statute barred; DAMAGES – assessment of claimed heads of damage

Legislation Cited:

Civil Liability Act 2002, Pt 1A, s 5B, s 5C, s 5D, s 15, s 16
Evidence Act 1995, s 60
Limitation Act 1969, s 50C, s 50D
Workers Compensation Act 1987, s 151L, s 151Z

Cases Cited:

Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem [2009] HCA 48; (2009) 238 CLR 420
Adelaide Stevedoring Co Ltd v Forst [1940] HCA 45; (1940) 64 CLR 538
Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13
Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; (1987) 162 CLR 479
Baker-Morrison v State of NSW [2009] NSWCA 35; (2009) 74 NSWLR 454
Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541
Browne v Dunn (1894) 6 R 67
Cupac v Cannone [2015] NSWCA 114
Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25
Glen v Sullivan [2015] NSWCA 191
Graham v Baker [1961] HCA 48; (1961) 106 CLR 340
Larson v Commissioner of Police [2004] NSWCA 126
Majkic v Bonnano [2008] NSWCA 253
Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638
Manly Municipal Council v Skene [2002] NSWCA 385
Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1; (1995) 127 ALR 180
Miller v Galderisi [2009] NSWCA 353
Penrith City Council v Parks [2004] NSWCA 201
Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164
Sampco Pty Ltd v Wurth [2015] NSWCA 117
State of NSW v Gillett [2012] NSWCA 83
State of NSW v Moss [2000] NSWCA 133, (2000) 54 NSWLR 536
Stevens v Brodribb Sawmilling Company Pty Ltd [1986] HCA 1; (1986) 160 CLR 16
Strong v Woolworths Ltd t/as Big W [2012] HCA 5, (2012) 246 CLR 182
Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 442
Watts v Rake [1960] HCA 58; (1960) 108 CLR 158

Category:

Principal judgment

Parties:

Lourdelyn Livermore (Plaintiff)
Nepean Longwall Pty Limited (Defendant)

Representation:

Counsel:
Mr H Halligan (Plaintiff)
Mr SJ Walsh (Defendant)

  Solicitors:
Beilby Poulden Costello (Plaintiff)
Curwoods (Defendant)

File Number(s):

2014/348735

Publication restriction:

None

Judgment

Table of Contents

Nature of case and factual background	[1] – [4]
Issues	[5] – [6]
Evidence overview	[7] – [12]
Credibility and reliability of testimony	[13] – [20]
Facts	[21] – [75]
(1) Plaintiff’s pre-accident circumstances	[22] – [24]
(2) The work system	[25] – [28]
(3) Accident occurrence	[29] – [31]
(4) Injuries	[32]
(5) Treatment	[33] – [34]
(6) Subsequent medical and allied reviews	[35] – [49]
(7) Resolution of conflicting medical opinions	[50] – [61]
(8) Disabilities that remain	[62] – [67]
(9) Work effects	[68] – [69]
(10) Domestic effects	[70] – [74]
(11) Mitigation	[75]
Issue 1 – Negligence of the defendant	[76] – [104]
The duty of care and its scope and content	[79] – [80]
Risk of harm	[81]
Legislation	[82] – [85]
Consideration	[86] – [104]
Issue 2 – Alleged contributory negligence	[105] – [106]
Issue 3 – Notional negligence of the plaintiff’s employer	[107] – [111]
Issue 4 – Assessment of damages	[112] – [142]
Plaintiff’s probable life span	[113]
Non-economic loss	[114] – [118]
Past economic loss	[119] – [126]
Past loss of superannuation	[127]
Future economic loss	[128] – [132]
Future loss of superannuation	[133]
Past domestic assistance	[134] – [136]
Future domestic assistance	[137] – [139]
Future treatment	[140]
Out-of-pocket expenses	[141]
Summary of damages assessment	[142]
Issue 5 – Limitation defence	[143] – [150]
Disposition	[151]
Costs	[152]
Orders	[153]

Nature of case and factual background

1. The plaintiff, Mrs Lourdelyn Livermore, who is presently aged 38 years, brings this claim framed in negligence for occupiers’ liability against the defendant, Nepean Longwall Pty Ltd, also known as Inbye Mining Services, claiming damages for personal injury she sustained in the course of her work on 25 July 2011. That claim is primarily governed by the provisions of the Civil Liability Act 2002 [the “CL Act”].

2. The plaintiff was employed by a labour hire company, Maxwell Recruitment Pty Ltd, and on the day of her injury she was assigned to work at the defendant’s premises as a trades assistant in a work process involving the repair and maintenance of heavy mining equipment known as roof chocks, at Rutherford, NSW. The function of a roof chock was to provide an overhead protection cage for underground coal miners.

3. Immediately before her injury occurred, the plaintiff was standing at ground level next to a roof chock on which maintenance work was being performed by another employee, Mr Geoffrey Guest. She was assisting Mr Guest by handing him maintenance tools he required whilst he was standing in an elevated position above the ground on a stool which was located on a steel section of the roof chock. The surface of the area upon which the stool was located had been contaminated by solsenic or hydraulic fluid, a mixture of oil and water, which had flowed down from the roof chock during the disassembly process, thereby rendering the surface slippery. In those events, Mr Guest lost his foothold and slipped when the stool on which he was standing moved. He then fell down backwards onto the plaintiff who was standing below and nearby. The plaintiff broke his fall, and as a result, she sustained injuries.

4. The defendant filed defences claiming the plaintiff was contributorily negligent, and also sought a reduction in the plaintiff’s damages for the negligence claimed against the plaintiff’s employer, in respect of which s 151Z of the Workers Compensation Act 1987 applies [the “WC Act”]. The defendant also claimed that the plaintiff’s claim was statute barred, which required a consideration of s 50C and s 50D of the Limitation Act 1969.

Issues

5. Apart from the need to resolve preliminary matters concerning the credibility and the reliability of testimony, and the material factual matters in dispute, such as how the incident occurred, a review of the pleadings, the evidence and the submissions, identifies the following issues as arising for determination:

Issue 1 - Whether, according to the duty of care owed by the defendant as the occupier in control of the system of work, and having regard to the relevant risk of harm, within the meaning of Pt 1A of the CL Act, the defendant was negligent, and if so, whether such negligence caused the harm suffered by the plaintiff;

Issue 2 -   Whether there was contributory negligence on the part of the plaintiff, and if so, to what extent;

Issue 3 - Whether, for the notional purposes of s 151Z of the WC Act, there was negligence on the part of the employer, and if so, to what extent should the plaintiff’s damages be reduced on that account;

Issue 4 -   The assessment of the plaintiff’s entitlement to damages;

Issue 5 -   Whether the plaintiff’s claim is statute barred, as claimed by the defendant.

6. The issues that arise concerning the nature and the extent of the plaintiff’s injuries, the residual effects of any ongoing disabilities, and the effects of these matters on the plaintiff’s earning capacity, and upon her domestic activities, will be dealt with in those portions of my reasons that deal with the assessment of damages.

Evidence overview

7. In the case for the plaintiff, in addition to her own evidence, factual evidence was called from Mr Geoffrey Guest, the tradesman fitter who had fallen onto the plaintiff at the time of her injury, and from the plaintiff’s husband, Mr Keith Livermore, who had also worked at the defendant’s premises in a similar role to that of Mr Guest.

8. The plaintiff tendered as Exhibit “B” a bundle comprising several medical reports which require consideration and analysis. The plaintiff also tendered a photograph of the area where the incident occurred: Exhibit “C”.

9. On the liability issues, the plaintiff relied upon an expert opinion of a consultant safety engineer, Mr David Dubos: Exhibit “B”, pp 14 – 16. Mr Dubos’ opinion was that the plaintiff had been engaged in an unsafe system of work (Exhibit “B”, p 24, par 47), and the defendant had not effectively implemented, maintained and supervised appropriate work systems so as to minimise, if not avoid foreseeable risks to the plaintiff in the workplace: Exhibit “B”, p 36, par 119.

10. Mr Dubos was not required for cross-examination on the content of his report, or on his opinions. The defendant proffered no contradictory evidence to the opinions expressed by Mr Dubos.

11. In the case for the defendant, the only witness called to give oral evidence was Mr Craig Stafford, who at the time of the plaintiff’s injuries, was employed by the defendant as an on-site quality safety environment co-ordinator.

12. The defendant tendered a medical opinion dated 16 February 2016 from Dr FJ Harvey (Exhibit “1”), the plaintiff’s employment timesheets between 15 August 2011 and 21 August 2011 (Exhibit “2”), a tender bundle of various work-related documents and photographs which will be referred to where relevant (Exhibit “3”), and some incident report documentation prepared by various employees of the defendant, including documents entitled System Improvement Request forms: Exhibit “4”.

Credibility and reliability of testimony

13. The defendant attacked the credit of the plaintiff by suggesting she had overstated the extent of her previous work experience before entering into the defendant’s employment: T28.8. – T28.19; T81.50 – T85.23. The defendant also suggested that the plaintiff had made up her account of having back pain, a proposition which she denied: T116.26 – T117.2. In that regard, I have accepted her denial as truthful.

14. The plaintiff acknowledged that in her applications for employment, she had over-stated her work experience in a misleading way in order to secure employment. Whilst such conduct was not creditable, to her credit, this was freely acknowledged by her when the subject was raised in cross-examination. The plaintiff also acknowledged that she had avoided disclosing the extent of her back disability at a work assessment in order to secure employment as she needed an income and the work she was applying for was not difficult, and she expected she would receive help if she asked for assistance: T91.27 – T92.25; T110.37 – T113.6.

15. The plaintiff’s actions in those respects were frankly explained by her in terms of her need to obtain work and her aim to impress employers with her ability to successfully work in tasks that could be quickly learnt: T106.33 – T106.45. On considering that evidence and her evidence as a whole, I consider that no relevant adverse credit issue has been raised which would cause me to doubt any aspect of her evidence in terms of its reliability.

16. The plaintiff’s co-worker, Mr Guest, was a tradesman employed to work on the maintenance of the roof chock in question when he fell onto the plaintiff in the circumstances that gave rise to these proceedings. He gave his evidence in a straightforward manner and the content of his evidence did not give rise to any reservations as to the credibility or the reliability of his testimony.

17. The defendant made what I considered to have been an unsustained attack upon the veracity of the evidence of Mr Livermore. The defendant’s suggestion was that whereas Mr Livermore had claimed that before his wife’s accident, he and three other tradesmen in a similar position to himself, had complained to the defendant’s shift supervisors, Mr Brad Davies and Mr Matt Gleeson, about a relevant safety issue in the work system about six weeks before the plaintiff’s injury (T120.17 – T121.44; T125.42), he had not documented his safety concerns in that regard: T125.46 – T126.4.

18. I accept Mr Livermore’s denial of that suggestion. It is noteworthy that neither Mr Davies nor Mr Gleeson were called to give contradictory evidence in the defendant’s case, and no application was made by the defendant to seek an adjournment of the proceedings to obtain factual evidence from them on that subject following Mr Livermore’s cited denials. I formed the view that Mr Livermore gave measured, truthful and reliable testimony on the matters that he was called upon to relate in his evidence.

19. The defendant called oral evidence from Mr Craig Stafford, who at the time of the plaintiff’s accident, was employed by the defendant as a quality, safety, and environmental co-ordinator. He had inducted the plaintiff into the defendant’s work system and safety procedures. His evidence sought to explain the defendant’s complicated incident reporting and records system. He acknowledged that the defendant’s documentation in that regard was in parts equivocal (T135.40), and not entirely informative of what had actually occurred: T135.49 – T136.5.

20. It appeared that Mr Stafford had little direct knowledge of the events: T137.27. He confirmed that no witness statements had been obtained by the defendant in relation to the incident in question: T146.1 – T146.8. It transpired that the defendant’s incident record of the event did not contain a full description, which limited its reliability: T147 – T152. Whilst no credit issues arose from Mr Stafford’s evidence, I considered that his evidence was of very little if any utility to the task of resolving the issues calling for determination in the proceedings. Mr Stafford’s evidence did not in any material way detract from the reliability of the evidence of the plaintiff and the other witnesses called in the plaintiff’s case.

Facts

21. Unless otherwise stated, my findings of fact are set out in the paragraphs that follow.

(1) Plaintiff’s pre-accident circumstances

22. The plaintiff and her husband had moved to Australia in September 2010. Between February 2011 and May 2011, the plaintiff worked at the Caltex Kurnell facility. Her duties in that position involved monitoring personnel working in confined spaces and confined atmospheric working conditions. Her husband is a tradesman. In May 2011, they sought work together in the maintenance sector of the mining industry at various locations where work was available. Before the subject accident she was in good health and did not have any physical restrictions.

23. In May 2011, the plaintiff obtained employment with the defendant as a tradesman’s assistant. That work required her to work in close proximity to where maintenance tradesmen were working, manually handing them particular tools as and when this was required. That work provided her with a significant average income in the range $1200 to $2000 per week: T34.25 – T34.31. At the time of the accident the plaintiff received $2012 per week net: T35.16. Those earnings fluctuated according to the hours and days worked.

24. The plaintiff and her husband maintained a household together with the plaintiff’s son from a previous relationship. At the time of the accident, the plaintiff’s son was aged 15 years. A part of the plaintiff’s motivation to work included her need to send money to the Philippines to support some members of her family who continued to reside there: T18.8. – T18.21.

(2) The work system

25. On the day in question, the plaintiff’s duties required her to stand in relatively close proximity to Mr Guest so that she could physically hand him particular tools that he required from time to time in the course of his work. The tools were located on moveable trolleys that were taken to different locations in the premises, as needed: T8 – T9. The work routine typically involved the plaintiff working eight days straight, followed by a day off work: T9.35 – T9.39.

26. The general work system involved maintenance tradesmen standing at a height above the floor or ground level, on a variety of objects, comprising either platforms, steps or parts of mining machinery, in order to strip down and refurbish that machinery. The roof chocks were described as weighing about 120 tonne, consisting of a roof cage about 1.8m in height, designed as a protective cage or shelter for underground mine workers: T10.6 – T10.18. Individual roof chocks varied in dimensions.

27. On 25 July 2011, at the defendant’s Rutherford premises, the plaintiff had been assigned to assist Mr Guest whilst he was carrying out maintenance work on the roof chock in question. To do so, he was standing on a plastic stool located on what was described as the pontoon section of the roof chock. He was working at a height that was variously described as being about 8 or 9 feet from the ground: T56.35. I infer that distance to be the height at which his head, or his hands, were above ground level. He was in the course of disconnecting and removing hydraulic hoses from which hydraulic fluid or solsenic fluid would then slip out and escape onto the structures and the ground below by force of gravity.

28. The location where Mr Guest was standing was variously described. The plaintiff stated he was standing on something about 1.2m above the ground, but not on a platform: T10.49 – T11.6. Mr Guest described the place where he had been standing as being a plastic stool or a safety step, which had been placed on what he identified as being the pontoon section of the roof chock: T56.35.

(3) Accident occurrence

29. Whilst working with his hands above his head, at the described elevated height, Mr Guest lost his footing and fell down backwards, towards the plaintiff. Mr Guest stated this occurred because there had been a sudden and unexpected movement of the plastic step or stool upon which he had been standing, which resulted in him overbalancing, and then falling backwards: T56.37 – T56.39.

30. In those events, the plaintiff, who was standing below and nearby, caught and broke Mr Guest’s fall. She caught his head between her right elbow and arm, whilst the rest of his body made contact with the ground: T56.37 – T56.42. In those events, she had protected his head from reaching the ground in the fall. She said, and I accept, that in doing so, she used what she described as her whole strength to prevent his head from striking the ground, but in the course of those rapidly occurring movements, they both fell to the ground together, she breaking and cushioning his fall: T13.18 – T13.49.

31. Having regard to Mr Guest’s estimated weight of about 80 – 90kgs (T56.45), it is plain that in breaking Mr Guest’s fall, by the time the plaintiff’s body made contact with the ground, it must have absorbed some considerable force due to Mr Guest’s fall from the described height.

(4) Injuries

32. Immediately following the fall, the plaintiff felt pain and discomfort in the right part of her back, and from the right buttock down to the heel of her right foot: T15.17 – T15.50. Before that time, she had never experienced any back pain of that kind (T15.26) or any leg pain of that kind: T15.2.

(5) Treatment

33. The plaintiff did not seek out any immediate medical advice following the injury because, in the days that followed, she initially did not think the discomfort she was experiencing was accident-related: T15.18 – T15.23. The plaintiff’s significant back symptoms emerged when she travelled to Queensland by car in the month following the accident.

34. The plaintiff had returned to her work on the following day, and took Nurofen, which she found to be partially effective in enabling her to cope with her work: T16.15. After the accident, the plaintiff was assigned to store duties: T16.28. I infer those duties to have been lighter than those of her pre-accident role.

(6) Subsequent medical and allied reviews

35. The medical evidence tendered in this case was sparse. The chronology that emerged from the medical evidence is as follows.

36. The plaintiff has been under the care of her general practitioner in Cessnock, Dr Harshrel Parikh. Neither party tendered any reports from that doctor. Only his consultation records and some copies of the results of tests he had ordered were tendered.

37. On 28 July 2014, at the request of Dr Parikh, the plaintiff underwent a CT scan of her lumbar spine in view of her history of back pain with radiation to her right leg. That scan was reported as showing disc disease at L4/L5 with focal disc herniation effacing the right lateral recess and possible mass effect of the right L5 nerve: Exhibit “B”, pp 1 – 2.

38. On 28 August 2014, at the request of Dr Parikh, the plaintiff underwent a cervical CT scan, which was reported as showing no evidence of discitis, and no significant degenerative change: Exhibit “B”, p 6.

39. On 29 September 2014, at the referral of Dr Parikh, the plaintiff was examined by Dr Bruno Gomes, an orthopaedic surgeon, for a history of neck pain, right upper limb numbness, low back pain and discomfort, and radicular symptoms into her right leg: Exhibit “B”, pp 3 – 4.

40. Dr Gomes arranged a CT scan of the plaintiff’s cervical spine. The actual report of that scan was not tendered in the plaintiff’s case, but its terms were noted by Dr Gomes as showing, amongst other things, some mild uncovertebral hypertrophy, with an L4/L5 disc bulge, and lateral recess impingement at L5: Exhibit “B”, pp 3 – 4.

41. Dr Gomes referred the plaintiff to Dr Michael Katekar, a neurologist, for nerve conduction studies because of upper limb symptoms: Exhibit “B”, p 5. The plaintiff said that ultimately, she did not pursue the nerve conduction studies because her hand symptoms were intermittent: Exhibit “B”, p 9.

42. Dr Gomes considered the imaging findings relating to the plaintiff’s lumbar spine were consistent with her clinical presentation, and he considered it was likely that the plaintiff had L5 nerve root impingement, for which he arranged a transforaminal corticosteroid injection: Exhibit “B”, p 4. The plaintiff has had two such injections which gave her significant, but only temporary relief: Exhibit “B”, p 9.

43. On 19 November 2014, the plaintiff saw Dr Gomes again, principally for claim documentation purposes: Exhibit “B”, p 5. At that time he made no material changes to the opinions cited in the preceding paragraphs.

44. On 28 October 2015 at the request of her solicitors, the plaintiff was examined by Dr Peter Endrey-Walder, a general and trauma surgeon: Exhibit “B”, pp 7 – 14. Dr Endrey-Walder considered the plaintiff to have suffered soft tissue injury to her lower back when she broke the fall of Mr Guest. He also considered that the fall caused what he described as the L4/L5 disc injury reported on CT scan: Exhibit “B”, pp 11 – 12.

45. On the basis of the matters he reviewed and outlined, Dr Endrey-Walder considered the plaintiff was unfit for work as a trades assistant, and he considered that it was problematic as to whether she could obtain benefit from vocational rehabilitation: Exhibit “B”, p 12. Apart from recommendations for hydrotherapy, and for further CT guided steroid injections, he made no other treatment suggestions: Exhibit “B”, p 12.

46. On 16 February 2016, at the request of the solicitor for the defendant, the plaintiff was examined by Dr FJ Harvey, a consultant orthopaedic surgeon: Exhibit “1”. After examining the plaintiff and reviewing her history, Dr Harvey noted the history that the plaintiff had been complaining of low back pain since August 2011: Exhibit “1”, p 5. It is common ground that the reported reference to the incident occurring in August was an erroneous reference for 25 July 2011.

47. From his vantage point, some 5 years after the accident, Dr Harvey considered the plaintiff’s history was not consistent with her having sustained “a significant low back injury in August 2011”, and he considered “it seems unlikely” that she had experienced “a very significant low back pain” at the time of her fall: Exhibit “1”, p 5. The adjectival terms of that opinion were inherently imprecise.

48. In expressing his conclusions on those matters, and on the plaintiff’s work capacity, Dr Harvey said he had relied on objective evidence (Exhibit “1”, pp 5 – 6), and therefore, it seems, he had discounted the plaintiff’s necessarily subjective descriptions concerning the timing of her injury and the onset of her symptoms.

49. Dr Harvey considered that the CT findings concerning the plaintiff’s lumbar spine as noted on 28 July 2014, were common findings of degenerative changes seen in the general community, and he discounted an accident-related causal connection absent “appropriate clinical co-relation in this case”: Exhibit “1”, p 6. That view requires close examination in light of the plaintiff’s evidence.

(7) Resolution of conflicting medical opinions

50. As the parties chose not to call oral evidence from the authors of the respective medical experts, and chose not to explore or challenge the opposing views of those experts through cross-examination, an analysis of the basis of the conflicting opinions is therefore required: Cupac v Cannone [2015] NSWCA 114, at [18], following Manly Municipal Council v Skene [2002] NSWCA 385, at [21] – [22].

51. In such circumstances, the aspects of the opinions that remain in material conflict stand to be resolved according to the validity of the assumptions relied upon by the experts, and on a consideration of the onus of proof: Majkic v Bonnano [2008] NSWCA 253, at [26], following Larson v Commissioner of Police [2004] NSWCA 126, at [48].

52. On that approach to the expert evidence, in this case, I consider that Dr Harvey’s opinions should be significantly discounted when weighed against the evidence of the plaintiff and the opinions of Dr Gomes and Dr Endrey-Walder. This is because Dr Harvey has approached his analysis on the basis of a consideration weighted towards objective signs on imaging and on examination, and in doing so, in relatively imprecise terms he has discounted highly relevant aspects of evidence of the plaintiff’s subjective experience of her symptoms. That is a particularly significant factor, given my acceptance of the plaintiff as a truthful witness.

53. Furthermore, Dr Harvey’s qualified statement that he could find no objective evidence that the plaintiff sustained any spinal injury which should cause continuing problems (Exhibit “1”, p 6) has to be viewed in the context of his assumptions, where he in effect discounted the plaintiff’s subjective descriptions.

54. Furthermore, Dr Harvey’s interpretation of the lumbar CT findings seemed at odds with the findings of Dr Gomes. In that latter regard, Dr Harvey noted the findings of “some disc abnormalities at the L4/5 level” were common in the general community (Exhibit “1”, p 6), was not specifically stated to apply to the appearance of the lateral recess impingement at the L5 level, as was described by Dr Gomes: Exhibit “B”, pp 3 – 5. I do not read Dr Harvey’s opinion expressed in those terms to derogate from the plaintiff’s case on the causation of her back symptoms.

55. As Dr Harvey has not engaged with Dr Gomes’ opinion in that regard, or explicitly contradicted Dr Gomes’ opinion. Therefore, I consider that his opinion represents an incomplete analysis of the plaintiff’s reported problems, especially as he has relied upon objective matters only. I therefore do not accept his opinions where they conflict with Dr Gomes, or for that matter, Dr Endrey-Walder, on that aspect of the radiological findings.

56. Dr Harvey’s opinion was that there was no clinical co-relation between the degenerative changes he referred to in the plaintiff’s lumbar spine because there was no radiculopathy reported on his clinical examination: Exhibit “1”, p 6. The history which Dr Harvey elicited from the plaintiff concerning her back pain in the upper lumbar region was that the described pain was made worse on prolonged sitting and travelling, with radiation and pins and needles sensation down to the lower right limb and foot, aggravated by standing or picking up objects from the floor: Exhibit “1”, pp 3 – 4.

57. The commentary Dr Harvey made following his examination of the plaintiff only stated that he observed the plaintiff to engage in forward flexion to within 25cms of the floor, which produced pain at a higher lumbar level. Dr Harvey appears not to have sought to replicate the plaintiff’s history which referred to the identified activity of picking up objects from the floor, or if he did do so, he did not state that his testing was an equivalent activity to the circumstances in which the plaintiff reported pain. In my view, this discrepancy provides a significant reason for discounting Dr Harvey’s opinions.

58. Another reason for discounting Dr Harvey’s opinion is the divergence between the plaintiff’s history of back pain, which he said he could not co-relate on examination, and the plaintiff’s evidence that she experienced radiated problems about twice per week: Exhibit “B”, p 10. Dr Harvey did not address that component of the plaintiff’s history in which she was complaining of weekly back pain (T124.25) or that she saw a doctor monthly for such problems: T22.22. In my view, those were important elements of the plaintiff’s history which were not addressed by Dr Harvey.

59. In my view, Dr Harvey’s comment by which he noted that the plaintiff “apparently has been suffering from lower back pain for some 5 years it seems she will remain susceptible to this complaint” (Exhibit “1”, p 7), is an incomplete causation analysis as it does not adequately reflect the role the plaintiff’s accident might have had in the emergence and in the continuation of her symptoms.

60. On the basis of his analysis, Dr Harvey discounted as unlikely, that the plaintiff would have suffered a significant back injury at the time of the incident on 25 July 2011: Exhibit “1”, p 5. That opinion is difficult to understand as Dr Harvey’s summary of the description of the history of the incident (Exhibit “1”, pp 1 – 3) makes no mention or attempt at explaining or resolving the dynamic forces that were likely to have affected the plaintiff’s spine at the time of the incident, when a man weighing about 80 – 90kgs fell on her from a height of at least 1.2m, if not 8 – 9 feet, if one takes into account the likely height of Mr Guest’s head above ground level before he fell.

61. Absent such an analysis within the expert evidence, I prefer the approach of a commonsense analysis. I find that Mr Guest, fell onto the plaintiff with considerable force, and on the balance of probabilities, when the plaintiff then fell to the ground as a result, she sustained the soft tissue injuries to her lumbar spine of which she complained, as described by Dr Gomes and by Dr Endrey-Walder: Adelaide Stevedoring Co Ltd v Forst [1940] HCA 45; (1940) 64 CLR 538.

(8) Disabilities that remain

62. Given that I have accepted the plaintiff as a credible witness, I am satisfied that the medical practitioners who have provided reports following their examinations of the plaintiff, have accurately summarised her complaints. I take those summaries to be evidence of her injuries and disabilities: Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25, per Heydon JA at [70]; s 60 of the Evidence Act 1995.

63. I accept that the plaintiff has recovered from the initial neck pain she experienced and described: Exhibit “B”, p 10. I accept that, depending upon her level of activity in which she engages which involves movement of her spine, such as when bending down to lift objects, she experiences aggravation of her back pain, with radiation into her right leg, roughly at a frequency of twice per week and of variable duration: Exhibit “B”, p 10. I also accept that the plaintiff experiences back pain on prolonged standing and sitting, and that the activities of lifting, bending and carrying, are disabilities that are problematic for her: Exhibit “B”, p 10.

64. On the state of the medical evidence, it is not necessary to decide whether the degenerative changes seen in the imaging of the plaintiff’s lumbar spine either pre-dated the injury or were rendered symptomatic by the injury. The important point is that the plaintiff was asymptomatic before the accident and there is no evidence to suggest either that the plaintiff’s symptoms would have occurred in any event, or that the effects of the accident had ceased. In that regard, I consider that the plaintiff has discharged the onus of proof concerning the origins and continuing cause of her symptoms as being accident-related, and the defendant has not discharged the onus of proving the contrary proposition: Watts v Rake [1960] HCA 58; (1960) 108 CLR 158; Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164; Glen v Sullivan [2015] NSWCA 191; s 5D of the CL Act.

65. The plaintiff suffers intermittent low back discomfort with radicular pain in the right leg and foot, with some numbness in the same area. I accept Dr Gomes’ opinion that the plaintiff’s clinical presentation is consistent with the imaging findings in her lumbar spine, the likelihood being that she has an L5 nerve root impingement.

66. The effect of that condition is as described in the detailed history taken by Dr Endrey-Walder, which includes the experience of back pain on sitting, difficulty with lifting and bending, and with leg pain occurring up to two times per week: Exhibit “B”, p 10.

67. I accept the plaintiff’s evidence that her described back pain commences at the top of her right buttock and goes down her right leg to the heel of her foot: T15.34 – T15.50. I accept that she has difficulty with prolonged sitting: T19.35; T86.42. The plaintiff describes her level of back and leg pain as 8 or 9 on a scale of 1 to 10 when it occurs: T24.15 – T24.25. The pain is not a daily occurrence, it is “on and off”: T53.20. The plaintiff’s experiences with back pain have made her approach physical tasks, such as lifting more carefully so as to avoid exacerbating her injury: T102.31. I consider those matters, although subjective, to be important aspects of history that should be taken into account where, in this case, my assessment is that the plaintiff is a credible witness whose evidence should be accepted.

(9) Work effects

68. Following her injury, the plaintiff’s work duties changed to lighter duties, first as a store person, which I note involved lighter duties including sweeping the floor: T16.25, T17.10. The plaintiff did not have any initial post-accident time off work, and she continued in her pre-injury employment until 28 August 2011 because it did not involve any heavy activities, and it did not involve any lifting: T36.5 – T36.27. She only started to feel significant pain in her lower back in September 2011, and initially she did not associate it with the accident: T47.27 – T47.47. That coincided with a long drive to Queensland to seek other work: T47.10. She worked in Queensland for about 1 week and three days: T49.2. In that period she did not seek medical assistance because although her back was troubling her, she thought she could manage, and she still had not associated her back pain to the subject accident: T50.49.

69. The plaintiff managed to obtain other various work in the period between September 2011 and October 2015, with some gaps in that period due to her husband’s incapacity as a result of a motorcycle accident. In more recent times, the plaintiff has unsuccessfully attempted to find alternative work, including interstate: T22.34 – T22.46. She has also been unsuccessfully seeking supermarket checkout type work: T23.1 – T23.30. In that context, she makes a claim for past and future loss of earning capacity.

(10) Domestic effects

70. The plaintiff’s domestic activities have been adversely affected by her disabilities. Although she can carry laundry items, cook and wash dishes, she has difficulty with vacuuming, and scrubbing out the bathroom: Exhibit “B”, p 10.

71. The plaintiff’s evidence on the issue of an injury-related need for domestic assistance was somewhat vague. The evidence is that her mother arrived in Australia in January 2015, and since then, her mother has undertaken the domestic tasks of washing, cleaning the house and mowing the lawns: T24.26 – T24.48; T96.22. The plaintiff’s mother undertakes such work for about 4 hours per day for a household comprising 5 persons: T25.7 – T25.28.

72. The plaintiff accepted that she was able to carry out the physical tasks involved in hanging clothes on the line, sweeping the floor, cleaning cupboards and washing dishes: T96.36 – T96.48. She said that if she needs to bend over to clean cupboards, her son, who is aged 19 years, helps her: T99.36. Her son also mops the bathroom floor, although she is able to do this herself: T100.15 – T100.22.

73. The plaintiff’s husband does the cooking, her son does the vacuuming and the wiping of surfaces: T100.45 – T101.5. The plaintiff said she has no future intention of getting someone to come in and carry out household tasks in return for payment: T103.27. My impression from the plaintiff’s evidence on this topic is that whatever domestic assistance she may be receiving from family members will continue: Miller v Galderisi [2009] NSWCA 353.

74. The claim for damages for domestic assistance must be assessed in the light of the evidence summarised in the preceding paragraphs. In my view, the evidence does not satisfy the threshold for assessment: s 15 of the CL Act.

(11) Mitigation

75. The defendant did not suggest to the plaintiff in cross-examination that she had not sought to mitigate her loss. The defendant made no submissions on this topic. The plaintiff has a common law duty to take reasonable steps to mitigate her damages. In these proceedings, the defendant has the onus of establishing an unreasonable failure to mitigate, unlike in the case of proceedings against an employer, where the person claiming damages must show that reasonable steps have been taken to mitigate damages: s 151L(2) of the WC Act. The effect of the plaintiff’s submissions, which I accept, is that the plaintiff has taken appropriate steps to mitigate her loss: T169.30.

Issue 1 – Negligence of the defendant

76. The plaintiff claims the defendant was negligent according to the following particulars set out in paragraph 7 of her statement of claim filed on 28 November 2014:

1. Failed to devise, install and maintain a safe system of work.

2. Failed to provide Geoff Guest with an appropriate platform or safe working area to conduct the work.

3. Failed to remove the slippery substance in the area.

4. Required and/or permitted the plaintiff to work in the vicinity of Geoff Guest when he was liable to fall.

5. Failed to warn the plaintiff of the dangers involved.

6. Exposed the plaintiff to a risk of injury which could have been avoided by the exercise of reasonable care.

7. Failed to conduct a work safety assessment of the work that Geoff Guest and the plaintiff were required to perform.

8. The plaintiff relies on the doctrine of res ipsa loquitur.

77. The defendant argued it did not have control over the design of the roof chocks, or the condition in which they were provided when Mr Guest and the plaintiff were assigned to carry out maintenance work upon them. In my view, that is an irrelevant consideration. The correct focus for the analysis is that the defendant accepted the roof chocks in order to carry out maintenance work upon them, which involved dismantlement leading to leakage of fluid, and in doing so, by assigning Mr Guest and the plaintiff, and other workers to carry out that work, to a degree that was material, the defendant was in control of the system by which the work should be undertaken: Stevens v Brodribb Sawmilling Company Pty Ltd [1986] HCA 1; (1986) 160 CLR 16, at [9]. Accordingly, the defendant must be taken to have had a relevant duty of care towards on-site workers such as Mr Guest and the plaintiff, which required that the defendant address foreseeable risks of harm emerging in the defendant’s operations at the site.

77. The consideration of the plaintiff’s claim of negligence must commence with an identification of the duty of care owed by the defendant, the scope and content of that duty, and the relevant risk of harm, followed by an application of the pre-conditions required to be met according to s 5B(1) of the CL Act.

The duty of care and its scope and content

79. As the defendant was the occupier of the area of the premises where the plaintiff was assigned to carry out her work duties, it owed the plaintiff a duty to take reasonable care with regard to the conditions under which the plaintiff and Mr Guest were required to work.

80. This was in circumstances where it was known to the defendant that Mr Guest would be working in an elevated position whilst standing on a stool located on a portion of the roof chock which could become slippery from leakage of the oily mixture of solsenic or hydraulic fluid, and where such circumstances posed a foreseeable risk of injury to Mr Guest and other persons who were required to stand nearby in the course of their assigned duties. Those circumstances needed to be addressed by the defendant taking appropriate action consistent with exercising reasonable care: Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; (1987) 162 CLR 479, p 488. That must take place within the framework of the CL Act: Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem [2009] HCA 48; (2009) 238 CLR 420, at [11]; [15]; [27]; [41].

Risk of harm

81. In the circumstances of this case, the risk of harm against which the defendant was required to take reasonable care was the harm of foreseeable injury caused by employees such as Mr Guest slipping and falling onto other employees, such as the plaintiff. That risk of harm was patent because persons in the position of Mr Guest were required to place their weight, either directly or indirectly, on surfaces which would, in the course of the required work, become contaminated by hydraulic fluid in the course of the defendant’s activities. This rendered reasonably foreseeable risk of harm from a slip and fall of the kind experienced by Mr Guest, and the plaintiff.

Legislation

82. It is necessary to assess the plaintiff’s claim that the defendant was negligent in light of three statutory pre-conditions, as required by s 5B(1) of the CL Act.

83. Section 5B of the CL Act, provides as follows:

5B General principles

(1) A person is not negligent 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), and

(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.

84. In making a determination according to the requirements of s 5B of the CL Act, the requirements of s 5C of that Act must also be considered. Section 5C of the CL Act provides as follows:

5C Other principles

In proceedings relating to liability for negligence:

(a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and

(b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and

(c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk.

85. On the question of causation, s 5D of the CL Act provides:

5D General principles

(1) A determination that negligence caused particular harm comprises the following elements:

(a) that the negligence was a necessary condition of the occurrence of the harm ("factual causation"), and

(b) that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused ("scope of liability").

(2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.

(3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent:

(a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and

(b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.

(4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.

Consideration

86. It is necessary to evaluate the evidence in terms of s 5B(1), s 5B(2), s 5C, and s 5D of the CL Act.

Section 5B(1) of the CL Act

87. On a prospective analysis, the described circumstances in which the plaintiff and Mr Guest were required to be located to do their work involved a foreseeable risk of Mr Guest slipping, and falling onto the plaintiff: Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 442, at [124]. The defendant ought to have known of this risk: s 5B(1)(a) of the CL Act. That risk was not insignificant where Mr Guest’s weight was not supported by a stable non-slippery platform or step: s 5B(1)(b) of the CL Act. In those circumstances, I consider that a reasonable position of the defendant, would have been to take precautions against the described risk, as described by Mr Dubos: s 5B(1)(c) of the CL Act.

Section 5B(2) of the CL Act

88. The required precautions involved little more than the exercise of common sense, as described in the unchallenged and uncontradicted opinions of Mr Dubos, who identified the solsenic or hydraulic fluid comprising a highly slippery mixture of oil and water: Exhibit “B”, p 18. Mr Dubos was asked to assume that on a number of occasions before the subject accident, the subject of a safe working platform had been raised with the defendant’s supervisor Mr Mathew Gleeson: Exhibit “B”, pp 18 & 19. That evidence was in broad accord with the evidence given by Mr Guest (T63.43 – T65.9) and Mr Livermore (T121; T125), which was not contradicted or shown to be glaringly improbable. Mr Dubos’ criticisms of the defendant’s working system in place at the time of the accident were that:

1. There was no sound working platform or safe foothold available to Mr Guest in the area immediately adjacent to where the plaintiff was handing tools to him: Exhibit “B”, p 19, par 18;

2. The presence of quantities of solsenic oil on the surface of the roof chock posed a slip danger and was therefore not safe: Exhibit “B”, p 19, par 19;

3. The defendant had thereby not ensured safe and suitable working procedures in circumstances where reasonable alternatives available to the defendant, if implemented, could have avoided the accident: Exhibit “B”, p 20, par 20 – par 21;

4. Such reasonable alternative procedures included:

1. Provision of a safe working platform with an anti-slip surface and guardrails to prevent slips and falls: Exhibit “B”, p 20, par 22;

2. Provision of a system that did not involve either standing upon or traversing oil affected surfaces: Exhibit “B”, p 20, par 23;

3. Provision of safe access to work places situated at a height, such as appropriate ladders or elevated work platforms with guardrails as safety features: Exhibit “B”, p 20, par 24;

4. The work area and methods in question should have been the subject of regular inspection and review, to ensure implementation of safety procedures at all times: Exhibit “B”, p 20, par 25.

89. Mr Dubos supported his opinions to the above effect by reference to applicable Australian Standards and applicable Safety Regulations: Exhibit “B”, pp 22 – 23, par 33 – par 43; pp 24 – 36, par 48 – par 119.

90. Those opinions were not challenged or contradicted by other evidence, and I therefore accept them as they were not shown to be either irrelevant or unsoundly based in fact.

91. The only significant area of difference between the factual evidence given by Mr Guest as to how he was carrying out his work, and the assumptions made by Mr Dubos, was that whereas Mr Dubos assumed that Mr Guest slipped and lost his footing whilst standing on a part of the roof chock that had been rendered slippery by the presence of solsenic oil, Mr Guest explained that he was standing on a plastic stool, the base of which was in contact with the oil affected and slippery surface or platform of the roof chock. In my view, that difference in factual scenarios is immaterial, and it does not serve to render Mr Dubos’ opinions irrelevant. This is because the interposition of a stool or steps on a slippery surface rendered the undertaking required to be performed by Mr Guest without the posited safety precautions, even more unsafe and hazardous, making a slip and resultant injury even more likely to occur: Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 442, at [124].

Section 5B(2)(a) of the CL Act

92. In circumstances where a maintenance tradesman was required to work in an elevated position above ground, where the worker’s weight would rest on a stool that was itself resting on a surface contaminated and made slippery by the presence of solsenic oil, there was a high probability that the harm described at paragraph [81] above would occur if care was not taken, in the form of the precautions described by Mr Dubois, as summarised at paragraph [88] above.

Section 5B(2)(b) of the CL Act

93. In the circumstances contemplated in paragraph [91] above, it is plain that a fall to the ground in the workplace was very likely to cause serious bodily harm in a wide variety of ways that is unnecessary to catalogue.

Section 5B(2)(c) of the CL Act

94. In the circumstances contemplated in paragraph [91] above, I consider that precautions of the kind that were outlined by Mr Dubos, as cited at paragraph [88] above, represented a small and insignificant burden on the defendant in the context of the defendant’s commercial industrial operations.

95. I am persuaded that this is so because of the unchallenged opinions of Mr Dubos, who indicated that the provision of a suitably safe non-slippery working platform with guardrails was a foreseeable safety measure that was readily implementable, and the evidence of Mr Livermore, to the effect that the defendant had a pre-accident awareness of the fact that this safety issue needed to be addressed: T125.44.

Section 5B(2)(d) of the CL Act

96. In the circumstances contemplated by paragraph [91] above, no relevant questions arise concerning the social utility of the activity that creates the risk of harm. The activity of providing maintenance services for underground mining equipment cannot reasonably justify excusing the defendant from an application of s 5B of the CL Act in an evaluation of whether or not the defendant was negligent in the described circumstances.

Section 5C of the CL Act

97. In considering the nature and the impact of the burden on the defendant to take reasonable precautions against the risk of injury of the kind under present contemplation, it is relevant to note that the risk of a worker slipping and a resultant injury arising was one which was inherent and recurring, for so long as an appropriate standing surface and protection from falling was not addressed. The risk was not one which was isolated or unforeseeable: s 5C(a) of the CL Act.

98. There was an ever-present risk of the harm suffered by Mr Guest, and by the plaintiff, for so long as the safety precautions of providing a safe standing surface and guardrails against the risk of falling were not undertaken. Those measures comprised the only reasonable and prudent means by which the work could have been safely undertaken: s 5C(b) of the CL Act.

99. The subsequent action of the defendant in providing safe working platforms, (T122.7) within 48 hours of the plaintiff’s accident does not of itself constitute evidence of a causative breach of the duty of care owed: s 5C(c) of the CL Act. However, it is plain that such platforms should have been provided well before the plaintiff’s injury because of the slippery nature of the working conditions.

Negligence established

100. In summary, the foregoing consideration leads me to conclude that the defendant was negligent in its operations at the premises, leading to the plaintiff’s injury.

101. I now turn to the consideration of the question of causation which includes the question of the scope of the defendant’s liability.

Factual causation : s 5D(1)(a) of the CL Act

102. It is plain from the manner in which the accident occurred, that but for the negligence of the defendant, the plaintiff would not have sustained the injury for which she has brought these proceedings: Strong v Woolworths Ltd t/as Big W [2012] HCA 5, (2012) 246 CLR 182; s 5D(1)(a) of the CL Act.

Scope of liability : s 5D(1)(b) of the CL Act

103. In this case, there can be no question that the scope of the defendant’s liability should extend to the plaintiff’s injury. The premises were used by the defendant for commercial purposes in which hired labour was deployed, and where a relevant duty of care was owed: s 5D(1)(b) of the CL Act.

Conclusion on causation

104. As the plaintiff has established factual causation and causation within the scope of the defendant’s liability, there are no exceptional circumstances which would indicate the defendant should not be found liable to the plaintiff in damages: s 5D(4) of the CL Act.

Issue 2 – Alleged contributory negligence

105. By paragraph 8 of its amended defence filed on 11 February 2016, the defendant claimed that the plaintiff was contributorily negligent in the following respects:

1. Failing to take any or any reasonable care for her own safety.

2. Failing to keep a proper lookout.

3. Failing to pay proper attention to her surroundings.

4. Failure to observe an obvious risk.

5. Failure to pay attention to other workers.

6. Failure to perform her duties a reasonable distance from other workers.

106. In the course of the hearing, the defendant effectively abandoned the defence of contributory negligence by making no submissions on that subject: T154.46 – T155.1. The defendant’s pleaded claim of alleged contributory negligence should therefore be dismissed.

Issue 3 – Notional negligence of the plaintiff’s employer

107. By paragraph 11 of its amended defence filed on 11 February 2016, the defendant claims the plaintiff’s employer, if sued, would have been liable in negligence for the plaintiff’s injuries, and the defendant accordingly seeks a reduction of the plaintiff’s assessed damages pursuant to s 151Z of the WC Act, according to the following pleaded particulars of negligence:

1. Failing to properly supervise the plaintiff.

2. Failing to properly train and induct the plaintiff.

3. Failing to carry out an inspection or proper inspection of the premises to ensure the plaintiff could perform her work in a safe manner.

4. Failing to ensure the plaintiff was provided with safe access in and around the premises.

5. The defendant repeats the allegations and particulars of negligence contained within paragraph 7 of the statement of claim against the plaintiff.

108. Section 151Z of the WC Act relevantly provides:

“151Z Recovery against both employer and stranger

(1) If the injury for which compensation is payable under this Act was caused under circumstances creating a liability in some person other than the worker’s employer to pay damages in respect of the injury, the following provisions have effect:

(a) the worker may take proceedings both against that person to recover damages and against any person liable to pay compensation under this Act for payment of that compensation, but is not entitled to retain both damages and compensation,

…

(2) If, in respect of an injury to a worker for which compensation is payable under this Act:

(a) the worker takes or is entitled to take proceedings independently of this Act to recover damages from a person other than the worker’s employer, and

(b) the worker also takes or is entitled to take proceedings independently of this Act to recover damages from that employer,

the following provisions have effect:

(c) the damages that may be recovered from the person by the worker in proceedings referred to in paragraph (a) are to be reduced by the amount by which the contribution which the person would (but for this Part) be entitled to recover from the employer as a joint tortfeasor or otherwise exceeds the amount of the contribution recoverable,

(d) the amount of the contribution that the person is entitled to recover from the employer as a joint tortfeasor or otherwise is to be determined as if the whole of the damages were assessed in accordance with provisions of Division 3 as to the award of damages,

…”

109. The defendant submitted that in the circumstances of this case, an apportionment of 20 per cent would be an appropriate assessment of the causative potency of the notional negligence of the plaintiff’s employer, Maxwell Recruitment Pty Ltd: MFI “4”, par 9 – par 11. The plaintiff accepted the validity and force of that submission: T164.26 – T164.36.

110. In light of that concession made on behalf of the plaintiff, and in light of my view that the liability analysis and safety criticisms provided by Mr Dubos applies equally to the defendant and to the plaintiff’s employer, I consider that the requirements of s 5B, s 5C and s 5D of the CL Act have been satisfied, for the reasons already outlined, without those findings being restated in detail for the notional purposes of s 151Z of the WC Act with regard to the liability of Maxwell Recruitment Pty Ltd.

111. Accordingly, pursuant to s 151Z of the WC Act, I find that the plaintiff’s entitlement to assessed damages under the CL Act must be discounted by 20 per cent on account of the need to reflect the effect of the notional negligence of the plaintiff’s employer.

Issue 4 – Assessment of damages

112. In the paragraphs that follow I set out my assessment of the plaintiff’s entitlement to damages.

Plaintiff’s probable life span

113. In approaching the assessment of the plaintiff's entitlement to damages, there is nothing that reasonably arises from the evidence to suggest that the usual statistical median life span would not apply to the plaintiff's circumstances. At the age of 38 years, the plaintiff has a rounded down probable median statistical life span of a remaining 50 years, and a probable remaining working life of 27 years to age 65 years. The 5 per cent multiplier for 50 years is 976.2. The 5 per cent multiplier for 27 years is 783.

Non-economic loss

114. On behalf of the plaintiff it was submitted that damages for non-economic loss pursuant to s 16 of the CL Act should be assessed at 29 per cent of a most extreme case. In contrast, the defendant submitted such damages should be assessed at 18 per cent of a most extreme case.

115. Having regard to the nature of the plaintiff’s injuries, the extent and effect of the plaintiff’s ongoing disabilities, and the detail of the medical evidence I have accepted, I consider the defendant’s submitted assessment is far too low.

114. The plaintiff has had, and still suffers from, significant ongoing back symptoms and related radiated symptoms in her right leg which are aggravated by every day activities such as prolonged standing and sitting. These problems affect her ability to work, and they adversely impact upon the amenity of her life. At the age of 38 years, there is no indication these problems will resolve in the short term.

115. The plaintiff’s disabilities and the impact they have on her in everyday life and work have already been reviewed and are the subject of findings recorded at paragraphs [62] to [74] above.

116. A consideration of those matters leads me to the conclusion that neither of the submitted assessments for s 16 damages according to a comparison with a most extreme case, as stated by the defendant (18 per cent) and on behalf of the plaintiff (29 per cent) should be accepted. In my view, the appropriate assessment should be 25 per cent. On the sliding scale by which s 16 operates, this equates to the sum of $39,500. I therefore assess the plaintiff’s damages for non-economic loss pursuant to s 16 of the CL Act at 25 per cent of a most extreme case, in the amount of $39,500.

Past economic loss

119. The plaintiff claims past economic loss over a period of 52.5 weeks between 14 October 2015 and 17 October 2016, at an average rate of $1842 per week net, which yields the calculation of $96,705. In my assessment, that calculation is oversimplistic and does not take into account some required discounting factors.

120. In contrast, the defendant submitted that there should be no allowance for past economic loss: MFI “3”. The defendant also submitted that as the plaintiff was certified as being fit to work in 2015 although she experienced a downturn in her income in 2014 to 2015, she nevertheless continued to obtain jobs in that period, and she was capable of doing “a great deal more than she says she can”: T162.12 – T162.24. The difficulty with accepting the latter proposition is that the cited suggestion was not put to the plaintiff in cross-examination: Browne v Dunn (1894) 6 R 67. For the reasons that follow, I do not accept the defendant’s submissions regarding the plaintiff’s claim for past economic loss.

121. Before the accident, the plaintiff was obviously keen to exercise her earning capacity at a high level. She had an imperative to do so because she was sending money to support part of her family who were resident overseas. She was fit and healthy, and for the immediately foreseeable future, she had no pre-accident impediments to exercising her earning capacity without physical restrictions. In conjunction with her husband, she was prepared to seek out and pursue highly paid work involving relatively uncongenial hours at distant locations in return for the financial rewards that came with such employment, and which were typified by her level of earnings immediately before the accident in the claimed sum of $1842 per week net. In round figures, the scope was for her to earn sums in the range $1200 to $2000 per week net, depending upon the job, the hours, and the location of the work. That work, and those earnings, were interrupted by the ongoing effects of the accident.

122. Offset against those considerations was the fact that there were likely to be gaps in the continuity of such high paid employment, there were potential adverse vicissitudes to be considered, including the continued availability of work in industries dependent upon mining activities, and the fact that the plaintiff’s husband was subsequently unfortunately injured in a motorcycle accident which occurred in March 2012, which gave rise to resultant care requirements and obligations towards him, as well as labour market considerations, including fluctuations in the availability of work generally.

123. Counter-balanced against those discounting considerations is the fact that the plaintiff had been able to engage with employers and persuade them to take her on in situations where she had overstated her skills and experience, and where she was able to quickly grasp and carry out what was required in those jobs, but for her injury.

124. In surveying those matters, the standout factors are that the plaintiff now has difficulty with activities requiring prolonged sitting, standing and bending to pick up items. In addition, with her back problems, she is ill-advised to undertake menial work that requires repeated lifting, bending and carrying significant weights.

125. In those circumstances, I am persuaded that the plaintiff’s earning capacity has been significantly impaired, and that on the balance of probabilities, that such impairment is likely to cause the plaintiff to suffer economic loss: Graham v Baker [1961] HCA 48; (1961) 106 CLR 340; Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1; (1995) 127 ALR 180; Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638.

126. That said, the discounting factors, particularly the difficulty of securing continuous and longterm highly paid employment indicate that a straight calculation of a year’s loss of income as claimed by the plaintiff, should be discounted by an appropriate factor, which I assess as being 25 per cent, to reflect the possibility that the plaintiff may not have secured such high paid work in the period that was submitted. I therefore assess the plaintiff’s damages for past economic loss in the amount of $72,528.

Past loss of superannuation

127. On behalf of the plaintiff it was submitted that past superannuation should be assessed on the conventional basis of 11 per cent of $72,528. I accept that submission and I therefore assess the plaintiff's damages for past loss of superannuation in the amount of $7978.

Future economic loss

128. The plaintiff claims future economic loss in the submitted assessment of approximately 50 per cent of her net earnings, namely, $900 per week net, projected at 5 per cent over 10 years (x 412.9) and discounted by 15 per cent for possible adverse vicissitudes, namely an amount of $315,868.

129. In my view, on the evidence of this case, that approach is overlysimplistic, and does not adequately take into account that during gaps in her employment, the plaintiff has sought to pursue more modestly paid work in supermarkets and the like: T23.25 – T23.40.

130. In contrast to the plaintiff’s submitted calculation, the defendant’s primary submission on future loss of earning capacity was that no such damages should be awarded: MFI “3”. In the alternative, the defendant submitted that any residual work incapacity should be compensated by “a fairly modest buffer”: T162.33. The defendant also submitted that the likelihood was that after these proceedings conclude, the likelihood is that the plaintiff will obtain work again, and that her pattern of employment, followed by periods of unemployment, would continue, similar to her pre-accident circumstances: MFI “4”, par 21. The difficulty in the path of accepting the defendant’s latter submission is that it was not directly put to the plaintiff in cross-examination for her comment: Browne v Dunn (1894) 6 R 67.

131. I consider that the plaintiff’s circumstances indicate that the most appropriate means by which to compensate her in respect of her ongoing impairment of her earning capacity is to allow a significant buffer rather than a projected weekly amount: Penrith City Council v Parks [2004] NSWCA 201, at [5]; State of NSW v Moss [2000] NSWCA 133, (2000) 54 NSWLR 536, at [72]; Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13, at [7], [25] – [27].

132. In my view, the matters identified at paragraphs [124] – [125] above represent a significant ongoing impairment of the plaintiff’s earning capacity. This means that the modest buffer proposed by the defendant would result in unfair undercompensation. At age 38 years, the plaintiff still has a relatively long working life ahead of her, of the order of 25 years, if not more, and her identified disabilities at paragraphs [62] to [74], are most probably going to have an ongoing deleterious impact upon her ability to earn an income. In those circumstances, I therefore assess the plaintiff’s damages for future economic loss in the buffer amount of $180,000.

Future loss of superannuation

133. I assess the loss of the employer funded superannuation component on future economic loss of $180,000 at 9 per cent of that sum. I therefore assess the plaintiff’s damages for the loss of future employer funded superannuation in the amount of $16,200.

Past domestic assistance

134. The plaintiff claims the value of past gratuitous domestic assistance over a period of 26 weeks, for 6 hours per week, at $28 per hour in the total amount of $4368. In contrast, the defendant submitted that no allowance should be made for this head of damage.

135. The evidence in support of the plaintiff’s claim has been reviewed and summarised at paragraphs [70] to [73] above. The medical evidence on this topic is non-contributory: Sampco Pty Ltd v Wurth [2015] NSWCA 117.

136. In my view, the evidence in this case did not satisfy the statutory threshold of establishing an injury-based need for domestic assistance of 6 hours per week for 6 months, as required by s 15 of the CL Act. I therefore decline to award any damages for past gratuitous domestic assistance.

Future domestic assistance

137. The plaintiff claims a buffer amount of $10,000 for future domestic assistance on a paid commercial basis. In contrast, the defendant submitted that no allowance should be made for this head of damage.

138. For the same reasons outlined at paragraph [135] above, I am not satisfied that the plaintiff has established an accident-related need for future domestic assistance, whether unpaid according to the requirements of s 15 of the CL Act, or on the basis of assistance provided on a commercial basis.

139. I therefore decline to award any damages for future domestic assistance.

Future treatment

140. The plaintiff made a claim for future treatment expenses in the amount of $6350. The basis of that submission was a claim for hydrotherapy for a period of 12 weeks amounting to $1200 as suggested by Dr Endrey-Walder; CT guided injections three times per year at $350 per annum over 3 years ($3150) and an allowance of pharmaceutical expenses for analgesia, namely $2000, totalling $6350: MFI “2”, par 3. In contrast, the defendant conceded the plaintiff should receive a buffer amount of $4500: MFI “3”. On the evidence, I consider that the defendant’s submission in that regard is a reasonable discounted approach that takes imponderable contingencies and vicissitudes into account. I therefore assess the plaintiff’s damages for future treatment expenses in the sum of $4500.

Out-of-pocket expenses

141. The defendant was prepared to concede an amount of $3000: MFI “3”. Ultimately, those expenses were agreed in the sum of $2,032.70: MFI “2”, par 2; T153.11. I therefore assess the plaintiff‘s damages for past out-of-pocket expenses in the amount of $2032.70.

Summary of damages assessment

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

(a) Non economic loss	$39,500
(b) Past economic loss	$72,528
(c) Past loss of superannuation	$7,978
(d) Future economic loss	$180,000
(e) Future loss of superannuation	$16,200
(f) Past domestic assistance	$Nil
(g) Future domestic assistance	$Nil
(h) Future treatment	$4,500
(i) Out-of-pocket expenses	$2,032.70
Total	$322,738.70

Issue 5 – Limitation defence

143. The defendant claims that the plaintiff’s action is statute barred. That claim needs to be evaluated in light of the operation of s 50C(1)(a) and s 50D of the Limitation Act 1969. Section 50C(1) of that Act provides:

“50C Limitation period for personal injury actions

(1) An action on a cause of action to which this Division applies is not maintainable if brought after the expiration of a limitation period of whichever of the following periods is the first to expire:

(a) the "3 year post discoverability limitation period" , which is the period of 3 years running from and including the date on which the cause of action is discoverable by the plaintiff,

(b) the "12 year long-stop limitation period" , which is the period of 12 years running from the time of the act or omission alleged to have resulted in the injury or death with which the claim is concerned.

Note : The 12 year long-stop limitation period can be extended by a court under Division 4 of Part 3.

…”

144. Section 50D of that Act relevantly provides:

“50D Date cause of action is discoverable

(1) For the purposes of this Division, a cause of action is "discoverable" by a person on the first date that the person knows or ought to know of each of the following facts:

(a) the fact that the injury or death concerned has occurred,

(b) the fact that the injury or death was caused by the fault of the defendant,

(c) in the case of injury, the fact that the injury was sufficiently serious to justify the bringing of an action on the cause of action.

(2) A person "ought to know" of a fact at a particular time if the fact would have been ascertained by the person had the person taken all reasonable steps before that time to ascertain the fact.

(3) In determining what a person knows or ought to have known, a court may have regard to the conduct and statements, oral or in writing, of the person.

…”

145. These proceedings were instituted by the plaintiff on 16 November 2014, which is 114 days, or a little over 16 weeks, after the accident occurred. The limitation question was therefore a live issue in the proceedings: T2.12; T157.19 – T157.29; T160.15; T161.17 – T161.49; MFI “4”, par 16 – par 19.

146. In order to overcome the defendant’s claimed defence of a limitation bar, the plaintiff must satisfy the court that time did not relevantly run for the purposes of the three-year post-discovery period until a later date, as contemplated by s 50C(1)(a) of the Limitation Act 1969.

147. In my view, on the evidence adduced, the plaintiff has satisfied that requirement because, until the advent of the opinion of Dr Gomes in September 2014, she was not aware of the connection between the subject accident and her complaints of back and related problems. I accept that until that time, she had not made that association. I reject the defendant’s submission that such a position was implausible. Instead, I consider that the plaintiff gave truthful evidence in that regard. I find that until that connection was made by Dr Gomes, the plaintiff had not appreciated that the subject accident had given rise to an injury that was sufficiently serious to justify the institution of the present proceedings at an earlier point in time: s 50D(1) of the Limitation Act 1969.

148. In that regard, the following citation from State of NSW v Gillett [2012] NSWCA 83, at [131], citing Baker-Morrison v State of NSW [2009] NSWCA 35; (2009) 74 NSWLR 454, at [44] aptly applies to the present case:

“… For a person to be in a situation where he or she knows or ought to know that an injury was sufficiently serious to justify the bringing of an action on the cause of action, they would have to know (or be in a position where they ought to know) that they have sufficient prospects of recovering enough damages for it to be worthwhile litigating. That would require, at the least, knowledge (whether derived from the plaintiff's own knowledge, from friends or acquaintances, or from professional advice) that the injury in question is one for which the law would hold the defendant liable in damages, and that the damages that could be recovered are large enough to be worth the time and trouble of suing. Thus, knowledge of actionability is necessary before s 50D(1)(c) is satisfied. And, because it is involved in there being "fault", actionability is likewise one of the "key factors necessary to establish liability" that must be known before s 50D(1)(b) is satisfied.”

149. In my view, on the evidence adduced, the plaintiff has satisfied that test.

150. I therefore do not uphold the defendant’s claimed limitation defence as the plaintiff has satisfactorily shown she was unaware of the actionability of her claim during the 3 year period that followed her injury. In those circumstances, the plaintiff should not be precluded from pursuing her case as the defendant has not demonstrated the existence of material or significant prejudice which would contraindicate that conclusion: Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541, at p 555.

Disposition

151. The plaintiff has secured a finding that the defendant was negligent. The defendant has secured a finding that the plaintiff’s injuries were in part due to the notional negligence of the plaintiff’s employer, to the extent of an agreed assessment of 20 per cent. When that finding of the employer’s notional negligence finding is applied to the assessed damages of $322,738.70, this results in the plaintiff’s entitlement to a judgment in her favour in the amount of $258,190.96.

Costs

152. The plaintiff has succeeded in the proceedings. Unless a party is able to show a basis for some other order, for which I grant liberty to apply, I consider the appropriate order to be that the defendant is to pay the plaintiff’s costs of the proceedings on the ordinary basis.

Orders

153. I make the following orders:

1. Verdict for the plaintiff in the amount of $322,738.70;

2. Pursuant to s 151Z of the Workers Compensation Act 1987, the notional negligence of the plaintiff's employer is assessed at 20 per cent;

3. After applying the findings made pursuant to s 151Z of the Workers Compensation Act 1987, judgment for the plaintiff against the defendant in the sum of $258,190.96;

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

5. The exhibits may be returned;

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

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Decision last updated: 03 February 2017