Milios v Austress Freyssinet Pty Ltd

[2016] NSWDC 348

District Court

New South Wales

Medium Neutral Citation:	Milios v Austress Freyssinet Pty Ltd [2016] NSWDC 348
Hearing dates:	23 and 25 November 2016
Date of orders:	02 December 2016
Decision date:	02 December 2016
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) Judgment for the Defendant. (2) Plaintiff pay Defendant’s costs. (3) Liberty to restore in relation to costs. (4) Exhibits retained for 28 days.
Catchwords:	TORT – negligence – personal injury – workplace accident – plaintiff injured back while stirring a mix of sand and cement without assistance – whether absence of assistance amounted to an unsafe system of work – causation – whether plaintiff’s ongoing disabilities resulted from the work injury or subsequent employment accident – credit issues in relation to damages – application on first day of hearing for order pursuant to s 318(1)(c) Workplace Injury Management and Workers Compensation Act 1998 (NSW) in relation to plaintiff’s expert report – application to exclude the plaintiff’s report not brought during the hearing – application by defendant to reopen case to bring application to exclude report after judgment reserved – both experts made the same factual errors and their findings were accordingly of no weight – judgment for the defendant
Legislation Cited:	Civil Liability Act 2002 (NSW) Occupational Health and Safety Act 2000 (NSW) Occupational Health and Safety Regulations 2001 (NSW), cl 9, 10, 11, 13, 14 and 16 Workers Compensation Act 1987 (NSW), ss 151D and 151L
Cases Cited:	Cicino v F & C Tassone & Sons Pty Ltd [2016] NSWDC 191 Czatyrko v Edith Cowan University (2009) 214 ALR 349 EB v CT (No 2) [2008] QSC 306 Liftronic Pty ltd v Unver (2001) 75 ALJR 867 March v E & M H Stramare Pty Ltd (1991) 171 CLR 506 Nominal Defendant v Kostic [2007] NSWCA 14 Patrick Stevedores Operations (No 2) Pty Ltd v Hennessy [2015] NSWCA 253 Smith v New South Wales Bar Association (No 2) (1992) 176 CLR 256 Urban Transport Authority of New South Wales v Nweiser (1992) 28 NSWLR 471 Van der Sluice v Display Craft Pty ltd [2002] NSWCA 204 White v Logen Pty Ltd As Trustee for the Byrn Family Trust [2014] NSWCA 159 Wyong Shire Council v Shirt (1980) 146 CLR 40
Category:	Principal judgment
Parties:	Plaintiff: Andrew Milios Defendant: Austress Freyssinet Pty Ltd
Representation:	Counsel: Plaintiff: Mr T Meakes Defendant: Mr H Halligan   Solicitors: Plaintiff: Paramount Compensation Lawyers Defendant: Rankin Ellison Lawyers
File Number(s):	2015/72511
Publication restriction:	None

Judgment

Introduction

1. The plaintiff brings proceedings pursuant to the common law provisions of the Workers Compensation Act 1987 (NSW) (“the Act”) for injuries suffered in the course of his employment by the defendant at a construction site in Pyrmont on 12 March 2007.

The circumstances of the plaintiff’s accident

2. The circumstances of the accident were as follows. The plaintiff was told by his supervisors that the builders were “pushing us to get ahead of schedule” and that it was necessary to “finish sealing that deck so we can get ahead of schedule” (T 20). The task in question, which was to mix sand and cement with a “small shovel” (T 23), was one he had carried out on other building sites, but with three people involved, as the work in question was to mix the sand and cement continuously for some period of time, so the work load would be distributed. On this occasion, the plaintiff was left to do this work on his own. He performed it for 30 – 35 minutes, after which he felt a sharp, excruciating pain in the lower back (T 23). His supervisor came over and they had the following conversation:

“A. He said to me - and I attempted to - what happens is I dropped the shovel as soon as the injury occurred, and Dion arrived, and then I attempted to pick - then Dion came. He goes, "Oh, are you all right?" I said, "Yeah, I'm all right." And then I attempted to pick up the shovel off the ground, and then I couldn't pick it up. And then he‑‑

Q. So what did you do then?

A. And then he goes to me, "Andrew, this is serious - you've injured your back. You need to go to First Aid immediately.” (T 24)

3. The plaintiff went to First Aid and then to the medical centre he regularly attended at the time. The subsequent history of his treatment is set out in detail below.

4. The plaintiff lodged a Claim Form with CGU Workers Compensation Insurance and provided accident particulars and relevant witness details. He was off work for approximately three months. When he returned to work he first performed office duties until October 2007, when he attempted to return to pre-injury duties and immediately felt a recurrence of the pain. He ceased work with the defendant in November 2007 and his subsequent work history is set out in more detail below.

The pleadings

5. The plaintiff sets out the nature of his employment at paragraph 3 of the statement of claim as follows:

“3. On or about 12 March 2007 the plaintiff, in the course of his employment with the defendant the plaintiff worked for the defendant as a skilled labourer/post tensioning technician performing a variety of heavy manual duties, including heavy manual handling of equipment, constant heavy lifting, twisting and bending and other duties required of him in the construction industry without manual or mechanical assistance.”

6. The particulars of negligence and breach of statutory duty are as follows:

1. Failing to devise and maintain a safe system of work for the plaintiff;

2. Failing to provide or adequately provide manual assistance in repetitively lifting weights in excess of 20kg;

3. Failing to provide or adequately provide mechanical assistance in repetitively lifting weights in excess of 20kg;

4. Failing to warn or adequately warn the plaintiff of foreseeable risk of injury posed by heavy and repetitive manual lifting weights in excess of 20kg;

5. Failing to supervise or adequately supervise the plaintiff in performing heavy and repetitive manual lifting weights in excess of 20kg;

6. Failing to instruct or adequately instruct the plaintiff on lifting procedures or safe manual handling techniques;

7. Failing to train or adequately train the plaintiff on lifting procedures or safe manual handling techniques; and

8. Failing to properly identify and eliminate all risks of injury associated with heavy and repetitive manual handling;

9. Failing to comply with statutory duties under the Occupational Health and Safety Act 2000 and Occupational Health and Safety Regulations 2001.

7. The particulars of breach of statutory duties are as follows:

1. Failure, as employer of the plaintiff, to conduct a risk assessment and to identify hazards arising therefrom, contrary [sic “to”] clause 9 of the Regulations.

2. Failure as employer of the plaintiff, to assess the risk of harm to the health and safety of the plaintiff arising from any hazard identified in accordance with Chapter 2 of the Regulations, contrary to clause 10(1).

3. Failure, as employer of the plaintiff, to eliminate, or if it was not practicable, to control the reasonably foreseeable risk to the safety of the plaintiff that arose from the defendant’s unsafe system of work requiring the plaintiff to manually handle excessive weights, contrary to clauses 11(1) and 11(2).

4. Failure, as employer of the plaintiff to ensure that the plaintiff was informed of the risk to his safety and to provide information, instruction and training necessary to ensure his safety, commensurate with the risk to safety contrary to clause 11(2).

5. Failure as the employer of the plaintiff, to ensure that the plaintiff received adequate and proper induction training, contrary to clause 13(1).

6. Failure, as the employer of the plaintiff, to provide persons who had responsibilities of identifying hazards, assessing risks, arising from those hazards, eliminating or controlling those risks, monitoring or reviewing risk control measures and providing information with all available information necessary to enabling them to fulfil those responsibilities, contrary to clause 13(3).

7. Failure, as employer of the plaintiff, to ensure that the plaintiff was provided with reasonable supervision by a competent person necessary to ensure the safety of the plaintiff, contrary to clauses 14(1) and 14(2).

8. Failure, as employer of the plaintiff to obtain such information as necessary to enable the defendant to fulfil the employer’s responsibilities under the Regulations with respect to identifying hazards, assessing risks arising from those hazards, eliminating or controlling those risks and providing information in the form of reasonably available information from an authoritative source in respect of manually handle an excessive weight in awkward and confined spaces, contrary to clauses 16(1) and 16(2).

8. The injuries particularised in the amended statement of particulars are as follows:

1. L2/3 parasagittal disc protrusion impinging on the sac;

2. L3/4, central disc protrusion impinging the sac;

3. L5/S1 large Schmorl’s node involving the superior S1 endplate;

4. Left sided sciatica extending to the left leg;

5. Right sided sciatica extending to the right leg;

6. Psychological sequelae.

9. The disabilities particularised are as follows:

1. Severe injury to back, subsequently, operative procedures;

2. Severe injury to right and left legs as a consequence of back injury and radiculopathy into both legs from back;

3. Constant pain in and restricted movement of both legs;

4. Constant pain in and restricted movement of the back;

5. Probable need for further back surgery in future;

6. Difficulty keeping back and legs bent and in fixed postures for extended periods;

7. Difficulty walking up or down steps or stairs or on rough or soft ground;

8. Difficulty walking up or down slopes;

9. Restricted ability to lift, carry, push or pull;

10. Restricted ability to keep back in fixed postures for extended periods;

11. Restricted ability to keep knees in fixed postures for extended periods;

12. Restricted ability to squat or kneel or work in confined or awkward confined spaces or awkward positions;

13. Difficulty driving or controlling a motor vehicle for extended periods;

14. Increased pain in wet or cold weather;

15. Significant sleep disturbance;

16. Constant and often severe fatigue;

17. Depression and anxiety;

18. Irritability;

19. Social withdrawal;

20. Loss of motivation;

21. Decreased self-confidence;

22. Aggravation of pain by physical activity;

23. Reduced ability to engage in activities of daily living;

24. Reliance on spouse and others for domestic assistance;

25. Restricted ability to engage in and undertake domestic duties, gardening, home maintenance and repairs, lawn mowing and similar activities;

26. Restricted ability to engage in pre-accident recreational and sporting activities;

27. Permanent restriction of ability to engage in manual work;

28. Permanently unfit for work requiring use of ladders or scaffolding or working on or from ladders or scaffolding;

29. Permanently unfit for work requiring prolonged and fixed postures of the back and knees;

30. Requirement to undergo physiotherapy, hydrotherapy and pain management treatment;

31. Requirement to take pain killing and anti-inflammatory medication;

32. Restricted ability to engage in and loss of enjoyment of sexual relations;

33. Anxiety;

34. Depressed mood;

35. Insomnia;

36. Irritability;

37. Poor concentration;

38. Fear and helplessness;

39. Recurrent, intrusive and distressing recollections;

40. Diminished interest and participation in significant familial and work activities;

41. Feelings of detachment and estrangement from others;

42. Sense of a foreshortened future;

43. Symptoms of increased arousal;

44. Difficulty falling or staying asleep;

45. Outbursts of anger;

46. Anger bouts;

47. Mood swings;

48. Frustration;

49. Difficulty relaxing;

50. Difficulty making decisions;

51. Onset of paranoid state;

52. Need to take anti-depressant medication;

53. Need for supervision of medication intake by spouse;

54. Regular loss of temper;

55. Loss of motivation;

56. Social withdrawal;

57. Decreased self-confidence.

10. As to paragraph 3 of the statement of claim, the defendant pleads:

1. Admits that it employed the Plaintiff as at 12 March 2007.

2. Says that the Plaintiff was employed as an unskilled Labourer.

3. Admits that the Plaintiff’s duties involved tasks relating to tensioning of concrete on work sites.

4. Denies that his duties involved heavy manual handling, constant heavy lifting and repetitive bending and twisting.

5. Says that it utilised mechanical lifting devices for weights over 20 kilograms.

11. The defendant denies negligence and causation and pleads a particular of negligence (“failure to take reasonable care for his own safety having regard to his skill and experience”) of such wide import as to be of little assistance to an opposing party seeking to know the case to meet.

12. A plea of failure to mitigate is also pleaded under s 151L of the Act. A s 151D defence was abandoned and the short minutes of order reflecting this are Exhibit A.

The issues for determination

13. The issues for determination are as follows:

1. What were the precise circumstances of the plaintiff’s accident?

2. Did the defendant breach its duty of care to the plaintiff?

3. If so, did any breach cause the plaintiff’s injuries?

4. Were the plaintiff’s injuries caused by, or contributed to by, his own negligence?

5. Did the plaintiff fail to mitigate his loss?

6. What damages, if any, should be awarded?

The plaintiff’s evidence

14. The plaintiff said he had received a general induction when he went onto the site but no training was provided. He had a white card and had received the basic training associated with this:

“You held what was called a white card, didn't you?

A. That's correct.

Q. That's a card issued by the work cover authority, isn't it?

A. Correct.

Q. And it's a card that is provided after you satisfied minimum requirements in relation to health and safety?

A. Correct.

Q. And before you get a white card, there is a process of education or induction, isn't there?

A. Correct.

Q. That education and induction tells you how to carry yourself in a labouring work environment. Is that right?

A. I have no recollection, and I can't - I cannot - I cannot - I cannot - I cannot agree with you with that, sorry, no.

Q. What do you remember to be the process leading up to the issue of a white card?

A. Just general probably, you know, safety issues and things like that, but it's been so - it's been so long that I couldn't - I couldn't tell - I couldn't give you detail of specific things that they taught you in this induction, a part form general safety.

Q. Well, if I put it to you that the general safety involve lifting and carrying loads, what would you say about that?

A. I would say it may have had potential, it may have had potential training on how to handle objects.

Q. Right.

A. For example, boxes and postures and moving objects.

Q. Okay, and when you use the word "posture", you're talking about bending and straightening?

A. Correct, they're the things that they would have covered.

Q. And twisting?

A. I cannot recall anything about twisting.” (T 51)

15. He had performed the task of mixing sand and cement on several previous occasions at different work sites, but there had been either three or at least two workers taking turns to perform this task:

“Q. What happened at Castle Hill?

A. At Castle Hill, we mixed sand and cement and there was three people involved in mixing the sand and cement.

Q. What were you doing and what were the other two - just going slowly.

A. Sure.

Q. What were you doing and what were they doing?

A. They were turning and mixing the sand and cement.

Q. Which involves what?

A. Which involves bending over with the short shovel and throwing it and mixing the sand and cement on the floor and then once that guy was tired, we - after about five minutes, it'd be - the shovel would be passed on to the next guy and then he'll..

Q. What were you doing then? Watching?

A. I was watching and then it would be my turn to mix sand and cement. So it - the - the load would be distributed.

Q. Any problems doing that on that occasion‑‑

A. No, not at all.

Q. ‑‑at Castle Hill?

A. No.

Q. Back was okay?

A. Yeah, it was - was fine” (T 17 – 18)

16. He described having performed a similar mixing task with another worker when he was at Pyrmont:

“Q. When you got to Pyrmont, two days before the day of your accident, what did you understand when you arrived that your duties would be at Pyrmont?

A. At Pyrmont, well‑‑

Q. There was a building going on.

A. There was a building construction going on. Can I add, for the record, that in Pyrmont, I was - I was also involved in the task of mixing sand and cement there as well. It involved two people. I was‑‑

Q. When you first got there?

A. Yes, when I first got to Pyrmont, before the injury happened, so‑‑

Q. Was it the day before or two days before?

A. I can't tell you. Maybe a week. And that involved two people, myself and another man, mixing sand and cement.” (T 19)

17. The plaintiff was asked if there were other unusual features:

“A. Yeah, yeah, yeah, well, there was bags of sand and - there was bags of sand, there was bags of cement and the bags of - because he told us to get ahead of schedule and we need to finish, I did more - more sand with more cement which was two bags of cement and that was spread on the floor, mixed to an equal part of approximately six parts sand to the two bags of cement because that would - yep.

Q. Had you done that quantity before‑‑

A. Have I - no.

Q. ‑‑at Pyrmont or on other sites - that amount of sand and cement?

A. That amount of sand and cement, no.

Q. So what was unusual about this amount on this occasion?

A. What was unusual? Probably - look, I didn't know at the time, but after - probably, I think, unusual this time, I would say that - unusual? I can't say. There's probably maybe, you know‑‑

Q. Amounts of‑‑

A. The amount was probably a bit more than - a bit more. It was not a small amount of sand and cement. I would say it's a large amount of sand and cement.” (T 19)

18. He was asked how this was different:

“Q. So what did that mean you had to do that was different, if at all?

A. What did it mean if I had to do something different?

Q. Yes, what were you required to do then?

A. I had to mix the sand and cement.

Q. How did you do that?

A. With the shovel provided.

Q. What about any other equipment?

A. No.

Q. What about the water? Where did you get the water from?

A. The water would have been located from a tap and a bucket because buckets are, well, regular parts of equipment that we used and it wasn't a large amount of water. It's just a little sprinkle of water just to make the sand nice and moist.

Q. So where did the water come from?

A. Would have been - I can't tell you the exact specific location, but it would have been in a - in the vicinity.

Q. Did you have to get it, for example?

A. Yeah, exactly, yeah.

Q. Were you working on your own?

A. Yes, I was.

Q. Had you done this process on your own before with this company?

A. Have - have I done the process on my own? No.

Q. So you proceeded to carry out the task.

A. Yes.

Q. How long did you continue to carry out that task before something happened to you, roughly?

A. It was - in - in - in total, after having several analyses of the injury, about 30 minutes - 35 minutes and at the time, that's when my injured - my - my spine was injured.

Q. How long were you carrying out that activity before you noticed something about your back?

A. 30 - 35 minutes.

Q. What did you notice?

A. A sharp, excruciating, disabling pain in the lower back.

Q. Had you had that pain before?

A. Never.

Q. Were you actually doing anything in particular when the pain came on?

A. I was mixing the sand and cement.” (T 22 – 23)

19. It is not in dispute that the plaintiff immediately told his supervisor and went to his general practitioner on that same day.

Cross-examination of the plaintiff about medical issues

20. The plaintiff was asked about the medical history entries three years later, on 2 July 2010, following a consultation with his general practitioner. The plaintiff told his doctor he suffered back pain when he leaned into his truck to take out tools (T 61). It was put to the plaintiff that this was the injury which triggered his back pain, and that he had been symptom free before. He agreed that he had worked more or less continuously from mid-2008 onwards, and that he had also consulted Dr Garg about pain following lifting a 30-kg weight.

20. Mr Halligan put to the plaintiff that it was the April 2010 incident, not the 2007 incident, which resulted in his 2012 surgery:

“Q. Then, just to recap, after the St Vincent's Hospital intervention in 2008, we came to the April 2010, when you saw Dr Garg - and I've already mentioned that to you about the incident of working with the electrician. It's until June of 2012, is it, that you see Dr Steel, the neurosurgeon, who speaks to you about contemplating surgery. The surgery in fact takes place on 13 June 2012, right?

A. Correct.

Q. May I suggest this, Mr Milios, it wasn't until the incident at work assisting in electrician duties in April of 2010, did you come to surgery two years later?

A. May you suggest that?

Q. Yes.

A. Well, I'll have to disagree with that.” (T 66)

22. Mr Halligan later asked, a second time, about the circumstances in which the plaintiff lifted the 30 kg weight:

“Q. You've told us about what was involved in electrical assistant's work but on this particular day where you saw Dr Garg and complained to him, what was the situation on that day, reminding you that he took a history of lifting 30 kilos, two people, what were you actually doing on that day, do you remember?

A. What I would have contributed to was a complete gradual degeneration that resulted to having that meeting and reporting the symptoms that didn't happen from an isolated incident but it was the degeneration from 12 March 2007 and my attempt to return to society that degenerated the sciatic injuries and aggravated the sciatic injuries which then brought me to go and see Dr Garg at that appointment.

Q. What I was after and I'll ask you again, when you saw Dr Garg on 30 April, remember I read that history to you‑‑

A. Yes.

Q. ‑‑back pain, working as an assistant to the electrician, two years' pain aggravated by bending and lifting a group (two people lift 30 kilos), driving and sitting more than one hour.

A. Yes.

Q. Now, what I'm asking you is: what work were you doing at about that time, that's April of 2010, that involved lifting 30 kilos?

A. Okay. As a technician for the TAB is what we were doing is sometimes the roles would alternate and sometimes we would be doing wiring which would just, you know, be just wiring cables throughout the building and sometimes we would be installing touch screens which are mounted on the walls, a similar size to that LCD there, configuring touch screens, configuring electronic betting terminals, and also installing electronic betting terminals which weighed 30 kilos which required a group lift with the trade assistant and there as a handle on one side and a handle on the other side.

Yeah. So basically, there was a whole range of activities. This is not just one thing that we used to do. There was times and periods of months where there was no group lifting of the 30 kilograms because it wasn't in the schedule, you know, we were doing other type of equipment and things like that but at all times, it was never - at all times, it was assisted group lifting of these items that weighed 30 kilograms.

Q. But to distil your last answer, the 30 kilos is that a spool of cable, is it?

A. No. The 30 kilograms was the actual electronic better terminal, the weight of it.

Q. I see.

A. Yeah, it was a terminal. There was a handle on each side, you pick it up, and you group lift. So what is it? 15 kilos each person.” (T 74)

23. Although the dates in the cross-examination were out of time order, the chronology relied upon by the defendant is clear from the following questions:

“Q. So 40 hours a week plus travel from November 2007 onwards right up until the time of June 2008 when you have the fall that takes you to St Vincent's Hospital. Right? Correct?

A. Correct.

Q. You are kept in the hospital for some time while they check out your head injury.

A. Correct.

Q. They ask you to come back and you told them that you were fit and well without any hesitation about‑‑

A. Without going detail of - of deeper - of deeper issues?

Q. Yes.

A. Yes, without going detail of deeper problems that I had. So feeling well meaning that I was walking, I wasn't schizophrenic, I wasn't brain dead and I wasn't disabled. So generally fit and well with a bad spine.

Q. Then in August 2008, you told Dr Brown that you had returned to full‑time work.

A. I - I don't argue that.

Q. Then you continued with full-time work and by the time we get to April 2010 you're doing the subcontracting work for the electrician doing the duties we've already discussed. Correct?

A. (No verbal reply)

Q. Is that correct?

A. With extreme pain

Q. Extreme pain notwithstanding, that you were able to do all of those electrical tasks that I've discussed with you.

A. Excluding the extreme pain? Then yes, I agree to that.

Q. So it coincidentally comes to a point where you look at the option of surgery five years after the 2007 incident after talking to Dr Steel. Right?

A. That is correct.” (T 69)

The evidence relied upon by the defendant

24. The defendant called no evidence from any employees or other oral evidence, but tendered a number of work records, including a statement by Mr Reyes as to the records of the plaintiff’s absences from work and resignation.

25. The defendant also tendered a large bundle of medical records the contents of which are the subject of half a page of eight sentences in double-spaced written submissions and a chronology of similar length. (Counsel for the plaintiff’s outline of submissions lists the doctors at paragraphs 26 – 28 and refers to the vocational assessment at paragraph 29 of his written submissions but otherwise does not deal with these issues).

26. Mr Halligan made some brief submissions of a general nature to the effect that the plaintiff had no case because of the defects in Mr Burn’s report concerning the circumstances immediately prior to the accident. When I pointed out that the same defects existed in the defendant’s expert report, he said that this report was defective as well and that he placed little weight on it.

27. This is a case where there was a significant period (3 years) between the plaintiff’s accident and his ceasing work, and a further two years would elapse before surgery. Whether the plaintiff’s disabilities relate to his work injury requires a careful analysis of the medical evidence: Nominal Defendant v Kostic [2007] NSWCA 14. Unfortunately, as was the case in Kostic, I have been left to make this inquiry without any significant assistance from the parties.

28. The parties’ positions as to the medical evidence are as follows. The plaintiff relies upon the opinions of Dr Drummond, Dr Habib and others that the plaintiff has a serious injury resulting in a limited earning capacity for sedentary duties of the kind outlined by Ms Carter in her 13 August 2014 report. The defendant argues that the plaintiff’s injuries arose from one or more incidents in 2010, that he was “99% improved” by the time he ceased employment with the defendant, that he is perfectly capable of full time work today and that he is in fact working in his own start-up business selling olive oil.

The medical evidence

29. The plaintiff saw a general practitioner in the same practice as Dr Garg on 12 March 2007 and Dr Guerri-Gutenberg on 19 March 2007. He saw Dr Garg, his regular general practitioner, on 15 and 31 August 2007. The MRI ordered by Dr Kalnins, dated 24 April 2007, notes:

1. At L2/3 a small protrusion with slight indentation in the thecal sac but no foraminal stenosis;

2. Ad L3/4 a small central disc protrusion with slight indentation and no foraminal stenosis;

3. No disc protrusion or foraminal stenosis at L4/5;

4. The same finding at L5/S1 (but there is a Schmorl’s node indenting the superior end plate of S1);

5. The comment is: “”disc protrusions at L2/3 and L3/4 as described” (Exhibit A).

30. Dr George Kalnins confirmed the discal damage which was reported in the plaintiff’s claim form of 1 May 2007, which referred to the plaintiff “mixing sand and cement with shovel”.

31. The plaintiff next saw Dr Garg on 26 September and 12 October 2007. He told Dr Loretta Reiter, a rheumatologist (Exhibit 1, p. 32), that in August 2007 his pain was “about 50% better”. According to Greg Schneider, a physiotherapist, in November 2007 he told Dr Reiter that he was “99% better” by November 2007 (Exhibit A p. 36). This was considered very significant by Mr Halligan (T 101, but note that the exhibit reference he gives is incorrect) but, like all other evidence in relation to the plaintiff’s injuries and disabilities, needs to be seen in context.

32. As is noted above, the plaintiff had a fall on 15 June 2008 and told the staff that he was normally “fit and well”, and that he was working full time.

33. The defendant acknowledges (written submissions, paragraph 24) that the plaintiff’s back pain was “intermittent since 2007.” This is confirmed by the Primecare notes as well as by the plaintiff’s general practitioner’s notes (Exhibit 1B, tab 1).These notes do not, however, show that the plaintiff had “infrequent” visits to his general practitioner “usually to obtain analgesic scripts” (written submissions, paragraph 23). Dr Kalnin’s reports of 8 May and 10 July 2007 set out the plaintiff’s treatment regime. The plaintiff also occasionally saw Dr Tsang (Exhibit A tab 8) but the first relevant entry is 13 August 2012. He had physiotherapy from Mr Berbari from 20 November 2009, who noted that the plaintiff was at that stage working for the TAB as a data technician, and was “able to manage the physical forces placed on his spine related to his nature of work” (report. 18 February 2010).

34. As to analgesia, Dr Garg’s records show that he had prescriptions for Augmentin and panadeine in 2007 as well as 3 prescriptions for Voltaren but that there was a gap in the medication until May 2009, when he was given prescriptions for panadeine forte and Voltaren. There is then a gap until July 2010, following which there is a series of prescriptions for pain killers. The plaintiff was, however, complaining of back pain on other visits; for example, he consulted his doctor on 1 July 2008 to say Voltaren did not help. He made a similar complaint on 28 May 2009, saying that he had had the back pain since an accident at work in March 2007 (Exhibit 1, tab 1).

35. The plaintiff’s lawyers, Paramount & Co, sent the plaintiff to see Dr Drew, a general surgeon, on 19 February 2010. He noted the plaintiff’s 28 March 2007 x-ray, the MRI and the referral to Dr Kalnins, an orthopaedic specialist, and his subsequent employment with Bestline, putting his impairment at 5% and adding:

“At present he is working full time on light duties, restricted to about a 20 kg lifting limit. He has quite severe but intermittent pain in the right buttock especially after strenuous physical activity. …He is having no treatment at present but would like to have more osteopathic treatment. He sometimes takes Voltaren for severe pain but takes no other medication. He can drive a car and manages the activities of daily living without difficulty….He tried to get back to soccer but could not manage it.” (Exhibit A tabe10)

36. On 30 April 2010 Dr Garg’s notes (Exhibit 1, tab 1) state:

“Ongoing back pain, working as assistant to the electrician for 2 years, pain aggravated by bending and lifting a group (2 people) lift 30 kgs, driving and sitting more than 1 hour causes localised back pain despite stretch, requesting referral to Dr Manohar and his osteopath Mr Zekis. Has not seen Dr Reiter as too busy working. Has regular home exercises [worse if he does not’. Using Voltaren once a fortnight, depending on strenuous activity at work.”

37. Dr Manohar saw the plaintiff at the request of Dr Garg on 31 May 2010 (Exhibit 1B tab 2). He noted the plaintiff’s symptoms as low back pain extending down the legs, aggravated by bending, lifting, reaching and other factors. He noted the history as being that on 12 March 2007 he suffered an injury which he reported to Dr Garg and was given pain killers. Since that time he had had an MRI and non-traditional treatment (hydrotherapy, pain management and physiotherapy) as well as 30 sessions of osteopathy and exercise but “he tells me the symptoms have remained the same”.

38. Dr Drew, the general surgeon the plaintiff saw in February 2010, wrote a report on 19 February 2010 stating the plaintiff’s injuries were “due to his activities at work on 12 March 2007” which activities he described as “mixing sand and cement.”

39. The plaintiff went back to Dr Garg on 19 July 2010, giving a history “back pain again since reaching into his van to get the tools out on 2/7/2010, stopped work from 5/07/2010.” A letter for Centrelink was created and Endep and Voltaren prescribed.

40. Dr Manohar had recommended a further MRI, and reported the results on 21 August 2010. His later report of 20 September 2010 states:

“The MRI scan of the lumbosacral spine shows a grade 1 spondylolisthesis at the S1/S2 level with some anteroposterior vertebral malalignment. The L4/L5 annulus shows some bulging. The L3/L4 shows some bulging and a small mid-line posterior annular tear.

He has pain extending to the buttock, hip and down the left leg to the ankle.

It is conceivable that the disc tear is leaking leuktriens and irritating the posterior longitudinal ligaments of both legs.

I have recommended a selective nerve root sleeve blockade at the L4/L5 level on the left side followed by the right side.”

41. Dr Manohar’s letter was sent to the insurance company. Dr Manohar’s letter of 20 December 2010 confirmed spondylolisthesis and an annular tear at L3/L4, saying the plaintiff wants “a serious solution” and that he had referred him to a neurosurgeon, Dr Abraszko.

42. The plaintiff was in a state of distress and his general practitioner referred him to Mr Lamas, a psychologist, who reported, on 30 October 2011, that the plaintiff needed a course of counselling.

43. On 10 November 2011 the plaintiff had returned to see Dr Steel, who noted “impressive” disc changes at L5/S1 (Exhibit 1B tab 1) but was cautious about surgery.

44. Dr Steel performed an MRI on 13 December 2011. Nerve studies dated 25 March 2011 showed mild chronic left L5 nerve root dysfunction and an MRI scan dated 13 December 2011 showed segmentation anomaly and a narrowed L5/S1 disc.

45. On 2 February 2012 the plaintiff saw Dr Sutton, who reported to Dr Steel, after Dr Steel asked him to see the plaintiff (Exhibit A, tab 11), that he could not find any evidence of radicular involvement, or any evidence of significant nerve root compression. He was “unable to explain” the plaintiff’s back pain. He notes the plaintiff paid for the October 2011 nerve conduction studies and provided them to him, but that these were normal.

46. Mr Halligan considers this is an important report which shows that Dr Sutton had a different view about whether there was anything wrong with the plaintiff. However, viewed in context, this is an opinion by another specialist about what is wrong with the plaintiff. Dr Steel went ahead and operated on the plaintiff notwithstanding this opinion.

47. Dr Steel reported (7 March 2012) that plaintiff had severe disabling lumbosacral pain and that L5 – S1 fusion was proposed. Surgery was carried out on 13 June 2012 by Dr Steel who reported that 6 weeks later, the plaintiff said pain was reduced (letter 4 August 2012). However, he later complained of more pain. Dr Steel performed a lumbar MRI on 21 August 2012 which showed no significant nerve root compression but proposed an EMG for the left leg.

48. Dr Bentivoglio, who first saw the plaintiff on 12 March 2012 (before the surgery) has provided a medico-legal report. He sets out the history of the plaintiff’s treatment, noting that the plaintiff said the surgery was helpful and that a repeat MRI scan did not show any evidence of neurological compression. However, he injured his back again while kneeling on 4 August 2012 and redeveloped low back pain going into his heel, which was new (Exhibit A, tab 17).

49. Dr Csillag’s CT scan report of 20 September 2012 notes:

“Moderate L4-5 soft tissue central canal compromise. Mild diffuse disc bulge at L3-4 and L2-3. There is no evidence of operative complication and no high-grade compressive neural lesion seen. The step deformity anteriorly at the superior end plate of S1 is noted and this likely represents an unusually prominent Schmorl’s node.”

50. The plaintiff had a second appointment with Dr Bentivoglio on 18 September 2013. He thought the surgery had helped about 50% but told Dr Bentivoglio his walking and sitting were restricted, although “he could drive and he was able to work” (Exhibit A, tab 17). Dr Bentivoglio noted that as the radiculopathy still persisted, he had a total body impairment of 20 – 23%. He was capable of light duties but should not lift more than 15 kg.

51. Dr Drummond saw the plaintiff for CGU on 27 March 2014. He stated:

“Permanent impairment results from the effects of the injury on 12 March 2007 producing symptoms in the pre-existing spinal segment anomaly, degenerate intravertebral discs, facet joint osteoarthritis.

Surgery has been performed to address this pathology. Recovery from surgery is complete…”

52. Whole person impairment was assessed at 15%.

53. Dr Habib saw the plaintiff on 29 April 2014 (Exhibit A tab 21). He noted the plaintiff had no prior history of back problems although he had asymptomatic changes. Work injury was the substantial contributor to his condition.

54. The MRI of the lumbar spine dated 17 July 2015 concludes that there are post-surgical changes but that no marked enhancement or marked mass effect is shown. Comparison of the findings for the four vertebrae to the 2007 MRI shows that there is now mild bilateral foraminal narrowing.

55. A report from Dr Parmegiani dated 23 March 2016 sets out the impact of the injury and sequelae on the plaintiff. He notes that there was earlier counselling by Dr Anning but was only given general information about Mr Lamas. He describes these proceedings as having a dramatic impact on the plaintiff and was concerned that he was self-medicating (Exhibit A tab 24).

Conclusions concerning the relationship of the plaintiff’s injury with his disabilities

56. In his submissions, Mr Halligan drew my attention to isolated reports, such as Dr Reiter’s account of the plaintiff feeling 99% better in 2007 and Dr Sutton saying he can find no reason for the plaintiff’s symptoms, in submitting that the plaintiff had completely recovered from his injuries and suffered the injuries complained of in these proceedings after an unrelated accident while employed elsewhere, most probably during 2010. As I have set out below, the above summary of the plaintiff’s medical history puts those isolated reports into proper perspective. Mr Halligan also asserted (wrongly, as the chronology above demonstrates) that the plaintiff rarely consulted his general practitioner for several years after the accident, and then only to seek analgesics.

57. Examination of all the medical evidence in context and chronological order demonstrates a consistent pattern of a previously healthy plaintiff with no back problems suffering an injury in March 2007 for which he tries a series of conservative remedies ranging from medication to physiotherapy. As I have set out above, he consulted medical practitioners as well as seeking assistance from a wide range of providers including an osteopath, on a regular basis, making the same complaints and seeking assistance of an increasingly interventionist nature. As he gradually worsened he came to consider surgery, which was performed by Dr Steel.

58. Mr Halligan submitted that I should be suspicious about the absence of medico-legal reports from persons such as Dr Steel or the osteopath. There certainly is a plethora of medical reports in this case, nearly all of which I have been left to digest without the benefit of submissions as to their contents. Having read those documents (the most significant of which are summarised above), I am satisfied that the plaintiff was diligently pursuing remedies for an increasingly painful back. The specific matters put to the plaintiff in cross-examination (that he said he was too busy to go to one physiotherapy appointment, or that he told Dr Reiter he felt 99% better) make no difference to that overall pattern.

56. I am satisfied that the plaintiff’s injuries are a direct result of the accident the subject of this claim, that they have gradually worsened over time and that they resulted in his surgery.

57. In making that finding I have also taken into account the plaintiff’s work history after the accident, which I set out below.

The plaintiff’s work history after the accident

61. The statement of Mr Reyes (Exhibit 1A, pp 218 – 221) sets out that he has reviewed a letter from the Human Resources Manager of the defendant, Mr Greg Preston, to Brydens Lawyers, dated 17 March 2008, setting out that the plaintiff was injured whilst mixing sand and cement with a shovel and that his claim for workers compensation and liability was accepted. He says that the plaintiff did not lose any time from work other than two days off between 12 – 15 March 2007 and that after the MRI result he was referred for physiotherapy. He was at work on suitable duties from 15 March 2007 and provided WorkCover NSW Medical Certificates which reviewed his fitness for work. By 29 October 2007 he was certified to lift up to 20 kg. He resigned of his own volition on 11 November 2007.

62. According to the plaintiff’s own account (Exhibit 1A p. 257) his reason was his lower back injury, and he was “choosing to pursue a career that will be more suitable and safer for my changed health conditions.” He obtained alternative employment with Bestline as a technician/electrician’s assistant, installing TAB equipment at TAB sites around New South Wales:

“A. Once I was rehabilitated after the injury, I was asked - I was advised to go back into pre‑injury duties, and on the first day in this attempt, towards the end of the day, I re‑injured the spine and I became - was - it took me back to square one, basically. And then I, I was very irate because I told them that I thought it was a little bit - might have been unsafe for me to go back to pre‑injury duties and they assured me that it would be fine. And then after that, once I re‑injured it, I became too - I was afraid and I thought I'd - it's best to find alternate employment, something more suitable to my injuries. So your answer to - also to that would be that I had a probably a couple of weeks off, I waited for the aggravation to settle down and I found employ - alternate employment.” (T 35)

63. The plaintiff worked full time, and without interruption, for Bestline during 2008; he thought he only worked there for a year (T 61). He travelled around New South Wales, which included long drives, as well as staying in the country, which was where he first became interested in good food and wine.

64. The plaintiff said he was still in pain when he did this work:

“Q. How did you get through it?

A. Because I have a high pain tolerance and there was - I had to put bread and butter on the table so it was - I - I pushed myself through extreme pain to - to be able to work in the TAB. It was never done comfortably, there was always persistent sciatica but I had to work through it because I had to put food on the table and they were the only positions that are available for me.”

(T 92)

65. However, it seems the plaintiff’s work for Bestline was longer and involved heavy lifting:

“A. At that time, when you refer to that appointment with Dr Garg in Roselands, more than likely I was sub-contracting but still doing the same TAB work, but as a sub-contractor and not on wages.

Q. You were working full-time, weren't you, by about 2008?

A. Yes.

Q. In fact, when you started with Bestline you continued virtually uninterrupted in your work. Is that correct?

A. Through Bestline?

Q. Yes?

A. Uninterrupted?

Q. Yes?

A. Uninterrupted as in not taking any time off work for work injuries?

Q. Correct.

A. That is correct, can I expand on that or‑‑

Q. Not for the moment.

A. Okay.

Q. So then by April 2010, you have gone back to see Dr Garg and you complained to Dr Garg on that occasion that you had ongoing back pain working as an assistant to an electric, and for two years. Is that accurate?

A. That's very accurate.

Q. You had back pain bending and lifting 30 kilos with the assistance of another person. Is that right?

A. Joint.” (T 62)

66. It was put to the plaintiff that his work (whether as an employee or subcontractor) for Bestline as an electrician, not the 2007 injury with a shovel, led to the surgery he underwent with Dr Steel. The plaintiff denied this, and said that he had been in continual pain since 2007 (T 69 – 70):

“A. The accurate picture is I suffered severe sciatica immediately after mixing sand and cement and as time progressed, the sciatica increased and increased and increased and increased and increased and then it got to the pain - got to the point whereabouts in about 2011, 2010 where I wasn't coping very well psychologically and then I decided to consult with some surgeons to try and fix the sciatic systems that were first presented after the injury on 12 March 2007 and surfaced within - within a month of the injury of 12 March 2007. And that was sciatic symptoms down the front left shin and also sciatic symptoms in the right buttock. That was - that all - they were all experienced one month after the injury on 12 March 2007.” (T 70)

67. This work history is also relevant to the plaintiff’s evidence in that he has been unsuccessful in many attempts to get back to work since he ceased work in 2010, that his IT qualifications are useless, and that his activities in relation to selling olive oil he imports from Greece do not earn money and do not involve physical labour.

68. These parts of the plaintiff’s evidence were the subject of attacks on his credit and are set out below. I have also taken the issue of credit into account in relation to the medical causation issue.

Issues relevant to the plaintiff’s credit

69. The plaintiff’s credit was challenged on three main bases, in addition to the other challenges to his evidence set out above:

1. Although he says he has not worked since 2010 he has maintained a business importing olive oil which requires him to carry items such as cartons of olive oil. That business is asserted not to have kept proper records;

2. The plaintiff is shown in surveillance photographs performing tasks such as bending over and carrying items of some weight. This is relied upon to allege that the plaintiff is not only capable of going back to work but that his asserted difficulties in finding employment should be viewed with suspicion.

3. His 2001 diploma in IT was a valuable employment tool which he could easily use to obtain a job.

70. The plaintiff ceased work in April 2010 and effectively has not worked since, although he has participated in a family business which involves importing olive oil from Greece. His father had invested money in the business, and he and his father unloaded the bottles and sold them to stores. There were 40 packets of 12 bottles in each pallet and the plaintiff would have made a profit of $8,352 per shipment after freight costs (assuming there are no other overheads: T 75-76) if he sold all the bottles. He bought two shipments per year on this basis.

71. The plaintiff agreed that he could lift cartons of olive oil for the purposes of this business:

“Q. So you have to lift those cartons ‑ don't you ‑ into a vehicle.

A. With the assistance of my father, correct.

Q. So there's ‑ the two of you go out and between 100 or 120 cartons ‑ let's call it ‑ for your benefit ‑ it's only 100, you'd be lifting 50 cartons into a van or some other vehicle to take them home, wouldn't you?

A. They're palletted into the truck. Once we take them ‑ once we deliver them ‑ once we get home, there would be me, my mother, my father and we would ‑ and sometimes my brother ‑ and we would hand load them from the truck into my premises ‑ correct.

Q. You're not suggesting that you can't lift a carton of 1 litre bottle of olive oil, are you?

A. Am I suggesting that I can't?

Q. Yes. You're not suggesting that you can't do that‑‑

A. No, I'm not suggesting I can't.” (T 81)

72. The plaintiff was shown photographs of himself bending over and carrying some empty cartons and was asked:

“Q. May I suggest that that bending over is something that you can perform as often as you choose?

A. I disagree.” (T 83)

73. The plaintiff’s evidence in chief had been to the effect that he had planned to stay in the construction business for the whole of his working career. It was put to the plaintiff that his passion for fine foods and holistic products meant that this was a business he would have gone into whether he was injured or not, and that the surveillance photographs showed he was capable of doing this work:

“Q. This is something that you would have done in any event, whether you had an accident or not.

A. Disagree.

Q. You would have come to this type of activity ‑ doing that type of work ‑ irrespective of any injury occasioned to your back.

A. Disagree.

Q. You've agreed with the photographic evidence to the extent that it shows activity.

A. Correct.” (T 83)

74. The plaintiff said that he and his father did half the work each, and that this meant visiting around 10 – 12 outlets. He agreed that this required driving to stores, but said he used a trolley to load and unload the bottles (T 85).

75. Mr Halligan not only put to the plaintiff that these deliveries involved hard work, but that the description of this company as “dormant” on ASIC records was not correct. The plaintiff said that this was the advice he had received from his accountant. A letter from the accountant advising there were no tax documents for the company was produced under subpoena (Exhibit 4, T 79).

76. The plaintiff has been in receipt of benefits from Centrelink in the form of a NewStart Allowance, and has undergone work assessments as well as seeking employment. His evidence was that he had to date been unsuccessful:

“Q. Have you had any interviews for any employment this year?

A. Yes, I have.

Q. We're in November now, so do you remember when they were roughly?

A. About three to four months ago.

Q. Do you remember any particular interviews that you've had with anyone?

A. Yes.

Q. Could you tell her Honour which one or which ones you can remember?

A. I applied for a part‑time customer service role, it was for Woolworths, and it was based in Mascot, which was really good for me because I live in East Hills and we have the airport line.

Q. The train line, yes.

A. Train line, so it was quite an ideal opportunity. And I attended the interview. In my belief I done a fantastic job in the interview.

Q. Where was the interview?

A. In Mascot.

Q. At Woolworths?

A. No, this was the call centre for Woolworths, yeah.

Q. Did you have to answer questions?

A. Yes.

Q. What did you understand the position was?

A. It was a customer service support officer.

Q. And what's that?

A. It's someone who answers the telephone in an inbound call centre and receives phone calls and offers customer service and customer complaint escalation and resolution.

Q. Did you get the position?

A. No.” (T 41)

77. The plaintiff said that he was keen to get back into the workforce (T 43), especially in some area like customer service, as long as it was only 15 hours a week, as he would struggle with more than that.

78. It was put to the plaintiff (and in submissions) that these efforts were perfunctory, and that his IT qualifications in particular would mean that he was employable.

79. This brings me to the last main credit issue, that the plaintiff’s 2001 IT qualification would be a useful tool for gaining employment. The plaintiff denied this, and said that it was completely out of date, in that the technology he had studied (such as Windows 98 and Windows 2000) had long since been superseded by the significant technological advances over the past 15 years. He denied that he had the mental capacity to upgrade or supplement that qualification:

“Q. But it's obvious, isn't it, if you had a refresher course or perhaps even two refresher courses you could bring yourself up to date?

A. If I had the mental capacity to - to enrol and re‑educate myself, that is a possibility, I could do it in a part‑time capacity.

Q. But you say you haven't got the mental capacity.

A. I'm saying I don't have the mental capacity to enrol in further education to - to update my qualifications.

Q. But you've got the mental capacity to run a company.

A. Yeah, I - I do have the mental capacity to do that, correct.

Q. In case it wasn't obvious to you, Mr Milios, I'm suggesting that you've grossly exaggerated this claim for the purposes of financial gain.

A. I disagree.” (T 91)

80. However, the plaintiff’s Internet blog site biography paints a very different picture of the plaintiff carrying out this kind of work:

“I was a teenager when the Internet was first launched in Australia and I had a 28.8k dial-up connection. After I completed my Higher School Certificate, I landed a job as a junior computer technician. The store I worked for eventually closed down after 1 year. I discovered during my time as a technician I was very good at problem solving !

In the year 2000 I completed a diploma in I.T and after graduating, I gained employment at Optus broadband helpdesk. During my employment at Optus, I developed very good customer service skills and genuinely enjoyed helping people restore their internet connection's [sic], however, the same can not be said about dealing with customer's complicated billing enquiries :)” (Exhibit 1B)

81. I am satisfied the plaintiff has considerably more skills than he has disclosed to the relevant vocational guidance assessors. This is the sort of work for which flexible hours are possible. I note that one of the jobs identified by the vocational assessment report tendered in this case was a call desk operator of this kind.

Conclusions concerning the plaintiff’s credit

82. The defendant tendered Facebook and Internet pages for the plaintiff’s Spartan olive oil products. The plaintiff’s advertising blog at (Exhibit 1B, tab 6) paints a very different picture of the plaintiff’s health, business activities, work history and computer skills to that demonstrated in the witness box.

83. The plaintiff was briefly cross-examined about some aspects of the “biography” of himself (at T 75-77) and about the current details for Spartan Health Foods Pty Ltd ACN/ABN 69 150 897 475. I note that, according to the ABN Lookup, it is not registered for GST (Exhibit 1B, tab 7). The “big shed” at East Hills (T 40) where he stores the olive oil is where he and his parents live. That address also appears on the Internet, with the statement from the business search website “Find The Company” (Exhibit 1B, tab 7) that “with one employee and $296,280 in annual revenue, the company is much smaller than and generates much less revenue than the average beverage sales and distribution company”. That employee is identified as “Andrew Milios, director”.

84. The surveillance photographs for the period 6 – 11 April 2016 (Exhibit 1B, tab 4) contains a series of photographs of the plaintiff lifting, carrying, pushing, pulling, bending, twisting and squatting. He is also seen driving a vehicle.

85. The plaintiff gives a glowing account of his IT skills in his advertising blog at Exhibit 1B tab 6. Much of this is mere puffery, but his Internet skills are certainly put much higher than was the case in his evidence to the court.

86. The above evidence significantly contradicts the plaintiff’s oral testimony. This is of significance in relation not only to his credit but to the objective evidence as to the plaintiff’s capacity for work. It does not, however, detract from my findings as to medical causation.

87. The principal basis upon which liability was challenged was that the plaintiff could not make out a case in relation to system of work and equipment.

88. When determining issues as to system of work, the finder of fact generally sets out the facts first and the expert evidence later. In the present case, due to significant defects in both experts’ reports which have resulted in these reports being of no assistance, I propose to set out the contents of these reports, and my reasons for finding that these reports have no weight and should be disregarded.

The expert evidence

89. The plaintiff served a report from H L Burn & Associates, consulting engineers, prepared on 27 November 2014 and the defendant served a report from Louise Whitby & Associates Pty Ltd prepared on 2 June 2015. Mr Meakes was somewhat dismissive of ergonomic reports. Ergonomic reports are not uncommon where the injury involves bending and twisting (see for example White v Logen Pty Ltd As Trustee for the Byrn Family Trust [2014] NSWCA 159 at [22] – [27]).

90. Neither party propounded or relied upon these reports to any significant degree during the hearing because of errors made in the facts of both reports. First, as to Mr Burn’s report, he sets out that the plaintiff was required to bend over, including tying and reinforcing for two hours before the Foreman directed him to mix cement (paragraph 6 of the Report). In paragraph 3.1, Mr Burn notes his instructions set out how the plaintiff was tying reinforcing steel on a construction job for 2 hours prior to being required to mix cement, which required him to adopt the posture typically adopted by workers assigned to steel tying duties. A photograph of this is shown at Figure 4. Comments are made at paragraph 3.2 about the need for regular breaks in periods of activity.

91. Ms Whitby has made the same mistakes of fact. At paragraph 25 of her report, she sets out that the accident occurred when the Plaintiff was engaged in labouring on a construction site utilising post tensioning system for slab construction and was “reportedly engaged in laying and positioning tendons for approximately 2 hours before being directed by the Foreman to mix a small quantity of cement – the exact quantity is unknown”.

92. Both these statements of the Plaintiff’s work are agreed by the parties to be incorrect. The Plaintiff was not performing this work for 2 hours, or indeed at all. The work system which is asserted to be unsafe is that he was asked to mix sand and cement on site without assistance. His injury is asserted to have occurred because he was performing this task alone for 35 minutes, as opposed to performing it with another workman, not because he had spent two hours beforehand bending over tying steel.

93. Ms Whitby’s report suffers from the additional problem that she was given no details on the nature of the construction, the number of workers engaged at the site (page 4), the instructions given to the Plaintiff (paragraph 12), his training (paragraph 12), or even his height (paragraph 7).

94. Mr Meakes relied upon what he asserted were helpful statements in Ms Whitby’s report, such as her reference at pages 7 and 34 to the causal relationship between heavy physical work, awkward postures and back injury. Those are not matters requiring additional expertise, given the medical reports in these proceedings; nor do I find her surmises, at pages 4, 7 and 12, to be anything other than surmises. Her report is of no assistance to the Plaintiff.

95. The sole passage relied upon by Mr Meakes in relation to Mr Burn’s report is the section on preventability, in which he sets out methods that he had observed “and on occasion used myself, for mixing small quantities of concrete”. However, the only relevance to these proceedings of any of the four steps he outlines is that materials are mixed on a pallet using a hoe type tool.

96. Mr Burn goes on to state that a risk review on the frequency with which small quantities of concrete mix are required would be advisable and that, where there was regular use of concrete, the acquisition of a mobile concrete mixer would be warranted. These observations have nothing to do with the facts of this case. It is clear from the evidence that mixing concrete was not a frequent activity onsite. These observations of Mr Burn are of no assistance to the plaintiff.

97. Mr Burn states, in his conclusion, that manually mixing the ingredients using a short handled shovel is heavy manual labour but all he can recommend is a risk review.

89. These are significant problems in relation to the principal issue in these proceedings, namely, whether the defendant breached its duty of care to the plaintiff by failing to provide a safe system of work and/or appropriate equipment. These problems were not, however, resolved by a ruling during the hearing as to the admissibility of Mr Burn’s report (or, for that matter, Ms Whitby’s report, containing the same mistake) because none was sought, even during addresses.

An application for a ruling on admissibility after judgment has been reserved

99. After I reserved judgment on 25 November 2016 I received an email from Mr Halligan seeking a ruling that the whole of Mr Burn’s report (and not just the section or sections relating to the two hours of work) should be deemed inadmissible.

100. At the commencement of the hearing, Mr Halligan had foreshadowed an application that Mr Burn’s report not be admitted into evidence by reason of that error. I admitted the report subject to objection on the basis set out at T 4, namely subject to the taking of objections at a later stage:

“HER HONOUR: Is there any objection to the medical and expert reports? Yes or no?

HALLIGAN: Yes, as regards the expert, your Honour.

HER HONOUR: Which expert?

MEAKES: It's the engineer, Mr Ian Byrnes [sic], your Honour.

HALLIGAN: The engineer.

HER HONOUR: Is it to the whole or the part or what? What's the basis of the objection?

HALLIGAN: The basis of the objection is the material upon which he has drawn assumptions.” (T 4)

101. Mr Halligan specifically drew my attention to this section of the transcript in these additional submissions. As Mr Halligan notes, I said to him (at T 7) that his position was “safe” and that he could identify the whole or part and the specifics of the objections at a later stage.

102. The evidence was then completed on both sides, but nothing was heard from the defendant as to the extent or the basis for the objection to Mr Burn’s report. No application was made to exclude this report, either in whole or in part.

103. Both parties prepared an outline of submissions. Mr Meakes submitted that the portion of the report which was not incorrect (as to preventability) could still be relied upon, as all that Mr Halligan had said, at paragraphs 6 and 7, was:

“6 There is no evidence at all of the plaintiff working 2 hours cutting steel. Indeed Burns [sic] relies on no statement of the plaintiff in support. Indeed the plaintiff has never been in contact with Burns [sic] (T 52.18)

7. The report and opinion of Burn is objectionable unless his assumptions are conceded or otherwise formally proved. Any factual assumptions underlying the witness’s opinion must be clearly identify and articulated. (Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705) [sic] Apart for [sic] the use of a shovel no relevant fact has been proved.”

104. As is noted above, the defendant’s own expert had made the same error. I assumed that both parties were proceeding on the basis that these sections were wrong but that the balance of the reports could still be relied upon. However, in the course of submissions, Mr Halligan submitted that Mr Burn’s report, but not his own report, should be deemed inadmissible in its entirety by reason of this error, despite not having sought a ruling to this effect. He did not, however, seek to withdraw his own expert’s report.

105. This kind of muddle about experts’ reports was one of a series of difficulties arising from both parties tendering a great deal of material which had not been addressed in evidence or submissions. I said to Mr Halligan:

“HER HONOUR: I'm faced with the difficulty of making findings of fact in circumstances where all I've got is the plaintiff's evidence and that's all I've got and I'm expected to be able to read and analyse the factual material in circumstances where you say that there are areas of fact, particularly in relation to the half an hour with the shovel. You say that there's irrelevancies in Mr Byrne's report, but your opponent says exactly the same thing about yours.

HALLIGAN: Yes, well, your Honour, if I may restate what I said before, we don't rely upon‑‑

HER HONOUR: You don’t rely on your own expert's report?

HALLIGAN: Well, not particularly, your Honour.” (T 97)

106. I made the same point to Mr Meakes when he said he was relying upon the plaintiff’s expert report:

“HER HONOUR: Interestingly enough I can't help noticing that Ms Whitby has the same note, that he was reportedly engaged in laying and positioning tendons for approximately two hours before being directed by the foreman to mix a small quantity of mortar grout. So she's got the same history as Mr Byrnes [sic]. They both got the same history. Is that right?

MEAKES: Your Honour, that's obviously from the material that she got from the letter of instruction from Rankin Ellison.” (T 108)

107. Mr Halligan does not refer, in his brief written submissions, to the principles applicable to an application to reopen in relation to admissibility issues after judgment has been reserved. I briefly set out those principles as follows.

108. The fundamental principle to be applied in determining whether to grant an application to reopen a hearing after judgment has been reserved is whether the interests of justice are better served by allowing the application or rejecting it: Urban Transport Authority of New South Wales v Nweiser (1992) 28 NSWLR 471 at 476; Smith v New South Wales Bar Association (No 2) (1992) 176 CLR 256 at 266–7. The principal issue is one of prejudice to the other party. No such objection is raised here because Mr Meakes consents to the defendant seeking this further ruling.

109. In EB v CT (No 2) [2008] QSC 306 at [2]-[5], Applegarth J summarised the relevant principles for the admission of fresh evidence. Greater liberty should be granted where there has been oversight by a party. However, Mr Halligan does not admit to there being any oversight, in that he states:

“It appears clear that the admissibility question of the Burn report has not been finally resolved. Accordingly the Defendant seeks that that [sic] issue be discussed in the reasons for judgment.”

110. Mr Halligan’s submissions suggest that, in drawing to the parties’ attention that I had a great deal of untested evidence, including that of the parties’ experts, I was imposing a requirement that the experts be cross-examined. That was not the point I was making. My concern was that both parties tendered large bundles of conflicting medical, financial and expert material where I did not have the benefit of cross-examination on these conflicting issues and the parties had not deal with this material in submissions. It was not necessary for the parties to cross-examine the experts, but it was necessary for them to make submissions challenging (or seeking to uphold) the admissibility of part or all of the expert reports in the course of the hearing rather than leaving this issue for me to determine.

111. As previously noted, I am satisfied that both reports are seriously flawed by the same error, namely the recital of wrong facts about the plaintiff’s work activities for the two hours immediately prior to mixing the concrete. This defect renders both reports valueless. The only value these reports have is to corroborate my findings as set out below that what expert evidence there is confirms my findings in favour of the defendant in relation to the system of work and equipment provided to the plaintiff. Given the belated nature of the defendant’s submission for the Burn report to be excluded, and the failure of the parties to address the complicating factor of the impact of Ms Whitby making the same mistake, I propose to limit my findings on admissibility to the regarding both reports as being without any evidentiary weight, rather than strike out the whole or any part of them.

The relevant principles of law concerning safe systems of work and/or equipment

112. The relevant principles to apply to a plaintiff bringing a claim for injury suffered in the course of his or her employment are for the common law as unaltered by the Civil Liability Act 2002 (NSW) but as varied by the Workers Compensation Act: Kubovic v HMS Management Pty Ltd [2015] NSWCA 315 at [5] – [7].

113. The nature of the non-delegable duty an employer owes is set out by the High Court in Czatyrko v Edith Cowan University (2009) 214 ALR 349 at [12]:

“An employer owes a non-delegable duty of care to its employees to take reasonable care to avoid exposing them to unnecessary risks of injury. If there is a real risk of an injury to an employee in the performance of a task in a workplace, the employer must take reasonable care to avoid the risk by devising a method of operation for the performance of the task that eliminates the risk, or by the provision of adequate safeguards. The employer must take into account the possibility of thoughtlessness, or inadvertence, or carelessness, particularly in a case of repetitive work.” [Citations omitted]

114. Mr Halligan submitted, and I accept, that in assessing whether an employer has breached its duty of care to an injured employee, the Court should take into account the principles set out by Mason J in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47.

115. When determining causation in relation to the circumstances of the accident and breach of duty, the plaintiff is required to show, on the balance of probabilities, that the breach of duty of care by the defendant caused the injury pleaded, which is essentially a fact-driven question: March v E & M H Stramare Pty Ltd (1991) 171 CLR 506.

116. In Patrick Stevedores Operations (No 2) Pty Ltd v Hennessy [2015] NSWCA 253, Leeming JA explained that it was necessary for a plaintiff to prove that had alternative measures, such as a variation in system of work or equipment been provided to the plaintiff, it is likely that the injury would not have occurred. His Honour stated at paragraphs [95]-[96]:

“[95] Unlike duty and breach, the inquiry as to causation is “wholly retrospective [and] ... seeks to identify what happened and why”: Vairy v Wyong Shire Council [2005] HCA 62; 223 CLR 422 at [124]; Warth v Lafsky [2014] NSWCA 94; 2014 Aust Torts Rep 82-166 at [61]. Putting to one side s.5D(1)(b) (which was not relied upon), causation is wholly factual and turns on the plaintiff’s proof on the balance of probabilities that the failure to take the precaution was a necessary condition of the occurrence of harm: Strong v Woolworths Ltd [2012] HCA 5; 246 CLR 182 at [18]; Wallace v Kam [2013] HCA 19; 250 CLR 375 at [14].

[96] Proof of the requisite causal link between those omissions and an occurrence required consideration of the probable course of events had the omissions not occurred: Strong v Woolworths Ltd at [32]. It was accordingly necessary for Mr Hennessy to prove that had an intermediate step been installed, then it is likely that he would not have slipped and fallen on the evening of 21 March 2005.”

117. Applying these principles to the facts of this case, the plaintiff was asked to mix a quantity of concrete with a shovel for about 35 minutes. There is no suggestion (and I include here, even the otherwise discredited reports of the experts) that there is anything wrong with mixing concrete on a pallet with a shovel. Mr Burn’s suggestion of a concrete mixer is predicated upon this being advisable where the task of mixing concrete is performed on some relatively frequent basis, but that is not the case. There is no suggestion that the shovel was loaded and suspended; the plaintiff was only mixing the cement. This involved a twisting motion but the plaintiff had been trained in the performance of twisting work for his white card. Although the plaintiff was told the site managers wanted to catch up on work, he had not been asked to perform the task with extra speed, nor was he under any pressure to do the work by a certain time, or told to perform it in some dangerous or unusual way.

118. Nor is there evidence, in my view, that the equipment he was told to use was inadequate or in some other way a factor in his injury. Although Mr Meakes opened on the basis that I would be told that the equipment the plaintiff was provided with was a shovel that was “inappropriate”, this evidence was never led from the plaintiff. I have disregarded the evidence of the experts on this issue, as noted above.

119. The task of mixing the concrete was a one-off task, required for sealing a batch of pockets. There is no evidence before me to suggest that the task of mixing the concrete as described, for the period identified by the plaintiff is too long or too repetitive. Using a shovel to mix a small quantity of concrete at ground level or on a pallet is not an obviously burdensome manual task.

120. While I am reluctant to embark upon observations of the “common sense” variety, it is clear (even from the discredited reports of the experts) that the task of mixing concrete is one of a series of repetitive and strenuous jobs on building sites which require bending, stretching and repeated movements, but which are part of the site workload.

Breach of duty of care

121. The employer’s non-delegable duty of care is to take reasonable care to avoid exposing workers to unnecessary risks of injury. If there is a real risk of injury to an employee of a task, the employer must take reasonable care to avoid the risk by devising a method to eliminate the risk or alternatively to provide adequate safeguards.

122. The first question is whether a reasonable person would have foreseen that the system of work for the plaintiff involved a real risk of injury.

123. The plaintiff was obliged to mix two parts of cement to six parts of sand, an activity lasting 30 – 35 minutes. It was building site work which was classified as a small job according to Mr Reyes (Exhibit 1 p. 221). The plaintiff had been trained in manual handling and posture in order to obtain a white card.

124. This work was a “simple uncomplicated” (to use the description in Van der Sluice v Display Craft Pty ltd [2002] NSWCA 204) operation, involving the stirring of concrete, in the normal system of work. It did not involve the lifting of heavy weights, or special skill or strength, or some foreseeable risk from the very nature of the work. While the plaintiff suffered injury doing the work, the standard of reasonable care is not the same as a guarantee of safety (Liftronic Pty ltd v Unver (2001) 75 ALJR 867). The task the plaintiff was performing was simply one of the many repetitive tasks on a building site requiring a normal degree of strength.

125. Causation in relation to system of work is assessed retrospectively and is fact-based. On the facts identified in this case as relevant, even on the plaintiff’s version alone, a reasonable person in the place of the employer would not have foreseen that asking an employee to mix concrete on a pallet for the period of time identified by the plaintiff involved a real risk of injury.

126. The plaintiff accordingly has failed to establish that the defendant was negligent.

Concluding remarks

127. As the plaintiff has failed to establish, on the balance of probabilities, that the failure to take the precautions alleged to be reasonably necessary to provide a safe system of work was a necessary pre-condition of the occurrence of the injury, judgment will be entered for the Defendant.

128. I briefly repeat my findings above that, as to medical causation, the plaintiff has established that the injuries and disabilities the plaintiff complains of were the result of the accident the subject of this claim. The plaintiff must establish that the asserted ongoing disabilities are genuine, there being challenges to the plaintiff’s claims of ill health and inability to work, based on surveillance video and failure to produce financial records. I am satisfied that the defendant has made out those challenges and established that the plaintiff has a significant residual capacity to work and that the claim for damages, were it to be made, would have to reflect that capacity. However, that is insufficient to establish liability in the absence of breach of duty by the defendant.

Contributory negligence

129. In the event that I have erred in my findings as to liability, I note my finding would have been that there is no contributory negligence. The plaintiff was following his employer’s instructions. He had only worked there for three months and this short period of time was the whole of his construction site experience.

Failure to mitigate

130. While the plaintiff bears the onus in relation to failure to mitigate under s 151L, the defendant is obliged to particularise that failure.

131. No particulars were provided in the defence and it was not until the closing submissions that Mr Halligan, under the heading “Lost Earning Capacity”, referred to the plaintiff’s failure to seek employment in the form of “utilisation of his IT skills”.

132. There is considerable overlap between the complaint of failure to mitigate and economic loss.

133. Failure to provide particulars of mitigation is not an acceptable form of pleading, whether the other party bears the onus or not. In Cicino v F & C Tassone & Sons Pty Ltd [2016] NSWDC 191 at [134], Dicker SC DCJ observed that the failure to mitigate had not been particularised. The plaintiff cannot know the case it has to meet in relation to mitigation in the absence of particulars.

134. Accordingly, I do not propose to make any findings in this regard.

Assessment of damages

135. In view of my findings on liability, these observations are brief.

136. The plaintiff worked for the defendant as a skilled labourer/post-tensioning technician performing heavy manual duties including handling equipment, heavy lifting, twisting and bending and other physical activities of the kind commonly observed in the construction industry.

137. The plaintiff was working 38 hours per week and earning $1,400 gross per week (which counsel for the plaintiff notes, in the schedule of past loss of income, was approximately $1,040 net per week).

138. I have read the Occupational Health Assessment Centre report (13 August 2014) which concludes that, but for the injuries he received, the plaintiff says that he would more likely than not have continued to work full time for the defendant. I do not accept that this is the case. I note the brief reference to the plaintiff’s “home-based business” on page 2 of this report (Exhibit A, tab 22), but this information was obtained from the plaintiff and had “not been verified by external sources”. The plaintiff’s description of his home-based business, as set out on page 4 of the report, paints a gloomy picture which is at variance with the material online which has been tendered by the defendant. He did not tell the vocational assessors of his passion for fine food or his interest in holistic products.

139. Despite this handicap, the astute vocational guidance assessors correctly identified the plaintiff’s prior work experience included being a call centre operator, which his Internet biography discloses he did for three years. Another of the proposed jobs was that of importer or exporter, which would seem appropriate, since this is what he is currently doing. I am satisfied that these reports accurately reflect the plaintiff’s substantial capacity for employment.

140. I also note, in relation to the plaintiff’s evidence that his 2001 IT diploma was obsolete, that there is nothing in this report to support this. To the contrary, it is given significant weight by the vocational assessors and also is a highlight on the plaintiff’s website biography.

Past economic loss and superannuation

141. I note the agreed figure for comparable earnings and retirement date, namely $1,050 per week until the plaintiff’s 67th birthday (T 112).

142. The plaintiff provided a schedule of damages at the commencement of the hearing as follows:

Past Economic loss

12.3.07 – 12.6.07 (12 wks) @ $1,040 pw (incl lost overtime) - $12,480

13.3.07 – 19.11.07 (36 wks) @ $140 pw - $5,040

20.11.07 – 1.5.09 (75 wks) @ $240 pw - $18,000

2.5.09 – 23.11.16 (393 wks) @ $1,040 pw - $408,720

$444,240

Past superannuation loss @ 11%

$48,866

Future economic loss/Loss of earning capacity

$1,500 pw until aged 67 yrs (32 yrs)/Mult 845 (after allowance for residual earning capacity) less 15% for vicissitudes

$861,900

Future superannuation loss @ 12%

$103,428

Total

$1,458,434 plus Fox v Wood

Plus costs and disbursements

143. The defendant also provided a schedule:

Past Economic loss

- 12 March 2007 to 19 March 2007 @ $775pw (1 week)

- 20 March 2007 to 19 November 2007 @ $200 pw (35 weeks)

- 1 July 2012 to 30 June 2013 @ $800.00 pw (52 weeks)

Total $49,375.00 – rounded up to $50,000.00

$50,000

Superannuation on past economic loss – 11%

$5,500

Future economic loss

Nil

Superannuation on future economic loss

Nil

Fox v Wood

Nil

Total

$55,500

144. I first consider the issue of past economic loss and superannuation.

Past economic loss and superannuation

145. The plaintiff has not been in remunerative employment since 1 April 2010 and claims an average loss (taking into account CPI indices) of $1,050 net per week to date (341 weeks).

146. The plaintiff’s evidence is that on the balance of probabilities he would have remained in the employ of the defendant or another company within the construction industry as an eventual skilled labourer up to the date of trial.

147. I would not have accepted this evidence. As the plaintiff’s work history set out on his blog on the internet shows, the plaintiff’s involvement in the construction industry was brief. He is an intelligent man with many other interests and skills, including IT skills. Another difficulty lies in determining the degree to which the plaintiff was genuinely unable to work as a result of his ongoing back problems or, more recently, because of his passion for his olive oil business.

148. The plaintiff was employed full time at Bestline from the period shortly after he left the employ of the defendant. Accordingly, if I were to award damages, I would allow the first two of the sums set out by the defendant. However, the plaintiff ceased work in April 2010, following the work injury when he was lifting a 30kg weight with a colleague, and I am satisfied that the pre-existing back injury caused by the March 2007 incident was exacerbated.

149. Accordingly, I would award the weekly rate set out by the plaintiff at paragraph 35 of the written submissions for the period 1 April 2010, being the sum of $1,050 net per week. However, I would not award that sum all the way to trial. I am satisfied that the plaintiff does have a considerable residual earning capacity; and that since the performance of his surgery on 13 June 2012, he has materially recovered.

150. Given the plaintiff’s medical history, I consider he has been fit for some form of employment since he last saw Dr Bentivoglio and Dr Drummond. His last appointment with Dr Bentivoglio was on 10 February 2014 and with Dr Drummond on 27 March 2014.

151. Accordingly, I would reduce his entitlements to past economic loss to this date.

152. However, that does not mean that the plaintiff’s past economic loss for that period (or, for that matter, his future economic loss) should be nil.

153. One of the difficulties I have had in determining these issues has been the position taken by the defendant in assessing the plaintiff as having no economic loss following his departure from the defendant’s employ, save for the year following his surgery (I note the rationale for these periods is not explained).

154. I would find that the plaintiff has suffered a 30% diminution in his earning capacity and would be entitled to 30% of the weekly sum of $1,050 per week, up to the date of trial, together with superannuation at the rate agreed by the parties to be applicable (11%).

Future economic loss and superannuation

155. I do not accept the plaintiff’s evidence that he would have remained in the construction industry. His future clearly lies elsewhere. It is difficult to say what his earning capacity in the future will be, given the uncertainties of the kind of business he is likely to be running, in relation to his olive oil company, but he will always be employable for his IT skills, if for nothing else. The plaintiff was not entirely frank about these activities. I note, for example, the six-figure sum given for the home-based company’s annual turnover.

156. Given the limited information I have, I would have allowed a buffer, inclusive of superannuation, of $100,000.

Fox v Wood

157. The defendant puts this at $0. The plaintiff’s submissions do not include a figure for this sum. Any amount awarded would, in any event, depend upon the calculation of the economic loss figures set out above.

Orders, Costs and Liberty to Apply

1. Judgment for the Defendant.

2. Plaintiff pay Defendant’s costs.

3. Liberty to restore in relation to costs.

4. Exhibits retained for 28 days.

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Decision last updated: 13 December 2016