Opoku v P and M Quality Smallgoods P/ L and othersOpoku v Kaybron No 6 P/L

[2012] NSWSC 478

Supreme Court

New South Wales

Case Title:	Opoku v P & M Quality Smallgoods P/ L & othersOpoku v Kaybron No 6 P/L
Medium Neutral Citation:	[2012] NSWSC 478
Hearing Date(s):	30 April 2012; 1 - 4 May 2012
Decision Date:	14 May 2012
Jurisdiction:	Common Law
Before:	Adamson J
Decision:	(1) Direct the parties to deliver to my chambers short minutes of order within seven days which reflect these reasons. (2) Stand the matter over for the making of the orders referred to in Order 1 above, and, in the absence of agreement between the parties, submissions on costs.
Catchwords:	TORT - negligence - claim for work injury damages under Workers Compensation Act - duty of care - employer's non-delegable duty of care to provide safe system of work - where employer claims no capacity to discharge its duty of care by reason of corporate arrangement - contributory negligence - apportionment between joint and several tortfeasors - contribution and/or indemnity between joint and several tortfeasors LIMITATION - discoverable fact - whether the plaintiff was required to take steps to confirm the true identity of his employer
Legislation Cited:	- Workers Compensation Act 1987 - Civil Liability Act 2002 - Limitation Act 1969 - Civil Liability Amendment Act 2008
Cases Cited:	- Leighton Contractors Pty Limited v Fox [2009] HCA 35; 240 CLR 1 - Kondis v State Transport Authority [1984] HCA 61; 154 CLR 672 - TNT Australia Limited v Christie [2003] NSWCA 47; 65 NSWLR 1 - Andar Transport Pty Limited v Brambles Limited [2004] HCA 28; 217 CLR 424 - Unilever Australia Limited v Pahi [2010] NSWCA 149 - J Blackwood & Son v Skilled Engineering [2008] NSWCA 142 - Valley Council v Macpherson [2011] NSWCA 422 - Thompson v Woolworth's (Queensland) Pty Limited [2005] HCA 19; 221 CLR 234 - Bankstown Foundry Pty Limited v Braistina [1986] HCA 20; 160 CLR 301 - Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; 59 ALJR 492 - Bostik Australia Pty Limited v. Liddiard [2009] NSWCA 167 - Ramsay v Watson [1961] HCA 65; 108 CLR 642 - Paric v John Holland [1985] HCA 58; 59 ALJR 844 - Kempsey District Hospital v Thackham (1995) 36 NSWLR 492
Texts Cited:
Category:	Principal judgment
Parties:	In proceedings 316304 of 2008: Kofi Opoku (Plaintiff) P & M Quality Smallgoods Pty Limited (First Defendant) Kaybron No. 15 Pty Limited (Second Defendant) Kaybron No. 17 Pty Limited (Third Defendant) Trustees of the Homebush Unit Trust (Fourth Defendant) In proceedings 333604 of 2009: Kofi Opoku (Plaintiff) The Nominal Insurer by its agent QBE Workers Compensation (NSW) Pty Limited
Representation
- Counsel:	Counsel: K Andrews/S Thornton (Plaintiff) M Williams SC/P Perry (1st and 4th Defendants) J Dodd (The Nominal Insurer by its agent QBE Workers Compensation (NSW) Pty Limited)
- Solicitors:	Solicitors: NSW Compensation Lawyers (Plaintiff) HWL Ebsworth (1st and 4th Defendants) Kayden Boriss (The Nominal Insurer by its agent QBE Workers Compensation (NSW) Pty Limited)
File number(s):	2008/316304;  2009/333604;
Publication Restriction:

JUDGMENT

1. Kofi Opoku, who was born on 14 June 1960 in Ghana, claims damages for personal injuries he sustained on 1 May 2004 when he was working as a cleaner in the boning room of a meat processing factory.

2. The plaintiff has commenced two sets of proceedings relating to the same events against five separate defendants. The proceedings were heard together. The first set of proceedings were brought against P & M Quality Smallgoods Pty Limited (P & M), Kaybron No. 15 Pty Limited (Kaybron 15), Kaybron No. 16 Pty Limited (Kaybron 16) and the trustees of the Homebush Unit Trust (HUT). The second set of proceedings was brought against Kaybron No. 6 Pty Limited (Kaybron 6). Kaybron 15 and Kaybron 16 were deregistered and proceedings were discontinued against them. Kaybron 6 was deregistered and the pleadings were amended to substitute the Nominal Insurer by its agent QBE Workers Compensation (NSW) Pty Limited (QBE).

3. QBE has cross-claimed against P & M and HUT for indemnity pursuant to s 151Z(1)(d) of the Workers Compensation Act 1987. QBE has cross-claimed against the plaintiff in respect of payments made to the plaintiff pursuant to s 151Z(1)(b) of that Act.

Facts

1. The plaintiff started working for P & M on 20 October 1999 as a cleaner, shortly after his arrival in Australia from Ghana, where he operated a tailoring business. His hours of work at P & M were from 7.30 pm until about 3.00 am.

The arrangements made by P & M for its workforce

1. P & M conducted a business of producing and selling processed meats, which it operated from premises and plant which it owned at 18 Hume Highway, Chullora.

2. Up until about 2003, P & M employed all the staff engaged in its operations. In about 2003 it decided to arrange for another entity, HUT, to employ its supervisory and managerial staff, while P & M itself continued to employ the processing and cleaning staff. The purpose of this was, according to George Ujvary, who was then the Chief Financial Officer of P & M, to reduce its workers' compensation premiums. The workers' compensation premiums were higher for workers engaged in processing meats because of the relatively higher dangers associated with their work, as compared with supervisory and office staff.

3. In 2004, P & M decided to minimise its workers' compensation premiums still further by dividing its workforce into smaller groups of workers so that thresholds pertaining to payroll in the calculation of workers' compensation premiums were not exceeded. To that end, it caused some 40 companies to be incorporated, each with the name Kaybron and a numeral, to distinguish each company from the others. Each of the Kaybron companies would employ a group of workers. It is accepted that the plaintiff was employed by Kaybron 6.

4. None of the Kaybron companies had a bank account or employed anyone in a supervisory or managerial capacity. Kaybron 6 did employ persons who were senior to the plaintiff but junior to HUT supervisors as either team leaders, such as Charles McCarthy, and leading hands, including Eric Osei-Bowadu and George Salloum.

5. Such persons had limited power to give directions to cleaners, such as the plaintiff. Group Certificates issued to such workers were issued in the name of the Kaybron company, the payments by Kaybron companies were journal entries only, the funds for the actual payments being provided by P & M. The workers who supervised the Kaybron workers were employed by HUT, although as referred to above Kaybron 6 employed a Team Leader who had limited supervisory duties.

6. By 2004, P & M had no employees. Each of the 1,100 persons who had formerly been employed by it were now employed either by HUT, in the case of managerial or supervisory employees, or by a Kaybron company in the case of manual workers such as boners and cleaners.

7. Throughout this period P & M, HUT and the Kaybron companies had common directors: Paul Lederer and John Hunt.

8. The relevant legislation was amended on 1 July 2007 to take away the incentive for the structure adopted by P & M. In July 2010, as a result of the amendments, P & M reverted to the original situation and re-employed all of the workers engaged in its operations. All of the Kaybron companies were then deregistered, the reason for their existence having ceased.

9. As at the date of the accident, 1 May 2004, the plaintiff's Group Certificates were issued in the name of Kaybron 6.

10. Answers to interrogatories administered to P & M establish the following:

    (1)P & M occupies the entire factory premises and owns the conveyor against which the plaintiff says that he fell, resulting in his injuries;

    (2)Kaybron 6 was responsible for cleaning the conveyor at the end of the production shift; and

    (3)Kaybron 6 occupies the area in relation to cleaning systems for the conveyor and the boning room in which it is situated.

11. The plaintiff alleges that Kaybron 6 was his employer. No other party alleges that the plaintiff was employed by anyone other than Kaybron 6. Kaybron 6 admits that it was the plaintiff's employer.

The plaintiff's duties

1. The plaintiff's duties included cleaning the floor and the conveyor belts in the boning room. The tasks were carried out in the following sequence. First, the floor surrounding the conveyor belts was cleaned. Then, the conveyor belt would be rinsed with automatic sprinklers which were fitted to the belt. The water would loosen debris on the belt. Then soap would be sprayed through automatic sprinklers onto the belt. Finally, the conveyor belt would be hosed down with water from a hose carried by a cleaner, such as the plaintiff. The hosing down of the conveyor belt was designed to remove any vestiges of meat that remained on the conveyor. The hosing down was conducted while the conveyor was moving. While the plaintiff was working he wore rubber boots supplied by P & M.

2. The plaintiff received instruction on how to perform his cleaning duties from the time he was first employed by P & M. Mr. Rajesh Ram was his supervisor. Mr Ram was originally employed by P & M but in 2003 he became employed by HUT. Neither the way of performing his duties, nor the conveyor belt itself, changed during the period of his employment. He was instructed to perform the hosing of the conveyor belt while the conveyor was still moving. This is what he was doing when the accident occurred.

The circumstances of the accident

1. The plaintiff was about to finish his night shift on 30 April/1 May 2004. He was standing near the conveyor belt when he noticed a piece of meat on the conveyor. He endeavoured to dislodge the piece of meat with water from the hose. However, as he did so, he slipped on the floor and the fourth finger of his left, non-dominant, hand was injured when it became caught at the junction between the conveyor belt and one of the rods supporting the conveyor apparatus. His co-worker, Mr Osei-Bowadu, a leading hand who was passing the area, came to assist him. The plaintiff's finger was bleeding profusely. Mr Osei-Bowadu took him to a separate room, reported the incident to Sasa McCarthy, the plaintiff's Team Leader, who was also assisted by one of his sons. The incident was also reported to Mr Newman, the factory manager. Mr Osei-Bowadu then drove the plaintiff to Bankstown hospital for treatment.

2. Mr Osei-Bowadu's recollection was that he saw the plaintiff squatting beside the conveyor belt before he called to say that he had injured himself. I do not consider that it matters whether the plaintiff was sitting or crouching beside the conveyor belt, in light of my findings below.

3. The plaintiff was cross-examined by reference to various statements, including a report of injury, which he had signed, which gave a somewhat, but not entirely, different version of how the accident happened. Although I have reservations about the plaintiff's credibility in so far as it affects his evidence of pain and incapacity, I accept that his hand came into contact with the conveyor belt while it was moving and while he was hosing it. I reject the suggestion that the plaintiff was attempting to dislodge a piece of meat from the conveyor with his hand. I am satisfied on the balance of probabilities that his hand came into contact with the conveyor because the plaintiff slipped, either when he was standing or when he was crouching. The contact was accidental and not deliberate. Any differences between the plaintiff's oral evidence and statements he has signed which were not interpreted are explicable on the basis that he is not particularly literate in English.

4. I accept that the plaintiff's command of English has improved since the date of the accident and the time when the incident report form was completed. The improvements have come about in part by the fact that he lives in Dubbo with his girlfriend, with whom he speaks English and he has done a TAFE course in Dubbo to learn basic English and computer skills.

After the accident

1. The plaintiff was seen at 4.05 am and treated at the Emergency Department of Bankstown hospital. An X-ray of his left fourth finger revealed an undisplaced fracture through the tuft of the distal phalanx but no other bony injury. His finger was sutured with nine stitches. He was discharged to be reviewed by his general practitioner for removal of the stitches in ten days. The plaintiff was driven home by a friend.

2. About ten days after the accident, the stitches were removed by Dr Ghulam Sachawars, a general practitioner. The cut opened up again and had to be dressed. Dr Sachawars referred the plaintiff to Dr Simon McKechnie, a neurosurgeon, who saw him on 5 June 2004. Pain relief was prescribed.

3. Dr Sachawars also referred the plaintiff to a hand surgeon, Dr James Masson, who saw him in July 2004. Dr Masson did not consider surgery to be indicated. In his report of 21 July 2004 he opined:

   "...I can see no reason why he could not be back at work at least in some capacity if not his normal capacity as it has been over two months since his injury."

4. Dr Masson reviewed the plaintiff on 23 August 2004. He reported to Dr Sachawars in the following terms:

   "Mr Opoku has had some improvement in his sensitivity with the use of Opsite. I have explained to Mr. Opoku that he can always expect to have some discomfort in this finger due to his nerve injury but I do not believe that surgery has any place in his management. I think that Mr. Opoku should return to work on normal duties."

5. The plaintiff's employment was terminated on 16 September 2004 by letter on the letterhead of P & M, under the hand of a Human Resources Manager who was apparently employed by P & M. There is no reference in this document to Kaybron 6.

6. Later in 2004, the plaintiff consulted Dr Guirguis, who since that time has regularly provided medical certificates certifying his unfitness for work. The plaintiff has continued to consult Dr Guirguis, who practises from Lidcombe, every six weeks or so notwithstanding that the plaintiff has been living in Dubbo for some years.

7. The plaintiff has consulted medical practitioners of various specialties both for reassessment and medicolegal assessment. He was referred for medicolegal assessment to Dr Paul Curtin, a plastic surgeon, who opined in a report dated 4 October 2005:

   "I am unable to account for the extreme symptoms of sensitivity displayed by this man. Even in cases where there is known injury to the digital nerve, it is always possible to carry out a gentle examination to locate the area of maximum sensitivity. Although only a visual examination was possible, nevertheless there was no clear evidence of any injury to his digital nerve. One would also normally expect to find a degree of permanent stiffness in an affected part that was apparently excluded from normal use. There was no evidence of any such stiffness in this case. I would not recommend amputation of his injured left ring finger. Such an operation would result in division of both digital nerves and the likelihood of deterioration in his symptoms. It seems likely there are strong psychological issues involved here, and I believe that any surgical intervention on this mans [sic] finger would be unwise."

8. The plaintiff has not attempted to obtain any employment, whether remunerative or otherwise, at any time since the accident. He tried to return to work at P & M about three months after the accident but found that he was unable to continue. He has received workers' compensation payments since the date of the accident.

9. The plaintiff was a passenger in a motor vehicle accident in July 2006 which caused him to suffer an injury to his neck which troubled him for a short period of time and from which he recovered.

10. The plaintiff subsequently moved to Dubbo because of the lower cost of living. He presently lives with his girlfriend, Sizakuhle Ndlovu.

Liability

Whether each defendant owed the plaintiff a duty of care

Whether Kaybron 6 owed a duty of care to the plaintiff and the content of that duty

1. As appears from the narrative above concerning the various defendants, P & M was, prior to the change in its arrangements in 2004, the plaintiff's employer. P & M, as the plaintiff's former employer, owed him a non-delegable duty of care for so long as it was the plaintiff's employer. In 2004, P & M arranged for the plaintiff to be employed by Kaybron 6. Kaybron 6 did not employ supervisors or managers and it did not have a bank account or resources of its own. Accordingly, by design, it was neither in a position to discharge any duties of care to the plaintiff, nor to remunerate him from its own resources. However, in light of the pleadings, and the facts that Kaybron 6 paid the plaintiff's remuneration during the relevant period and appeared on the pay slips and group certificates, I find that Kaybron 6 was the plaintiff's employer.

2. As the plaintiff's employer, Kaybron 6 owed a non-delegable duty to the plaintiff to take reasonable care, and to ensure that reasonable care was taken, to provide him with a safe place of work, a safe system of work and safe plant and equipment: Leighton Contractors Pty Limited v Fox [2009] HCA 35; 240 CLR 1, Kondis v State Transport Authority [1984] HCA 61; 154 CLR 672 and TNT Australia Limited v Christie [2003] NSWCA 47; 65 NSWLR 1.

3. Kaybron 6 submitted that it had a "bare non-delegable duty" and had "no opportunity to change the workplace or system of work". It is not clear what is meant by the word "bare" in that context. That Kaybron 6 had no present capacity to discharge its duty to its employees does not lessen the duty it owed. As the plurality (Gleeson CJ, Gummow, Hayne, and Heydon JJ) said in Andar Transport Pty Limited v Brambles Limited [2004] HCA 28; 217 CLR 424 at [34]:

   "[T]he duty is imposed upon all employers, however the business be formed or structured. As Lord Wright noted in Wilsons and Clyde Coal Co Ltd v English:

   [T]he whole course of authority consistently recognizes a duty which rests on the employer and which is personal to the employer, to take reasonable care for the safety of his workmen, whether the employer be an individual, a firm, or a company, and whether or not the employer takes any share in the conduct of the operations." [Emphasis added]

4. I do not need to consider the operation of the Civil Liability Act 2002, apart from s 5Q, since civil liability for compensation under the Workers Compensation Act is excluded from its operation: Civil Liability Act s 5A(2) and s 3B(1)(g). Section 5Q provides that where an employer entrusts another with the task of providing the employee with the place and/or system of work, and/or with plant and equipment the employer will generally be vicariously liable for failure by that other person to exercise reasonable care in those matters.

5. It was submitted by Kaybron 6 that s 5Q does not apply because Kaybron 6 did not in fact entrust some aspect of the work to P & M or HUT when it was, if anything, the reverse since P & M allocated its employees to the Kaybron companies. I reject this submission. Although the evidence establishes the development of the arrangement which applied at the time of the plaintiff's accident in 2004, the plaintiff was, in fact and law, employed by Kaybron 6 at that time, which accordingly owed him a duty to provide him with a safe system of work. It can be inferred from Kaybron 6's lack of capacity to do anything to affect the safe system of work (since it had no employees with authority to do so, and no means to effect such changes) that it delegated, or purported to delegate, its duty to provide a safe system of work to P & M and HUT. For these reasons I consider that s 5Q does apply in the instant case to make Kaybron 6 vicariously liable for breaches by P & M and HUT.

Whether P & M owed a duty of care to the plaintiff and the content of that duty

1. P & M relied on Unilever Australia Limited v Pahi [2010] NSWCA 149, in which the Court of Appeal found that the effect of Leighton v Fox was that the duty of a principal was not co-extensive with that of an employer. It submitted that it owed no duty whatsoever to the plaintiff and all relevant duties were owed by Kaybron 6 as the plaintiff's employer. It submitted that its power to intervene to change the system of work did not impose a duty to intervene to change it to make it safe.

2. In my view, P & M continued to owe duties to the plaintiff even though, by 2004, it was no longer his employer. It had created the system of work, which remained unchanged for the period of the plaintiff's employment at its premises. It had created a corporate arrangement whereby Kaybron 6, the plaintiff's employer, employed neither managers nor supervisors, although it did employ leading hands. It had also arranged for HUT to employ managers and supervisors but it was not explored in the evidence whether such persons had authority to change the system of work that had been instituted by P & M. Although the corporate arrangement did not absolve Kaybron 6 from fulfilling the non-delegable duty it owed to the plaintiff, the arrangement and the way in which it worked in practice imposed duties on both P & M and HUT.

3. It was conceded by P & M that team leaders and leading hands employed by the Kaybron companies did not have authority to change the system of work and in particular did not have authority to direct that conveyor belts be stopped while they were being cleaned.

4. Mr Ujvary's evidence established that P & M was the entity which co-ordinated the workforce of the various Kaybron companies and HUT for the benefit of its own business of selling processed meats. The Kaybron companies and HUT were not merely labour hire companies. I consider that, in the particular circumstances of the corporate structure created by P & M, and of the practical realities as deposed to by Mr Ujvary, P & M owed the plaintiff a continuing duty to monitor the system of work that it had implemented and which continued throughout the period after Kaybron 6 became the plaintiff's employer, to take reasonable care to ensure that that system (namely the one it had implemented) did not expose persons who worked on its premises and for its benefit to unreasonable risk of injury. Although I accept that P & M was not required to do all that was within its power to ensure that the employees of Kaybron companies, including Kaybron 6, were provided with a safe system of work, I reject the submission that P & M had no duty whatsoever to the plaintiff once it was no longer his employer.

5. In coming to these conclusions I have reviewed the authorities which have considered the respective liabilities of principals, independent contractors, and labour hire companies, including Unilever v Pahi, J Blackwood & Son v Skilled Engineering [2008] NSWCA 142 and Clarence Valley Council v Macpherson [2011] NSWCA 422. Each case, however, depends on its own facts and circumstances.

6. I consider facts in the instant case be somewhat different from those cases where the employer and the principal or the person for whose benefit the work is done are at arms' length from each other. Had P & M relinquished control of HUT and the Kaybron companies, or their operations, when it caused its employees to be employed by a new employer (either HUT or the Kaybron companies), P & M may no longer have owed any duty to its former employees. However, the effect of the evidence of Mr Ujvary was that P & M remained the mind of the business and it continued to make significant decisions affecting operations and the way in which the workforce of HUT and the Kaybron companies was to be deployed and arranged. Because of the effective control which it retained and continued to exercise, I consider, as I have said above, that it owed continuing duties to the plaintiff at least with respect to the system of work that it had previously instituted and which was still in place, unchanged, at the time of the accident.

7. P & M was also the occupier of the premises and owned the conveyor. I do not consider that it breached any of the duties which it owed the plaintiff, as occupier.

Whether HUT owed a duty of care to the plaintiff and the content of that duty

1. HUT employed the persons, including Mr Ram, who were responsible for supervising employees of the Kaybron companies, including the plaintiff, in the way in which they performed the work. Although the employees of HUT may not have had the authority to change the system of work that had been implemented by P & M, I consider that they had a responsibility, and a concomitant duty, to take reasonable care to bring any deficiencies which could comprise the safety of such systems to the attention both of Kaybron 6 and of P & M.

Breach of duty

1. There are three principal bases on which it is alleged that the defendants were negligent: first, that the floor was inappropriate since it was slippery when wet or when it was not clear of debris; secondly, that there should have been a guard to separate workers from the moving parts of the conveyor; and thirdly, that the conveyor ought to have been stopped before workers approached it to clean it.

Slippery floor

1. As referred to above, the plaintiff alleges that he slipped because the floor was slippery. The plaintiff's evidence, which I accept, was that the floor was clean, but wet, when he slipped. The expert opinion of Patrick Donohoe, which was not relevantly challenged, is that wet testing to AS4663 of 2004 (the relevant Australian standard) proved that the surface of the floor was able "to offer a secure form of upright ambulation, all things being equal". There is a low risk of a slip event when wet. The testing of the floor when wet and when dry produced similar results although, as one would expect, the floor was slightly more slippery when wet. The first task that the plaintiff and his co-workers were required to do was to clean the floor and this was done before the conveyors were cleaned.

2. I do not consider that any of the defendants was in breach of any duty owed to the plaintiff by reason of the floor. It was, as Mr Donohoe considered, made of an appropriate material which meant that it was suitable, even when wet.

Lack of guard

1. I am not satisfied that it was reasonable to install a guard which would prevent any contact between the limbs of the cleaners and the moving parts of the conveyor since it was the conveyor which was the principal piece of equipment which needed to be cleaned. Even had such a guard been installed, it would in all probability have had to be removed in order to gain access to the conveyor belt to clean it. I do not consider that any of the defendants was in breach of the duties it owed to the plaintiff by failing to install a guard to prevent contact between the plaintiff and the moving conveyor.

System of work: allowing the conveyor to continue operating while being hosed

1. The meticulous cleaning of conveyors was essential to food hygiene and the safety of the meat products processed on the conveyors. The removal of every skerrick of meat required cleaners to stand in relatively close proximity to the conveyors so that they could see the conveyors clearly and apply water through the hose to a particular area. The risk of harm to the plaintiff was foreseeable and not insignificant. Although the plaintiff's injury was not, in the end, disabling, injuries sustained by contact between human limbs and moving machinery can be very serious. The burden of stopping the conveyor while the process of hosing the conveyor with water occurred was not onerous having regard to the risk involved.

2. The conveyor was not inherently dangerous. It was its movement while being cleaned that created a dangerous environment for the plaintiff. Whether the conveyor was moving when it was cleaned was a matter which pertained to the system of work and therefore part of the plaintiff's employer's obligations. The substantial cause of the plaintiff's injuries was that the conveyor was moving while he was hosing it. This was, in my view, an unsafe system of work. It exposed the plaintiff to an unreasonable risk of injury. Reasonable care required, in my view, that the cleaners be instructed not to clean the conveyor with hoses while it was moving and to ensure that it was stopped before they approached it with a hose. I accept Mr Donohoe's opinion that the system of work was unsafe and that the foreseeable risk of injury could have been reduced, if not removed altogether, if the conveyors were stopped while they were being cleaned.

Breach by Kaybron 6

1. I find that Kaybron 6 breached the duty of care that it owed to the plaintiff, as the plaintiff's employer, to take reasonable care to provide him with a safe system of work by permitting and requiring the plaintiff to clean the conveyor with a hose while the conveyor was moving.

Breach by P & M

1. I also find that P & M breached the duty of care that it owed to the plaintiff to monitor the systems that it had instituted and which were still in place for workers employed on its premises, albeit by another entity, who were engaged for the benefit of its business. For the reasons given above I consider that the plaintiff has established negligence consistently with the principles in s 5B and s 5C of the Civil Liability Act.

2. By reason of s 5Q, Kaybron 6 is vicariously liable for the breach by P & M.

Breach by HUT

1. I also find that HUT breached the duty of care that it owed to the plaintiff to detect and bring to P & M's attention any unreasonable risk to which the employees it was supervising, including the plaintiff were subjected by the system of work that P & M had established when it employed the whole workforce. I consider that it was unreasonable for HUT not to bring to Kaybron 6's attention the unreasonable risk of injury to which cleaners were subject when they hosed the conveyor belt when it was moving. Although there was some evidence which suggested that none of the witnesses was aware that anyone else had been injured in a similar way, this did not make the injury sustained by the plaintiff any less foreseeable. Nor, in my view, does it have the effect that the stopping of the conveyor did not amount to a reasonable precaution having regard to the risk.

2. The fact that Mr Ram, who was employed by HUT, was not present during the night shift when the plaintiff's accident occurred is not to the point since the duty which was breached was not the duty of immediate supervision, but rather related to the system of work. In my view, HUT is not absolved from fault by reason of the fact that those staff members who were more senior to the plaintiff on the night of 30 April/1 May 2004 were employed by Kaybron 6, rather than HUT.

3. By reason of s 5Q, Kaybron 6 is vicariously liable for the breach by HUT.

Contributory negligence

1. It is well established that in employment relationships, there is usually a lesser allowance for contributory negligence because of the relationship: see Thompson v Woolworth's (Queensland) Pty Limited [2005] HCA 19; 221 CLR 234 at [40]; and Bankstown Foundry Pty Limited v Braistina [1986] HCA 20; 160 CLR 301 at [15].

2. I do not consider this defence to have been made out by any of the defendants. I am not persuaded that the plaintiff's hand came into contact with a moving conveyor by reason of any failure on his part to take reasonable care for his own safety.

Apportionment between defendants

1. Apportionment reflects causal potency: Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; 59 ALJR 492 at [8]-[10], per Gibbs CJ, Mason, Wilson, Brennan and Deane JJ. As I have said above, I consider that P & M owed a duty to monitor the system it had instituted and that it failed to do so. Its failure caused the plaintiff's injuries, since it was the continued operation of the conveyor while the plaintiff was hosing it which caused him to suffer injury. HUT failed to identify a foreseeable risk to the cleaners who were expected to clean the conveyor belt while it was moving. Had its supervisors or managers done so, then P & M or Kaybron 6 would probably have changed the system of work. Kaybron 6 subjected the plaintiff to an unsafe system of work. As the plaintiff's employer it must bear the lion's share of responsibility.

2. Kaybron 6 bears 60% of the responsibility for the plaintiff's loss. P & M bears 25% and HUT 15%. In making this apportionment, I have also taken into account the findings that Kaybron 6 is vicariously liable for the breaches by P & M and HUT, by reason of s 5Q of the Civil Liability Act.

The Limitation defence

1. All defendants pleaded that the plaintiff's claims against them were statute-barred since they were brought well outside the three year limitation period. There was apparent force in this defence: the accident occurred on 1 May 2004 and the plaintiff did not bring proceedings against P & M and HUT until 17 April 2008 when he filed a statement of claim in the District Court or against Kaybron 6 until 16 February 2009.

The Limitation defence: the claim against Kaybron 6

1. By reason of s 151H of the Workers Compensation Act 1987, the plaintiff could not bring a claim for damages in negligence against his employer unless and until he had met the threshold requirement that he suffer a permanent impairment of at least 15%, which was a matter that needed to be assessed. This assessment was not resolved until October 2008 (by a Complying Agreement under s 66A of the Workers Compensation Act which, curiously, identifies the plaintiff's employer as "Primo Smallgoods"). Accordingly, the cause of action against the plaintiff's employer did not accrue until that date.

2. The plaintiff's claim against Kaybron 6 was brought within time because it was brought within three years of the assessment of his permanent impairment, being the date on which his cause of action against Kaybron 6 accrued.

The Limitation defence: the claim against P & M and HUT

1. The plaintiff's unchallenged evidence was that he was employed by P & M in 1999, his employment was terminated by way of letter dated 16 September 2004 from P & M and that he was first advised by his solicitor in 2007 that his employer was actually Kaybron 6, rather than P & M. The letter of termination was on P & M letterhead, there is no reference in the letter to Kaybron 6 and it is signed "for P & M Quality Smallgoods Pty Limited" by Steve Bertram, Human Resources Manager. A subsequent letter, dated 13 April 2005, also on P & M's letterhead was written by the then Human Resources Manager, Anthea Estwick, to the plaintiff's solicitors.

2. P & M and HUT submitted that the plaintiff received group certificates which recorded the name of Kaybron 6 and that his tax returns showed the ABN of Kaybron 6 which corresponded with the ABN on the group certificates. They submitted that the plaintiff would have ascertained the identity of his employer had he taken "all reasonable steps" to ascertain that fact. In response, the plaintiff submitted that he was not cross-examined about his group certificates or tax returns and that accordingly, P & M could not make that submission, and that it ought not be accepted.

3. Section 50D of the Limitation Act 1969 provides, relevantly, that:

   (1)a cause of action is discoverable by a person on the first date that the person knows or ought to know the fact that the injury was caused by the fault of the defendant (s 50D(1)(b)); and

   (2)a person ought to know of a fact if the fact would have been ascertained by the person had the person taken all reasonable steps before that time to ascertain the fact (s 50D(2)).

4. In my view it was reasonable for the plaintiff to rely on the fact that he had originally been employed by P & M as the basis for his view that he was still employed by P & M on the day of the accident. His belief would tend to be reinforced by the terms of the letter of termination and the subsequent letter to his solicitors in April 2005 and the fact both letters were sent on P & M letterhead. I do not consider that "all reasonable steps" required the plaintiff to investigate whether what appeared to be the case was consistent with his group certificates or whether the ABN on his tax return matched the ABN on his letter of termination or the ABN on his group certificates.

5. At all events, because the matter was not explored with the plaintiff in cross-examination, I accept that the plaintiff has established that he did not appreciate that he had a claim for damages against P & M or HUT until 2007 when he was first advised that he was employed by Kaybron 6 and not, as he had believed, by P & M. His conduct, which is relevant pursuant to s 50D(3), and that of his solicitor is consistent with his belief that it was necessary for him to establish, as against his employer, whom he believed to be P & M, that he had suffered an impairment of 15% or greater before he could commence proceedings against his employer.

6. Accordingly, in my view, the plaintiff did not know the identity of the "defendant" for the purposes of s 50D(1)(b) until 2007. The identity of his employer was an essential fact in the context of knowing where fault was at issue for the purposes of s 50D(1)(b): Bostik Australia Pty Limited v Liddiard [2009] NSWCA 167 at [46]-[49], per Beazley JA, Ipp and Basten JJA agreeing.

7. It follows that the plaintiff's claim against P & M and HUT was brought within time because it was brought within three years after the discovery limitation period.

Damages

1. The plaintiff's right to damages is governed by Division 3 of the Workers Compensation Act. His right to damages against P & M and HUT is governed by the Civil Liability Act.

The extent of the plaintiff's incapacity: past economic loss and damages for future economic loss

1. The plaintiff gave evidence of persisting, but intermittent pain and discomfort in the fourth finger of his left hand, his left arm, his left shoulder and his neck. He said that he suffered shooting pain at times which came on without warning. He gave elaborate evidence of his pain, suffering and lack of capacity to work, care for himself or drive a car. His evidence is largely reflected in the histories he gave from time to time to doctors who examined him for treatment and for medicolegal assessment.

2. In his evidence in chief, the plaintiff presented as a broken man, who was timid, fearful and very assiduous in protecting his left hand and arm from any movement or impact. He wore a glove on his left hand.

3. During the course of his cross-examination some video footage was shown which depicted an entirely different picture of the plaintiff from the one which was painted through his evidence in chief and in the histories he had given to medical practitioners. The footage, which was taken in September 2010, January 2011 and February 2012, showed him as being able-bodied, capable, well-muscled and entirely unhindered by any physical ailment. It showed him lying on the ground in the course of a picnic, supporting his upper body weight with his left arm; it showed him driving from the Blue Mountains to Sydney to attend a doctor's appointment with Dr Guirgis, who proceeded to certify him unfit for any work; and it showed him carrying bags in his left arm and behaving in a completely normal uninjured fashion as he went about the activities of his daily life.

4. The plaintiff was defensive and argumentative when shown the video. He was quick to point out that he had never said that he could not do the things that were depicted in the video and adamant that he suffered pain. When he was cross-examined about the circumstances of the accident he was forceful and articulate. He displayed no aversion or apprehension when revisiting the circumstances of the accident. There was no evidence in these exchanges of any psychological reaction to the memory of the accident or having to articulate the details of what had occurred.

1. The plaintiff's written submissions as to the effect of the video evidence were:

   "The plaintiff notes the surveillance and the plaintiff submits that his injury to his hand is such that he is not unable to do things but suffers severe pain at times and while the surveillance showed him over a discrete period of times [sic], it did not show him during colder weather when he is more likely to suffer pain and discomfort."

2. Ms Ndlovu, a registered nurse who was born in Zimbabwe and is 30 years old, gave evidence, which in part, corroborated the plaintiff's version. Since she is his girlfriend and obviously very fond of him I do not consider her evidence to be independent. However, just as the plaintiff has misrepresented his disability to the Court, I consider that he has also misrepresented his disability to Ms Ndlovu. She has done household tasks for him because she believes that he is unable to do them. At one stage she said, in my view, accurately: "Maybe I spoil him." She has made allowances for him because she believes that he has been genuinely injured. Her answers reflect her credulity. Although at times she sought to protect the plaintiff while she was giving evidence, I consider that she has been largely truthful.

3. In my view, the plaintiff has decided to rely on workers' compensation payments and feign disability with a view to obtaining a substantial lump sum in these proceedings. I do not accept the plaintiff's evidence as to his symptoms or incapacity except where it is corroborated or amounts to a statement against interest. I do not accept the plaintiff's explanation, given in cross-examination and in his submissions, of the disparity between his evidence in chief and the histories given to doctors on the one hand and what was depicted in the video on the other.

4. The plaintiff gave evidence and histories to doctors about taking marijuana and alcohol for pain relief. I do not accept that the plaintiff has ingested the quantities of alcohol or smoked the amount of marijuana that he purports to have. Nor do I accept that such drugs and alcohol were consumed so as to relieve pain associated with the accident the subject of these proceedings.

The medical evidence

1. In accordance with this Court's directions, there were joint conclaves of experts who prepared joint reports which were tendered.

2. None of the medical practitioners who treated the plaintiff or who assessed him for medicolegal purposes saw the footage, to which reference has been made above.

3. The experts were provided with lists of assumptions and questions. For example, the psychiatrists, Dr John Roberts and Dr Patricia Jungfer were asked to make several assumptions, including the following:

   "The pain suffered by the plaintiff interferes with his sleep and daily activities...

   The plaintiff has difficulties attending to his own personal care am and has had to move on numerous occasions to different share houses."

4. It will be apparent from my assessment of the plaintiff's credibility set out above that neither of these assumptions has been made out. The undermining of important assumptions and the fact that none of the experts saw the video substantially reduces the value of the expert opinions and the joint reports: Ramsay v Watson [1961] HCA 65; 108 CLR 642 and Paric v John Holland [1985] HCA 58; 59 ALJR 844. The disparity between the assumptions given to the doctors and my findings set out above renders the reports of little benefit where the opinions are based on the assumptions.

5. Although the medical practitioners whose reports were in evidence were not privy to the video, some included passages which indicated that they did not believe the plaintiff and thought that he was fit for normal duties. For example, Dr Richard Sekel, a consultant in occupational medicine, recorded in a report dated 29 July 2004:

   "Mr Opoku is immediately fit for normal hours of work where he does not repeatedly knock the pulp of his left index finger...

   Mr Opoku appeared to be so reluctant to return to work, that it raises the question as to whether he has some other agenda, or perhaps is undertaking some other work...

   Today, Dr Masson and I agreed that Mr Opoku's pre-injury duties of holding a hose in his right hand, supported by his left, would be quite suitable for him, and could not possibly cause any risk to him. We agreed that he should be able to return to his normal hours immediately...

   On 30/7/04 [sic] I had a telephone conference with Dr Sachawars [the plaintiff's then general practitioner] who also stated emphatically that Mr Opoku is now physically fit to return to his normal duties as described above."

6. In his report dated 3 August 2007, Dr Sekel recorded:

   "Mr Opoku states that he never uses his left hand and in fact does not even touch anything with it. However, this does not appear to be correct, for the following reasons:

   - Although he primarily refused to allow me to touch his left ring finger during the physical examination, at other times when his attention was distracted (while his opposite hand was being examined), I was able to firmly press the left ring finger without causing apparent discomfort.

   - After the physical examination, he placed his hand back into a thick woollen glove without apparent discomfort, despite the fact that the glove would have been rubbing the skin surface in an identical manner to the way that he had stated was impossible for him to tolerate during the physical examination.

   - After the examination, when he had left my office building, I noted that he had left a personal envelope on my desk, and I took it out to him shortly after he had sat into his car; I noted that before he saw me, he picked up a carton of takeaway food and held it in his left hand, in a completely different manner to that which he had demonstrated during the physical examination.

   Mr Opoku states that, because of his left ring finger symptoms, he is unable to undertake any activities and is therefore not looking for work."

7. Prof W Bruce Conolly, hand surgeon, suggested surveillance in his report of 26 April 2012, which is consistent with his having difficulties in accepting the assumptions he has been asked to make or the plaintiff's version of the history and his symptoms. Dr Sekel, amongst others, noted that complaints of extreme sensitivity were not consistent with observed behaviour. Dr Roberts, psychiatrist, did not believe the plaintiff to be genuine in his assessment.

8. The absence of any muscle wasting in the plaintiff's left upper limb is consistent with normal use of that limb and inconsistent with any limitation in function.

9. The plaintiff submitted that:

   "The totality of the evidence establishes that from the date of accident to 2010 the plaintiff had ongoing hypersensitivity and pain as a result of the neuroma over the digital nerve."

10. However, in light of the view I have formed of the plaintiff's credibility I do not accept that the plaintiff had any such hypersensitivity.

11. There is nothing in the medical opinions that persuades me that the plaintiff has any physical or psychiatric incapacity to work or care for himself which can be attributed to the injury he suffered on 1 May 2004, which goes beyond 23 August 2004.

Findings as to injury and incapacity

1. I find that the plaintiff suffered an injury to the fourth finger on his left hand on 1 May 2004. I am not satisfied that the complaints made by the plaintiff at subsequent dates of pain in his arm, shoulder and neck are in any way attributable to the accident, which I find caused a localised injury to his finger. I find that the plaintiff does not suffer from any regional pain syndrome.

2. I am satisfied that the plaintiff no longer suffers from any incapacity as a result of the injury to his finger sustained on 1 May 2004. I am satisfied that the plaintiff has no need for attendant care and that he is well able to look after himself and to work in a position which is at least as remunerative as that which he had at the time of the accident. His work capacity is not diminished by the injuries he sustained on 1 May 2004. Nor does he require medication as a result of any such injuries.

3. There is some difficulty in determining when the plaintiff recovered sufficiently from the injuries he sustained on 1 May 2004 to regain his working capacity. The video evidence, which shows him to be able-bodied, was taken some years after the accident. It may be that the plaintiff was fit to return to work prior to 23 August 2004. However, the evidence does not permit me to be more precise than this. I am satisfied that the plaintiff regained his earning capacity no later than 23 August 2004.

Quantum of damages

Damages for non-economic loss

1. Damages for non-economic loss are not recoverable from Kaybron 6: s 151G of the Workers Compensation Act. The determination of damages for non-economic loss against P & M and HUT is governed by s 16 of the Civil Liability Act. No damages may be awarded unless the severity of the non-economic loss is at least 15% of the most extreme case. I find that the plaintiff does not meet this threshold. His injuries, although alarming at the time, were relatively quickly resolved and affected only one finger of his non-dominant hand. His recovery was substantially, if not wholly, complete within a few months of the accident.

Past economic loss

1. Damages for past economic loss are recoverable from Kaybron 6 under s 151H of the Workers Compensation Act as well as from P & M and HUT.

2. The plaintiff is entitled to loss of earnings for the period from 1 May 2004 until 23 August 2004 at a rate which reflects his historical performance of overtime. Since the plaintiff was in receipt of workers' compensation benefits during this period, he has had the benefit of this money and is not entitled to interest on this sum under s 18 of the Civil Liability Act.

Past loss of superannuation

1. The plaintiff is entitled to loss of superannuation for the period from 1 May 2004 until 23 August 2004 at a rate which reflects his past economic loss.

Future economic loss

1. The plaintiff is not entitled to any sum for future loss of earning capacity.

Past and future gratuitous attendant care services

1. Section 15(3) of the Civil Liability Act, which was inserted by the Civil Liability Amendment Act 2008, Sch 1[2], has the effect that the plaintiff is not entitled to past gratuitous attendant services unless the services are provided for at least 6 hours per week and for a period of at least six consecutive months. The amendment, which commenced on 5 November 2008, was retrospective in its operation in that it extends to civil liability arising, and to proceedings commenced, before the commencement of the amendment but does not apply to any proceedings determined before that commencement. Accordingly, the amendment introduced in 2008 which inserted s 15(3) applies to the plaintiff.

2. I am not, for the reasons given above, persuaded that there was a reasonable need for gratuitous services to be provided to the plaintiff for that duration and that period. Because of my finding as to the plaintiff's capacity from 23 August 2004, which is less than six months after the injury, the plaintiff is not entitled to any damages under this head.

Out of pocket expenses - past

1. The plaintiff is entitled to an award as against P & M and HUT for out of pocket expenses for the period from 1 May 2004 until 23 August 2004 in so far as those expenses are referable to the injury to the fourth finger of his left hand. He is not entitled to have included in his damages any expenses referable to his arm or shoulder.

Out of pocket expenses - future

1. The plaintiff is not entitled to any provision in his award of damages for out-of-pocket expenses for the future.

Cross-claims

1. In the Amended Cross-Claim, QBE has cross-claimed against P & M and HUT for indemnity pursuant to s 151Z(1)(d) of the Workers Compensation Act for payments made to or on behalf of the cross-claimant to, for or on behalf of the plaintiff. It is entitled to an indemnity which reflects the apportionment of liability.

2. P & M and HUT submitted that s 151Z(1) requires for its operation that the injury for which compensation is payable was caused under circumstances creating a liability in some person other than the worker's employer to pay damages in respect of the injury. The words "creating a liability... to pay damages" refers to a liability in respect of the same injury for which compensation is payable: Kempsey District Hospital v Thackham (1995) 36 NSWLR 492 at 505, per Meagher JA. The evidence reveals that QBE has paid considerably more than the plaintiff was entitled to under the Workers Compensation Act, had the facts, as I have found them to be, been appreciated by QBE. However, in light of the damages award which I make, the difference between what the plaintiff was paid and what he was properly entitled to by way of compensation does not appear to me to be material to the matters for my determination.

3. By Amended Second Cross-Claim filed in Court on 3 May 2012, QBE claims from the plaintiff, credit for the extent of the payments made by it to the plaintiff, pursuant to s 151Z(1)(b), in so far as they are included in the award of damages. It is entitled to succeed in its claim.

Miscellaneous

1. The parties have requested an opportunity to bring in short minutes of order that reflect these reasons.

Costs

1. In the normal course, costs would follow the event and each of the P & M, HUT and Kaybron 6 would be liable to pay the plaintiff's costs since he has succeeded on liability. P & M and HUT would be liable to pay Kaybron 6's costs of its cross-claim. However, I shall defer making a costs order since I have not yet heard the parties on costs.

Orders

1. I make the following orders:

   (1)Direct the parties to deliver to my chambers short minutes of order within seven days which reflect these reasons.

   (2)Stand the matter over for the making of the orders referred to in Order 1 above, and, in the absence of agreement between the parties, submissions on costs.

   **********