Macari v Snack Brands Foods Pty Ltd

[2024] NSWSC 139

Supreme Court

New South Wales

Medium Neutral Citation:

Macari v Snack Brands Foods Pty Ltd [2024] NSWSC 139

Hearing dates:

5 and 7 December 2023
6 February 2024

Date of orders:

22 February 2024

Decision date:

22 February 2024

Jurisdiction:

Common Law

Before:

Cavanagh J

Decision:

(1)   Judgment for the defendant.

(2)   The plaintiff is to pay the defendant’s costs.

(3)   Grant liberty to apply should either party seek a variation of that costs order.

Catchwords:

NEGLIGENCE — Occupiers’ liability – where plaintiff slipped on stairs – whether reasonable precautions could have been taken to prevent slippage

NEGLIGENCE — Damages — Economic loss — Earning capacity – where defendant claimed plaintiff had residual earning capacity – whether defendant discharged onus to demonstrate such capacity

Legislation Cited:

Civil Liability Act 2002 (NSW), ss 5F, 15

Workers Compensation Act 1987 (NSW), s 151Z

Cases Cited:

Roads and Traffic Authority of New South Wales v Dederer (2007) 234 CLR 330

Wilkinson v Law Courts Ltd [2001] NSWCA 196

Stannus v Graham (1994) Aust Torts Reports 81-293

Rabay v Bristow [2005] NSWCA 199

Category:

Principal judgment

Parties:

Anthony Macari (Plaintiff)
Snack Brands Foods Pty Ltd (Defendant)

Representation:

Counsel:
G Bateman (Plaintiff)
N Polin SC (Defendant)

Solicitors:
Robert Bryden Lawyers (Plaintiff)
McCabes Lawyers (Defendant)

File Number(s):

2021/00146445

Publication restriction:

None

JUDGMENT

1. The plaintiff claims damages for personal injury.

2. The plaintiff sustained injuries at his workplace, being the premises of the defendant, on 25 June 2018. At the time of the accident, he was employed by a labour hire company but had been placed at the defendant’s premises where he was undertaking process work. He was working under the control of the defendant at its premises.

3. At the time of the accident the defendant was engaged in the business of producing potato chips from its factory at 30-32 Bessemer Street, Blacktown. The factory operated 24 hours a day with shifts 12 hours in length. The plaintiff alleges that he sustained injury when he slipped down some metal steps in the potato preparation area, being an area where he was required to work on a daily basis. He says that he slipped on the steps because of the presence of a slippery substance. He says that his accident was caused by the negligence of the defendant as the occupier of the premises and the party for whom he was working at the time (although not as a direct employee).

4. As set out in the amended statement of claim filed on 16 January 2023, he says that the steps where he fell:

1. consisted of a landing and three steps;

2. featured two separate hand rails on each side, but only extended down so far as the first step from the top;

3. were situated in close proximity to certain food processing equipment, including a potato hopper; and

4. were constantly wet due to starchy water splashing out of the potato hopper.

5. He pleads that at the time of the accident, the potato hopper was operational, contained potatoes boiling in starchy water and was operating without any lid or cover to prevent starchy water from splashing out.

6. He pleads that the steps were contaminated with a slippery substance, namely starchy water which had splashed out of the potato hopper. He then pleads that, as he was descending the steps, he was holding onto both handrails until he reached the middle step, at which point the hand rails did not extend any further and he lost his footing and fell.

7. He pleads that “there existed a ‘foreseeable’ and ‘not insignificant’ risk of harm from losing balance on the staircase and falling, whether by slip (including on starchy water), misstep, inadvertence or otherwise, due to the absence of adequate hand rails.”

8. He then identifies a number of particulars of breach including:

1. failing to clean or remove the contaminate from the staircase;

2. failing to routinely inspect the staircase;

3. failing to ensure a safe system of work;

4. failing to warn the plaintiff that the staircase was very likely to be contaminated, including with starchy water, which had splashed out of the potato hopper;

5. failing to prevent starchy water from splashing onto the staircase;

6. failing to direct its employees and agents to cover the potato hopper; and

7. failing to instal handrails which extended down the entire length of the staircase.

9. In its defence, the defendant admits that an accident occurred on 25 June 2018 but otherwise generally does not admit or denies most of the plaintiff’s allegations. The defendant also pleads that the risk was an obvious risk within the meaning of s 5F of the Civil Liability Act 2002 (NSW) (“CLA”) and that the plaintiff was guilty of contributory negligence.

10. Further, the defendant relies on s 151Z(2) of the Workers Compensation Act 1987 (NSW) (“WCA”) on the basis that the plaintiff’s employer, Workforce International Group Pty Ltd, was also negligent such that any liability imposed upon the defendant should be reduced on account of the employer’s notional liability.

11. In accordance with earlier case management orders, the parties served and relied on evidentiary statements. I granted leave to the plaintiff to rely on a supplementary statement served out of time. I also granted leave to the defendant to rely on further responsive statements.

12. The plaintiff relied on five evidentiary statements dated 21, 22, 23 November 2021, 10 January 2022, and 22 November 2023.

13. The defendant relied on four witnesses who provided evidentiary statements as follows:

1. Evidentiary statement of Kul Bogati dated 19 May 2022;

2. Further evidentiary statement of Kul Bogati dated 19 April 2023;

3. Evidentiary statement of Andrew McKellar dated 19 May 2022;

4. Further evidentiary statement of Andrew McKellar dated 19 April 2023;

5. Evidentiary statement of Luke Phelps dated 6 June 2022; and

6. Evidentiary statement of Peter Nedelkovski dated 19 May 2022.

14. The parties relied on expert evidence on liability. The plaintiff relied on two reports of Denis Cauduro dated 11 October 2022 and 14 March 2023. The defendant relied on three reports of Dr John Cooke dated 29 June 2022, 23 January 2023, and 17 April 2023. The experts met in conclave and prepared a joint report dated 6 June 2023. They also gave oral evidence, although the scope of the examination of the experts orally was somewhat limited.

How did the accident occur?

15. This is a case which turns on the facts. The legal principles which must be applied are not in dispute. The principal issue which arises is how the accident happened.

16. There is no dispute that the plaintiff fell on the steps within the defendant’s premises and sustained injury as a result of his fall. The accident was reported immediately and the plaintiff completed an incident report. I include a photo of the steps taken on the day of the accident:

17. The defendant completed its own contemporaneous report as to the circumstances of the accident.

18. At least as pleaded, the plaintiff’s case was that he slipped on starchy water which was on the steps and which had emanated from the adjacent potato hopper. The fact that the handrails did not extend to the bottom step was said to be causally significant.

19. In his first evidentiary statement dated 1 January 2022, the plaintiff did not describe how he fell. In his second evidentiary statement dated 22 November 2023 he described the mechanics of his fall as follows:

“[9] As I descended the stairs, I was holding onto both handrails until I was nearly at the bottom of the steps, at which point the handrails did not extend any further. At that point, my right foot slipped on the wet and contaminated surface and as a result, I fell. I tried to brace myself with my left foot, but it slipped too. I had both hands on the handrails either side as I descended.

[10] I believe I slipped on the bottom step just as my left hand came off the end of the handrails. My right arm extended backwards, causing the injury. My back hit the edge of one of the stair treads hard.

[11] I noticed after the fall that the steps were contaminated with starchy water which had splashed out of the potato hopper. I also noticed that the catching area beneath the potato hopper was clogged with potatoes and water, creating a ‘goop’.

[12] The whole area, including the staircase, was very wet and slippery. As I lay on the ground, the back of my shirt and pants and legs were soaked by potato muck.”

20. He thus says that he slipped because the surface of the step was wet and contaminated. He identifies it as being contaminated with starchy water which had splashed out of the potato hopper. He says that the whole area was very wet and slippery.

21. In final submissions I asked Mr Bateman how he maintained the accident occurred. He said that he relied on the statement provided by the plaintiff at the time of his accident (Exhibit C) as well as the photograph marked by the plaintiff showing potato debris (Exhibit B).

22. His contemporaneous version (Exhibit C) is as follows:

“On Monday 25/06/2018, I started my work shift with Snack Brands at 15:00. I was rostered to work on the UPC line as a picker. The line wasn’t running at the time, therefore I was asked to work on the KF’s line as a picker along with a coworker that was already working there. After one hour and half [sic], I was asked to change location and go to the KF’s potatoe [sic] cutting and pairing station. I took two medium size gloves with me, but I had forgotten a third glove to cover my steel mesh glove. I climbed up to the cutting station, but the glove box was empty. So, I went down the other set of stairs closest to another glove box to obtain my third glove. As I was walking down the steps, although I was holding on to both railings, I slipped and fell on the set of stairs as if something slippery was on the steps. I fell back on my right arm and shoulder.”

23. In his contemporaneous statement the plaintiff thus attributes his fall to the step being slippery because of the presence of a slippery substance on it. He says that at the time that he slipped he was holding on to both handrails, thereby negating the inference from the pleadings that he was unable to do so.

24. The plaintiff’s oral evidence led to further uncertainty as to how the accident occurred.

25. In further evidence in chief the plaintiff stated that he was unable to say whether the water from the potato hopper was boiling water, despite the allegation that it was. This evidence must be viewed as responsive to the witness statements served by the defendant during the course of the proceedings. The plaintiff also identified white specs shown in the photograph of the steps taken by the defendant after the accident (Exhibit B) as being potato debris.

26. During cross-examination, the plaintiff was asked to explain how he fell. He said that he was proceeding down the steps holding onto both handrails. He slid his hands down the handrails as he moved to the lower step. After placing his right foot on the second step, he went to place his left foot on the bottom step when his right foot slipped. That is, he did not fall because his left foot slipped on the lower step. He says that he fell because his right foot slipped on the upper step.

27. He was challenged as to how that could have occurred bearing in mind that he was moving forwards placing his weight on his left foot on the lower step.

28. It was put to the plaintiff that the steps were not slippery. He said he was surprised about that, that is that they were slippery. He agreed that he had worked there for three months going up and down the steps and found they were not slippery. He agreed that they were designed to be nonslip when they were wet. He also agreed that he previously found them not to be slippery when they were wet.

29. In further cross-examination he was taken to the photo. It was put to him that he did not know that the white dots were potato debris. He agreed with that but said that they looked like potato debris. In the end he agreed he was just guessing that they were potato debris.

30. It was put to the plaintiff that after the accident he spoke to Mr Bogati and then Mr McKellar. He agreed that he did not tell Mr McKellar that there was potato debris in the area. When put to him that the incident report makes no reference to potato debris he responded, “[w]ell, you guys work for Snack Brands, that’s why”.

31. I took him to mean that the absence of any reference to potato debris was deliberate (by the defendant). This rather ignores the fact that he did not suggest at the time that he had slipped on potato debris. Nor did he assert that in his pleading.

32. The plaintiff relied on an expert report from Denis Cauduro, a safety management expert. Mr Cauduro summarised his opinion as follows:

“The Plaintiff suffered a slip and fall injury, when he attempted to descend a set of stairs, owned, controlled and maintained by the Defendant. The stairs were contaminated with potato starch from a potato hopper which was allowed to boil over and spill onto the stairs. The handrails of the stairs did not extend the full length of the stairs in accordance with Australian Standards or the Building Code of Australia. The Defendant knew the stairs would become contaminated from the boiling potato water and failed to eliminate or control this hazard.”

33. Mr Cauduro assumed that the cause of the plaintiff’s fall was that the handrails did not extend the full length of the stairs and that the steps were contaminated with boiling potato water.

34. The defendant relied on expert reports from Dr John Cooke, an architect. The defendant provided to Dr Cooke a sample (new) of the type of material used to form the steps. Dr Cooke carried out testing and opined that the material complied with the relevant standard in terms of slipperiness. That is, it was non-slip. The actual steps on which the plaintiff fell were not available to be tested as they were replaced at some point after the accident.

35. Whilst I accept that, when constructed, the surface of the steps was nonslip and complied with all relevant standards, it does not follow that there must be a finding that at the time of the accident the surface was of the same precise texture. It would be necessary to consider all the evidence as to the condition of the steps at the time of the accident in order to consider whether such a finding is available.

36. Dr Cooke also opined that the plaintiff fell because of an overstep, that is a reported failure to use the handrails contributed to the accident. Of course, matters of fact are not for the expert to determine, albeit that in some circumstances experts might be required to analyse the facts as established by the evidence to assist the court in forming a view as to how the accident occurred. Having said that Mr Polin stated that, contrary to his own expert report, he was not pursuing any positive case that the accident was caused by an overstep on the part of the plaintiff. His case was that the defendant did not know how the accident occurred but, on any view of the facts, the defendant was not negligent.

37. I found the expert evidence to be of little assistance. That is not to be critical of the experts or their expertise but the value of an expert opinion tends to fall away when the assumptions on which the expert relies are not made out. Further, coefficient of friction testing of a sample surface when new cannot be used to identify the coefficient of friction of the surface of the steps at the time that the accident happened (unless there is other evidence to support a finding that the surface would not have changed between the date of installation and the date of the accident).

38. The defendant signed documents which refer to the possibility of wear and tear and the steps were replaced subsequent to the accident but the mere fact of replacement subsequent to the accident does not lead to an inference that the steps were defective or slippery at the time of the accident.

39. The defendant adduced evidence from four of its employees. Mr McKellar prepared three statements. He was also the author of the defendant’s incident report although he said it was prepared by three people. He called the plaintiff into his office with the team leader and he arranged for medical assistance. He spoke to the plaintiff as to how the accident occurred and then carried out an inspection of the area and completed the incident report.

40. Mr Bogati had told him that the plaintiff was not holding onto the handrail as he descended the stairs and only reached out to hold them as he fell. In his evidentiary statement he says that when he inspected the potato processing area he found the landing and staircase to be dry and free from the debris. The photo (Exhibit B, excluding the plaintiff’s annotations) was attached to his statement to support that assertion. He suggested that the surface of the steps was a rough gritty surface. He used the stairs on a regular basis and never found them to be slippery when wet or dry.

41. He attached to his statement the safety incident investigation report. He accepted that it was possible that some water may splash onto the staircase from the potato hopper although he never found it to be a large amount of water. He says at this stage of the process the potatoes were not cooked and any water which would splash out would be still fresh.

42. In cross-examination Mr McKellar was challenged as to his statement that the steps were dry in circumstances in which he had said in the incident report they were wet. Further, he was taken to sections of the incident report particularly where he mentioned wear and tear as a cause of the accident and where he had identified “yearly inspections to determine wear and replace as necessary” as something that could be done.

43. Mr McKellar seemed unable to explain the differences between his evidentiary statements and what he had said in the contemporaneous incident report. He was unable to explain why he said his evidentiary statements that the steps were dry when contemporaneous material suggested they were wet when the accident occurred.

44. Having said that, Mr McKellar did not dispute that the steps could become wet from water from the adjacent potato hopper. However, he maintained that the water would be cold and not starchy. Mr McKellar also seemed unable to explain his reference to yearly inspections for wear and the need for guarding over the potato hopper in the incident report.

45. I formed the view that Mr McKellar could not really understand why the accident happened and, based on what he was told by Mr Bogati, he attributed responsibility to the plaintiff, albeit he suggested ways to improve safety in the incident report.

46. Mr Bogati was a process operator in the potato preparation area at the time of the accident. In his statement of 11 May 2022 he describes the staircase consistently with the photographs. He says that he observed the plaintiff walking quickly along the landing towards the staircase. He appeared to be in a hurry.

47. He did not see the plaintiff fall but saw him at the bottom of the staircase. The plaintiff said to him “I just fell down the stairs”. He said that his recollection of the incident was consistent with that which is recorded in the investigation report. He says he never found the landing or the stairs slippery. He walked up and down them on many occasions each day. He also said that it was possible for water to splash out from the hopper.

48. Mr Bogati was cross-examined as to what occurred at the time. He said he was on the floor rather than in the area of the steps. He saw the plaintiff walking along the landing but accepted that his view was obscured. He disagreed with the suggestion that he had put forward a version to make it fit with Mr McKellar’s version.

49. Mr Nedelkovski was working in the area as a team leader. He gave evidence as to the scene, the operation of the potato hopper and the fact that every shift the workers in the area needed to go down the stairs a number of times. He said the stairs were not slippery when wet or dry. He had not witnessed anyone slip and fall on the stairs at any time. He said that the stairs were changed as part of a major renovation and refurbishment at the defendant’s premises in July 2019.

33. Mr Phelps was an engineering manager employed by the defendant. He prepared statements dated 1 June 2022 and 5 December 2023. His evidence related to the structure of the stairs and the type of material used. He annexed to his statement test reports for the material used on the stairs dated 14 April 2015 and 23 November 2010. He was cross-examined briefly about the type of material used on the stairs but there was no change to his evidence.

34. None of the defendant’s witnesses actually witnessed the plaintiff fall, albeit Mr Bogati saw him walking towards the stairs and said that he seemed to be in a hurry.

35. Leaving aside any controversy as to the precise mechanics of the plaintiff’s fall, the effect of the defendant’s evidence is that:

1. There is no earlier report or evidence of anyone else falling or slipping on the steps at any time prior to the accident;

2. The steps were constructed of appropriate nonslip material and, at least when installed, were nonslip in the sense of satisfying regulatory requirements;

3. All workers in the potato processing production area would walk up and down those steps a number of times each day;

4. There was no prior complaint about the condition of the steps;

5. Having regard to the incident report completed by Mr McKellar, it is possible that the steps were showing some wear at the time of the accident but there is no evidence that any person using the steps found the steps slippery because of any wear;

6. The steps would become wet from water splashed out of the potato hopper but they were designed for use in wet and dry conditions; and

7. The water which would splash onto the steps was not hot water or boiling water. Nor was it starchy water.

53. Consistently with the defendant’s evidence, the plaintiff also said that he had not found the steps to be slippery at any time when he used the steps prior to the accident.

54. There is thus no evidence that the steps were defective or inherently unsafe, or had become unsafe, through lack of maintenance at the time of the accident.

55. Similarly, the evidence does not support any contention that there was boiling or starchy water on the steps at the time. There is no evidence that the presence of cold water on the steps (which was likely) rendered the steps slippery and unsafe to use.

56. Nor am I able to accept that the steps were rendered unsafe at the time of the accident because of potato debris that had splashed out of the potato hopper onto the steps.

57. The plaintiff pointed to white specs on Exhibit B as being potato debris but the defendant’s witnesses were not taken to this photo and asked to agree. Nor was there any evidence as to how this might have occurred. The plaintiff said that he was just guessing.

58. There is no evidence of potato debris on the steps ever causing any earlier problem or being such that preventative measures should have been taken. In the incident report, Mr McKellar referred to placing a guard around the potato hopper to stop the water splashing but there is nothing in the incident report about potato debris.

59. None of this means that the plaintiff did not fall. He did. Indeed, he may have slipped but a person may slip on steps for a number of reasons.

60. During final submissions I raised with Mr Bateman whether he was pursuing a case that the fact that the handrails did not extend all the way to the bottom steps or the ground caused the accident. He submitted that, on one view of the evidence, the plaintiff’s arm was behind him when he fell such that the position at which the handrails ended may be causally significant. However, in the end, he accepted that he could not establish that the position at which the handrails ended was causally relevant. Further, the plaintiff said that he was holding onto the handrails immediately before he fell.

61. His case could only be that he slipped because of something that caused him to slip. He describes it as a contaminant in his statement. That may be right, but he bears the onus of establishing what that was.

62. His evidence was inconsistent with his pleading and the concessions he made when giving evidence leave no room for a finding that the cold water which had likely splashed onto the steps made them excessively slippery. In his contemporaneous report he said something slippery made him fall but he did not mention potato debris. Further, the change in his evidence from boiling to cold water leaves a question as to how and why potato debris would be on the steps. Neither Mr Bogati nor Mr McKellar refer to the presence of potato debris

63. In all of these circumstances, it seems likely that the plaintiff may have fallen due a combination or coincidence of circumstances. His description of the mechanics of the fall raises the possibility that his right foot was on the edge of the upper step. There may have been something on the step (that is some form of contaminant) but the plaintiff has not established what it was. He may have been in a hurry, although he denies this. I cannot be satisfied that the presence of the cold water on the steps made them slippery and unsafe.

64. Giving the plaintiff the benefit of the doubt and assuming that he was not the author of his own misfortune only leads to a finding that the plaintiff slipped on the steps for reasons which have not been established. There may be a number of possibilities but neither the positioning of the hand rail nor the presence of starchy or boiling starchy water on the steps caused his accident. In other words, he has not established that which he pleaded as the cause of his accident.

65. I am satisfied that he fell because his foot slipped out from under him rather than that he fell because he missed the step completely but I am unable to be satisfied as to why his foot slipped out from under him.

Negligence

66. The CLA applies. Whilst there was little attention to the risk of harm during the proceedings, I accept that the risk of harm was the risk of the plaintiff slipping on the steps. In the circumstances of the situation of the steps and their use, such a risk was reasonably foreseeable. The risk was not insignificant within the meaning of s 5B(1)(b) of the CLA.

67. The defendant owed a duty of care to the plaintiff to take reasonable precautions to prevent the accident. All duties may be discharged by the exercise of reasonable care (Roads and Traffic Authority of New South Wales v Dederer (2007) 234 CLR 330 at 345 (Gummow J)).

68. Although the standard of care imposed on a defendant which engages workers to work in its premises may be high, the defendant is not the guarantor of the plaintiff’s safety. Accidents are often caused by a combination of unfortunate and coincidental circumstances. The fact that an accident or incident occurred at the work place is not generally a sufficient basis to attribute responsibility to a defendant.

69. The fact that the plaintiff slipped on steps in the defendant’s premises does not mean that the defendant was negligent.

70. As has often been said, stairs are inherently but obviously dangerous (Wilkinson v Law Courts Ltd [2001] NSWCA 196 at [32] (“Wilkinson”); Stannus v Graham (1994) Aust Torts Reports 81-293 at 61,566 (Handley JA)).

71. In Wilkinson at [33] Heydon JA observed:

“The human imagination can conjure up many circumstances in which a user of the steps might suffer injury. A particular measure directed to the avoidance of a particular type of injury might in itself be relatively inexpensive and relatively easy to implement. But if measures are to be taken to reduce all the dangers which can be imagined, very heavy burdens would be imposed: yet the form of injury from which the plaintiff suffered does not appear any more likely than most of the other imaginable forms of injury. This highlights the difficulty which confronted the plaintiff in isolating the three matters on which he relied to establish a breach of duty.”

72. In my view the plaintiff faces two insurmountable difficulties, being:

1. He has not established what caused him to fall; and

2. He has not established that there were any reasonable precautions which the defendant should have taken which would have prevented him slipping.

73. Indeed, the evidence is overwhelmingly to the effect that the steps were used regularly throughout every day and had not been found to be slippery, in the sense of being unsafe, on earlier occasions. There being no earlier accidents or reports or complaints about the steps the defendant was not on notice that it needed to do something to the steps to ensure that they were safe.

74. The defendant fell on steps at his workplace but not all accidents at the workplace involve negligence on the part of the occupier. The plaintiff has not established that the defendant was negligent.

75. There must be a judgment for the defendant.

76. It is not possible to know what result might have ensued in terms of contributory negligence and the employer’s liability on different factual findings. However, it is difficult to anticipate how there could have been a notional finding of negligence against the employer on any factual finding that might have been open. The same might be said about contributory negligence.

Damages

77. I will assess damages.

78. The plaintiff is currently 62. At the time of the accident, he was 57. He says that, as a result of the accident, he sustained a right shoulder injury requiring total replacement surgery as well as injuries to his right arm, neck and back and psychological injuries.

79. He underwent a total right shoulder replacement in 2019. He says that, despite many attempts to obtain employment since that time, he has been unable to return to work.

80. He claims economic loss on the basis that he is unable to work and will be unable to work into the future.

81. On the day following the accident he sought treatment from his general practitioner. He underwent an MRI scan which showed a significant tear of the rotator cuff. He underwent surgery and remained in a sling for six weeks. He had extensive physiotherapy. He ultimately came to undergo shoulder joint replacement in April 2019.

82. In February 2020 he underwent a three-level anterior cervical disc excision and fusion. He says that he continued to experience right upper limb pain following that operation. He again had extensive physiotherapy.

83. Indeed, the treatment he has received seems very extensive particularly having regard to the opinions of the medico legal experts on whom the parties rely.

84. Subsequent to 2020 he has tried to work on a number of occasions. He has worked 8 to 12 hours per week on occasions. He has been in receipt of workers compensation.

85. He was examined by Dr John Bentivoglio on 25 January 2021 at the request of his solicitors. Dr Bentivoglio accepted the relationship between the accident, his injuries and his treatment.

86. The defendant arranged for the plaintiff to be examined by Dr Frank Machart, an orthopaedic surgeon, on 15 October 2021. At that time the plaintiff continued to complain of neck pain as well as pain through the right shoulder down to his hand. He suffered from weakness and pins and needles in the right hand. He took pain medication.

87. Dr Machart was concerned that Dr Bentivoglio did not have access to the evidence of a pre-existing rotator cuff disruption in the right shoulder and had not commented on the narrowing of the sub-acromial space which indicated chronicity rather than an acute tear.

88. Dr Machart considered that the shoulder injury was more likely due to his chronic condition than an acute tear. His neck problems were caused by an aggravation of a pre-existing condition. Dr Machart considered the prognosis poor. There would not be any change in his right shoulder. He was fit for light duties, provided no overhead lifting and a lifting limit of 5 kgs.

89. Dr Bentivoglio and Dr Machart met in conclave and prepared a joint report.

90. They agreed that, as result of the accident, the plaintiff aggravated a pre-existing long-standing symptomatic rotator cuff disruption. Dr Bentivoglio considered that he had also aggravated a pre-existing condition in his neck although Dr Machart did not consider there was sufficient evidence to make that finding. Dr Machart raised doubts as to the plaintiff’s reliability as a historian.

91. Both doctors agreed that he did not require any further investigations or treatment and did not expect any improvement in the neck or shoulder. His prognosis was guarded. Dr Machart did not consider that the plaintiff was overly disabled. There would be limits on his physical capacity but he could be employed in other industries provided there was no overhead work and there was a limit on his lifting capacity. Dr Bentivoglio agreed that his lifting capacity should be 5 kgs and he should not be involved in pushing or pulling.

92. There was evidence from two occupational therapists, Ms Owen on behalf of the plaintiff and Ms Colyer on behalf of the defendant.

93. They met in conclave and prepared a joint report. The effect of their evidence is that the plaintiff would have required extensive care in the weeks following his operative treatments and for short periods thereafter but he would not have required extensive care for a period of at least up to 6 months.

94. In my view the plaintiff would not overcome the threshold for gratuitous care of six hours per week for at least six months (see CLA s 15).

95. For the future he may require some domestic assistance by way of commercial cleaning and undertaking the heavy physical tasks around the home. At best he would be entitled to 2 hours per week. However, he expressly disavows any claim for commercial care, making a claim for gratuitous care.

96. I accept that the plaintiff is left with long-term disability arising out of the pain and discomfort in both his neck and shoulder and that both problems are related to the accident. However, there is some exaggeration in his reports of pain levels. His level of disability is not such that he would need extensive ongoing domestic assistance.

97. According to the experts he does not require any ongoing treatment.

98. I accept that he would be unable to perform heavy physical work but he remains fit for other less physically demanding duties. Such a finding is consistent with the plaintiff’s own views as to his level of disability. The plaintiff has been applying for jobs and accepts that he would be fit for work for which he has been applying but he says that he understood his doctors to be suggesting that he could not perform work in which he is required to lift more than 2 kgs. The orthopaedic surgeons suggest a limit of 5 kgs.

99. This rather complicates the plaintiff’s claim for economic loss.

100. He came to Australia from the United States of America in 2011. He has extensive experience and qualifications in the pharmaceutical industry, specifically working as a Sterile Operator responsible for sterile preparation. He undertook this work for lengthy periods in the United States prior to coming to Australia and then in Australia. It is unclear why he was not working in that industry at the time of his accident but he may have lost his job.

101. I am satisfied that the plaintiff has been and will remain unfit for heavy process type work. However, there is no evidence that he would be unfit for the type of work that he had been performing for most of his career. The work he was performing at the time of the accident was just temporary until he found work in his chosen industry.

102. Yet, he has not found work in his chosen industry since the accident. Again, it is difficult to know whether that is because of his self-imposed restrictions or whether he had reached the stage of his career where that work was no longer available to him, perhaps as indicated by his undertaking process work at the time of the accident.

103. The plaintiff has remained and will remain unfit for the work that he was doing at the time of the accident. His past loss would amount to $178,000 as claimed. The defendant bears the onus of establishing not only that there is other work that he could do but also that such work would have been readily available to him. In Rabay v Bristow [2005] NSWCA 199 McColl JA observed at [73]:

“Compensation for loss earning capacity is awarded because of the diminution in an injured plaintiff’s earning capacity “is or may be productive of financial loss”: Graham v Baker [1961] HCA 48; (1961) 106 CLR 340 at 347. It is incumbent upon the plaintiff to prove the loss for which compensation is claimed (Todorovic v Waller [1981] HCA 72; (1981) 150 CLR 402 at 412) but, conversely, it is not incumbent upon the injured plaintiff to prove what employment he or she “is not incapacitated from performing”. It is for a defendant which contends that the plaintiff has a residual earning capacity to adduce evidence of what the plaintiff is capable of doing and what jobs are open to such a person: H Luntz, Assessment of Damages for Personal Injury and Death (4th Ed) at 118 [1.9.20].”

104. There is no evidence that, despite his inability to find work in his chosen field prior to the accident, he would have obtained such work at any point since the accident. The defendant has not established both aspects of its evidentiary onus.

105. The same principle applies to the future, except that I would be inclined to discount his claim by 30% on account of the prospect that his self-imposed restrictions on his ability to work may be removed. I allow the sum of $95,000 for the future.

106. The plaintiff’s out of pocket expenses have been paid by the workers compensation insurer. I received a list of payments made by the workers compensation insurer amounting to $318,317.60. This list includes lump sums paid to the plaintiff and significant investigation and rehabilitation expenses.

107. I understand that having regard to my findings out of pocket expenses are agreed in the sum of $270,000.

108. There is no evidence that he requires any further treatment, which may be surprising having regard to the amount of treatment he has had in the past.

109. Having regard to the plaintiff’s injuries and disabilities I assess non-economic loss at 33% of the most extreme case ($238,500).

110. Although I would have allowed 2 hours per week commercial care, there is no evidence on which to base a claim for commercial rather than gratuitous care. For the future, he does not overcome the s 15 threshold for gratuitous care.

111. If he succeeded, I would have assessed damages in the sum of $781,500.

112. He has not succeeded.

113. Subject to any further application, he must pay the defendant’s costs.

Orders

114. I make the following orders:

1. Judgment for the defendant.

2. The plaintiff is to pay the defendant’s costs.

3. Grant liberty to apply should either party seek a variation of that costs order.

Decision last updated: 22 February 2024