Palmer v Allianz Australia Workers' Compensation (NSW) Limited - [2019] NSWDC 107

District Court

New South Wales

Medium Neutral Citation: Palmer v Allianz Australia Workers' Compensation (NSW) Limited [2019] NSWDC 107
Hearing dates: 11 – 13 March 2019
Date of orders: 04 April 2019
Decision date: 04 April 2019
Jurisdiction: Civil
Before: Weber SC DCJ
Decision:
Parties directed to bring in Short Minutes of Order to give effect to the Court’s reasons

Catchwords:
WORKERS’ COMPENSATION – liability to pay damages – direct and vicarious liability of employer – labour hire employer - whether employer aware of change in employee’s work responsibilities – whether employer acquiesced to change in employee’s work responsibilities

TORTS – Negligence – Apportionment of responsibility and damages – liability of third party contractors – contribution and indemnity between tortfeasors
DAMAGES – General principles – whether contributory negligence – whether failure to mitigate loss – whether employee has residual earning capacity – quantifying vicissitudes – basis for calculating past earnings
Legislation Cited: Civil Liability Act 2002 (NSW)
Corporations Act 2001 (Cth)
Law Reform (Miscellaneous Provisions) Act 1946 (NSW)
Workers Compensation Act 1987 (NSW)
Workplace Injury Management and Workers Compensation Act 1998 (NSW)
Cases Cited: Avopiling v Bosevski [2018] NSWCA 146
Benic v State of New South Wales [2010] NSWSC 1039
Caterson v Commissioner of Railways (1973) 128 CLR 99
Coles Supermarkets Australia Pty Ltd v Bridge [2018] NSWCA 183
CSR Timber Products Pty Ltd v Weathertex Pty Ltd (2013) 83 NSWLR 433
Erickson v Bagley [2015] VSCA 220
Globe Church Incorporated v Allianz Australia Insurance Ltd [2019] NSWCA 27
Hunt v Knight Frank (NSW) Pty Ltd & 2 Ors [2005] NSWCA 139
Jones v Dunkel (1959) 101 CLR 298
Kallouf v Middis [2008] NSWCA 61
Malec v JC Hutton (1990) 169 CLR 638
Matthew Xavier Carton v Rainbow Plumbing & Drainage Pty Limited [2013] ACTSC 267
McNeilly v Imbree (2007) 47 MVR 536
Mead v Kerney [2012] NSWCA 215
Metropolitan Ambulance Service v State of Victoria [2002] VSC 222
Nominal Defendant v Livaja [2011] NSWCA 121
Penrith City Council v Government Insurance Office of New South Wales (1991) 24 NSWLR 564
Perisher Blue Pty Ltd v Nair-Smith [2015] NSWCA 90
Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529
Port Macquarie Hastings Council v Mooney [2014] NSWCA 156
Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98
Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330
South Sydney Junior Rugby League Club Ltd v Gazis [2016] NSWCA 8
South West Helicopters Pty Ltd v Stephenson [2017] NSWCA 312; (2017) 327 FLR 110
Strong v Woolworths (2012) 246 CLR 182
TNT Australia Pty Ltd v Christie [2003] NSWCA 47
Uniting Church in Australia Property Trust (NSW) v Miller (2015) 91 NSWLR 752
Wagner v International Railway Co 232 NY 176
Texts Cited: Fleming’s The Law of Torts 10th edition,
by Sappideen and Vines
Category: Principal judgment
Parties: Gary Palmer (Plaintiff)
Allianz Australia Workers' Compensation (NSW) Limited (Defendant; Cross Claimant 1)
Downer EDI Works Pty Limited (Cross Defendant 1; Cross Claimant 2)
Cambra Holdings Pty. Ltd (Cross Defendant 2)
Representation:
Counsel:
Plaintiff: Mr E Romaniuk SC; Mr P Menary
Defendant / Cross Claimant 1: Mr H Halligan
Cross Defendant 1 / Cross Claimant 2: Mr H Chiu
Cross Defendant 2: Mr D Kelly
Solicitors:
Plaintiff: LHD Lawyers
Defendant / Cross Claimant 1: HWL Ebsworth
Cross Defendant 1 / Cross Claimant 2: Clyde & Co
Cross Defendant 2: Moray & Agnew

File Number(s): 2016/00296823 – 0012016/00296823 – 0022016/00296823 – 003
Publication restriction: None

Judgment

The Proceedings

The plaintiff has commenced proceedings against the defendant, the Workers Compensation Nominal Insurer by its agent Allianz Australia Workers' Compensation (NSW) Limited (“Allianz”). He seeks damages pursuant to the provisions of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) and the Workers Compensation Act 1987 (NSW). Pursuant to the provisions of section 151G of the latter Act, such damages are limited to past and future economic loss.
Damages are sought in respect of injuries sustained by him while in the employ of Workforce Market Pty Limited, trading as Trustee for Workforce Market Unit Trust (“Workforce”).
Workforce was deregistered on 28 March 2001. Allianz is sued pursuant to section 601AG of the Corporations Act 2001 (Cth), which provides that a person may recover money from an insurer of a company that is deregistered, where such company had a liability to the person, and such liability was covered by an insurance contract immediately before deregistration of the company.
I will come to the circumstances which led to the incurring of the plaintiff’s injuries, and the particulars of his injury in more detail, but suffice to say for present purposes that on 29 November 2007, the plaintiff suffered a serious neck injury, being a protrusion of his cervical spine C5/6 disc which required surgery, when attempting to move three linked road traffic barriers, partially filled with water. He was undertaking this task in order to clear a passage for a truck which wished to have access to the main entrance of the Broadwater Sugar Mill on the Pacific Highway in the Northern Rivers area.
Allianz brings the first cross-claim against Downer EDI Works Pty Limited (“Downer”). Workforce was a labour hire company which was engaged by Downer to provide certain traffic management services at the Broadwater Sugar Mill works. The first cross-claim pleads a case in contract and tort. The contractual claim, as pleaded, is said to arise out of a contract pursuant to which Workforce provided the plaintiff’s services to operate as a traffic controller on the Pacific Highway at the Broadwater Sugar Mill, where road widening works were being performed by Downer and its subcontractor, Cambra Holdings Pty Ltd (“Cambra”).
By the first cross-claim, Allianz also seeks an indemnity pursuant to section 151Z(1)(d) of the Workers Compensation Act 1987 (NSW) in respect of workers compensation payments made by it to or on behalf of the plaintiff. Allianz also seeks indemnity and/or contribution pursuant to section 5 of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) (“LRMPA”).
The second cross-claim is brought by Downer against Cambra. It pleads a cause of action in negligence and in contract, the latter cause of action being said to arise from a contractual right to indemnity under a short form subcontract between the parties dated 9 October 2007. This was a contract for the provision of construction works, and other goods and services. The cross-claim also seeks indemnity and/or contribution under section 5 of the LRMPA.

The Evidence

The plaintiff’s case as to the circumstances leading up to and including the incident causing his injuries, is uncontradicted. The plaintiff has relied on four reports from Dr Alan Hopcroft, his treating orthopaedic surgeon, all of which similarly were uncontradicted. Dr Hopcroft was not required for cross-examination. Finally, the plaintiff relies on two liability expert reports prepared by Mr David Cockbain. These reports go to the plaintiff’s allegations of a failure by Workforce and Downer to provide him a safe system of work. These reports were also uncontradicted. Dr Cockbain was not required for cross-examination.

My Impressions of the Plaintiff

Notwithstanding that the evidence of the plaintiff is uncontradicted, I consider that it is worthwhile making some observations about the plaintiff, and the manner in which he gave evidence. The plaintiff presented as a likeable, affable, intelligent and articulate man who was prepared to make concessions where appropriate. I have no hesitation in accepting him as a witness of truth. Indeed, in fairness to the defendants, it was not seriously suggested that I should not do so.
I note this, as the narration of the events of the plaintiff’s time at the Broadwater Sugar Mill site culminating in the incident causing his injuries, to which I am about to embark, is entirely taken from the plaintiff’s evidence, which I wished to make clear I accept.
I also record it as my impressions of the plaintiff’s demeanour and personality, as gleaned from his time in the witness box, is also relevant to certain aspects of his claim going to the quantum of damages.

The Plaintiff

The plaintiff was born in 1965 and will turn 54 this July. He was brought up on the Central Coast. He told the Court (somewhat quizzically) that while he was a good student, his marks were “not real good”. Be that as it may, in 1983, he gained his Higher School Certificate, and thereafter in 1984 he commenced employment as a labourer. Later in that year, he commenced employment at Meat Works, an abattoir in Gosford. While working at Meat Works, he lifted a heavy carton of frozen meat, and in the course of so doing, severely injured his lumbar spine. Thereafter, between 1986 and 2000, the plaintiff underwent surgery on his spine five times. This culminated in Dr Winters, an orthopaedic surgeon, performing a laminectomy on the plaintiff in 2002.
The plaintiff was unable to work during the period between his injury and his recovery from the final surgery.
The plaintiff gave evidence that after the final operation by Dr Winters, his back was the best that it had been for a long time. He consequently decided that he was up to pursuing work again. By this stage, the plaintiff had moved to a town situated between Grafton and MacLean. Somebody who lived in the same street as the plaintiff had told him about Workforce, a labour hire company which operated in Grafton, amongst other places. His neighbour told him that Workforce were looking for traffic safety staff. As a result of that discussion, the plaintiff set about obtaining a ticket to qualify himself as a traffic controller. He told the court that he took this course as he had been advised by his neighbour that there was a great deal of road work which was being undertaken on the Pacific Highway in the area around Grafton.
Having obtained his ticket, the plaintiff contacted the offices of Workforce in Grafton. He attended that office and completed a form at the front counter. Amongst other things, the form sought information as to whether the plaintiff had suffered previous injuries, to which he replied truthfully, that he had suffered the severe back injuries at the Gosford abattoir, to which I have referred.
The plaintiff was offered employment by Workforce on or about 19 April 2006. He initially worked at various locations around the Northern Rivers region, including at Lismore, Grafton and Ballina. In those locations, he undertook basic traffic control duties, involving the setting up of road signs warning motorists of the fact that roadworks were being undertaken ahead. He also undertook “lollipop” work on the road. This activity, familiar to anyone who travels the state’s highways, involved the plaintiff being armed with a “lollipop” stop/slow sign and a walkie-talkie to enable him to control traffic flows and liaise with his colleague operating further down the road, who was undertaking the same task.

The Plaintiff’s Employment at Broadwater

In November 2006, Workforce asked the plaintiff to attend for work at the Broadwater Sugar Mill project. This was a civil engineering project being undertaken by Downer. The plaintiff was told by Jeffrey Gowan, his supervisor at Workforce, that the job would be a fairly simple one, essentially involving taking down the registration details of vehicles at the site, and keeping an eye on people moving across the Pacific Highway. The plaintiff said he had also had a discussion with Downer when he arrived on site, where that job description was confirmed.
When he first attended on site at Broadwater, he was given an induction by a Downer employee. He told the court that the induction was presented by a safety officer, and was only concerned with basic safety around the site. That was the totality of training provided by Downer to the plaintiff.
In what, Mr Romaniuk SC for the plaintiff described as the “first phase” of his employment at Broadwater, the plaintiff was responsible for itemising each vehicle which entered the site, or crossed the Pacific Highway, the company who owned the vehicle, and the vehicle’s registration number. He also told the Court that there was a car park for workers who worked on the sugar mill site. The sugar mill was on the western side of the highway, and the carpark was situated on the eastern side of the Pacific Highway. As such, it was necessary in this first phase of his employment at Broadwater, for certain workers to cross the Pacific Highway from the car park to the sugar mill side on the west. He was assigned the task of monitoring those workers, so as to ensure that they crossed the Pacific Highway in a safe manner. He also was concerned with the safety of non-employee pedestrians crossing the road. He described his activities as “really a gate monitor”.
The plaintiff’s days were long, involving a 6.15am start and a 5.00pm knockoff. He worked these hours Monday to Friday.

The Change in the Nature of the Plaintiff’s Employment Duties

At some stage, the nature of the plaintiff’s role changed. This led to what Mr Romaniuk SC described as the “second phase” of the plaintiff’s engagement at Broadwater. This change in the plaintiff’s role at Broadwater, it seemed, coincided with the commencement of the road widening works on the western side of the Pacific Highway. In order for this widening to occur, the existing road surface had to be excavated. That process had been completed on the eastern side of the highway (T25.5). The task could not start until all of the Downer site material on the eastern side of the Pacific Highway was brought to the western side of the highway.
As to date, the plaintiff’s role had been fundamentally connected with the need to transport vehicles and pedestrians across the Pacific Highway; he feared that his job may disappear, as all operations were moving to the western side of the highway, and so crossing of the highway would be less frequent (T21.5).
The plaintiff gave evidence that each day he attended the daily “toolbox meeting” conducted by the Downer staff. At this time of transition in the work being undertaken at the site, to which I have just referred, he attended such a toolbox meeting. The meeting was led by the Downer site manager, Glenn Bibby. At that meeting, Mr Bibby said to him “I’ll keep you on. Just stay on that side of the street and just give the boys a hand, whatever they need you to do”. The plaintiff, being pleased with this, replied “yeah, sweet, great” (T21.25).
One of the initial tasks which the plaintiff undertook in the second phase of his employment was to construct a makeshift pedestrian walkway on the eastern side of the Pacific Highway. This was done in order to keep safe local pedestrians on their way to the local shops and hotel. This was a relatively simple task involving the sinking of star pickets and the affixing of red plastic webbing to them. In addition, as there had been some break-ins in the Downer car park, the plaintiff was asked to “look out for boofheads that might be breaking into cars” (T21.45-46).
At a time after the commencement of the second phase of his employment, the plaintiff was visited by Mr Gowan of Workforce. This meeting was part of a series of semiregular meetings where Mr Gowan came to the Broadwater site and checked on how the plaintiff was going. On this occasion, the plaintiff said his clothes were wearing out, and Mr Gowan arranged for them to be replaced. A conversation to the following effect then took place:

Q: Did Mr Gowan say anything to you about how you could approach your job, if that was—
A: Well, yeah, Jeff was a pretty laid back type of old fellow and just said, said to me, you know, “Just do what they ask you to do, mate.” You know, “Keep your nose clean and just do what they ask you to do.” Similar to that, just along those lines.

Sometime after the time at which the “second phase” of the plaintiff’s employment commenced, a large tip truck backed into a number of road barriers, then situated on the eastern side of the Pacific Highway, and knocked them over. These barriers were pinned and wired together. A man employed by Downer by the first name of “Kelly”, who was described by the plaintiff as the “main bloke… on the excavation side of things”, said to the plaintiff “just give me a hand, mate, to get those barriers back up”. He also brought to the task, two labourers working for Cambra. I should say at this stage that Cambra was often called “Morgans” by the plaintiff, and thus by the parties, which has a potential for confusion. Mr Cockbain records this incident as occurring approximately one week prior to the incident which caused the plaintiff’s injury (Ex P1, p72).
Returning to the narrative, the plaintiff set about undertaking the task which Kelly had assigned to him. He found that the best way to undertake the task was to sit down and pull all of the pins out and then stand the barriers up one at a time. At this stage, the plaintiff said that there was “no water, or hardly any water in them” (T24.24). This was the first time the plaintiff had anything to do with the barriers. It was also an important moment insofar as it was the first time that the plaintiff came to realise that the barriers, at least when they were substantially empty of water, could readily swivel on their pins. This, the plaintiff described, as “articulation”.
On 28 November 2007, the plaintiff was again required to deal with barriers by manually handling them. The plaintiff gave evidence that he attended a meeting of a small group involving Kelly from Downer, a man identified as “Graham” from Morgans (Cambra) and the two Morgans (Cambra) labourers and himself. Kelly told the group that the barriers which were then on the eastern side of the highway had to be moved to the western side of the highway. This was required so that excavation work could start there (T25.5).
There were 30 to 40 barriers, and the plan devised by Downer was to take them across the Pacific Highway in groups of three. The physical handling of the barriers was undertaken by the two Morgans labourers and the plaintiff. The manner in which the task was undertaken was that the two Morgans labourers grabbed the front of the barriers on either side, and the plaintiff grabbed the trailing barrier. The Morgans labourers then pulled the three barriers while the plaintiff pushed from behind while at the same time operating a degree of steerage. In order to facilitate that process, Downer brought in two traffic controllers to stop the traffic while the barriers were crossing the highway. These were employees of another hire company. The plaintiff, during this task, asked Graham why they were man handling the barriers when an excavator could pull them, but Graham replied that he should continue with the task (T84.26-39).

The Incident Causing the Plaintiff’s Injury

On the next day, 29 November 2007, the incident which led to the plaintiff’s injury, occurred (the “Incident”).
On that day, the plaintiff observed that the majority of the barriers had been joined up in one line; he had not been involved in that task. In addition to the long line of connected barriers, there were two groups of three barriers placed on the southern and northern side of the entrance to the sugar mill, that is to say on the western side of the main line of barriers, but roughly perpendicular to them (the “Separate Barriers”). The long line of barriers was sometimes referred to in the proceedings as a “conga line”.
It was necessary to move the line of barriers to the south, and this task was undertaken by Graham from Morgans, who was driving a mini excavator. This task involved dragging the conga line some 50 to 70 metres south. The purpose of the manoeuvre was twofold: first, being to clear the barriers from the area of the western side that was to be evacuated; and secondly, to use the barriers further south as a buffer between the traffic on the Pacific Highway and the workers.

The plaintiff became involved in this task at about 8.15am when Graham started pulling the conga line along. The plaintiff was walking along in company with the last barrier. The process was unfolding in a satisfactory manner, until for reasons which remain unexplained, Graham stopped the excavator, and left it. This was done without any notice to the plaintiff, and without him seeing Graham leave the excavator. Crucially, Graham had stopped the excavator, and thus stopped the movement of the line of barriers, leaving two to three barriers obstructing the main entrance to the Broadwater Sugar Mill.
No sooner had the main entrance to the sugar mill been partially blocked by the final two or three barriers, than a truck travelling from the south sought to turn in to the sugar mill. The truck was involved in the task of loading bagasse (a byproduct of crushed sugarcane) from the sugar mill and delivering it elsewhere. The now stationary truck blocked the northbound carriageway of the Pacific Highway. The truck driver was becoming agitated and began honking his horn. It is uncertain whether the plaintiff and the truck driver actually spoke or not, although the plaintiff says the “truck driver started to get agitated. Honking his horn looking at me going, ‘what are you doing mate?’; I’m going, ‘mate, I can’t do anything’” (T27.22).
These communications may well in fact have been non-verbal (T55.5) but regardless of how it was communicated, the plaintiff had become more than adequately aware of the truck driver’s frustration at being held up. Being 8.15am on a working day, it was hardly surprising that the truck, having stopped on a single carriageway section of the Pacific Highway, quickly caused a line-up of other vehicles behind it.
Soon, impatient car drivers, who were being held up by the truck, became frustrated and pulled out across and onto the wrong side of the Pacific Highway in order to overtake the stationary truck. The plaintiff was concerned that this may cause a serious accident. This was a very understandable concern given the fact that the events which were happening before him were happening at approximately 8.15am on a working day, on a narrow stretch of the Pacific Highway, in a small village.
The plaintiff concluded that he was confronting an emergency, and that something had to be done. The plaintiff decided that the best and most expeditious means of clearing access to the sugar mill entrance for the truck, was to attempt to shift the first of the three Separate Barriers on the southern side of the entrance. He hoped that by that process, relying on the articulation effect which he had seen in the recent past, the first and hopefully the second barrier would be moved. The plaintiff then hoped that having shifted the first two barriers of the southern group of Separate Barriers, he would be able to achieve a similar outcome with the last two barriers of the “conga line”, thus clearing access to the entrance for the truck. There was no one in the vicinity who was available to assist the plaintiff in this task.
I should add that the evidence discloses that the Separate Barriers were not full of water, though it was unclear how much water was in them.
The plaintiff grabbed the top of the first barrier of the Separate Barriers, and to quote his evidence, “planted myself and just give it everything I got to move that” (T28.3). In so doing, he was thinking “you know surely someone’s going to turn up to give us a hand in a second” (T28.6-7). This did not occur. When he grabbed the first of the bundle of three barriers, he injured his neck. He said he felt like he just “tore all my neck and shoulder muscle” (T28.12-13).
Sometime thereafter, the three labourers who had helped him on the previous day, arrived. As it transpired, they did not need to do anything in relation to the three barriers, as the “conga line” had started to move again; Graham, having recommenced operating his excavator. This, the plaintiff said, occurred about three minutes after the Incident. After the task of moving the line by the excavator had concluded, he had a conversation to the following effect with Graham:

Mr Palmer: It was kind of, like, like, "Graham, what happened mate? Why did you stop?" And he just said, "The so and so trucks weren't supposed to go through there after 8 o'clock." And I just went, "Mate", I said, "I've hurt myself." And he just--

The plaintiff then went to the nurses’ station feeling like he had been fobbed off by Graham. On the way down to the nurses’ station, he spotted the truck and had a conversation with the driver to the following effect:

Mr Palmer: Well, I wanted to [have a conversation with the truck driver] because he, he was like growling at me. And I just said, "What's wrong mate?" He's gone, "Why, why did you leave them barriers stuck in the gate?" I said, "It wasn't me mate. I got told youse not supposed to go through there after 8 o'clock." He said, "It was 9 o'clock we got told." I went, "Righto mate, I've got to get going." Then I went down the nurses' station.

I shall return to these two exchanges later in these reasons as Cambra, to some extent, seeks to rely upon them.
The plaintiff’s injuries to his neck were indeed severe. The nature of these injuries is set forth in Dr Cockbain’s various reports. Initially, the plaintiff underwent a discectomy and fusion procedure, and then finally on 14 February 2018 he had surgery for prosthetic discs.
He has not worked since the Incident.

The Medical Evidence

After the plaintiff’s initial consultation, Dr Hopcroft noted that he “does not appear to exaggerate his symptoms in any way” (Ex P1, p3), and his subsequent observations reveal that he was wholly satisfied that the full extent of the plaintiff’s reported symptoms were directly attributable to the Incident on 29 November 2007.
In June 2008, Dr Hopcroft assessed the plaintiff as having a whole person impairment of 16% (Ex P1, p6). By March 2017, Dr Hopcroft opined that this had increased to 23% (Ex P1, p20), and then to 27% by September 2018 (Ex P1, p 25). In Dr Hopcroft’s final report of 27 September 2018, he was of the opinion that the plaintiff “remains at risk of accelerated deterioration in adjacent facet joint and disc levels to his already three operated levels, and could still face further surgery in the longer term” (Ex P1, p 25).
Dr Hopcroft’s view has been that the plaintiff is unfit to return to any form of employment, regardless of the capacity in which he is employed. On 18 June 2008, Dr Hopcroft opined that the plaintiff was “...totally unfit to contemplate a return to the workforce” (Ex P1, p5). By May 2009, he was of the opinion that “I do not believe anything will allow this patient’s improvement to reach a level where he could be considered to return to the workforce in any of the areas in which he has education or experience” (Ex P1, p 9) and that he believed the plaintiff “can be deemed as having reached maximal medical improvement” (Ex P1, p10). By November 2011, following the plaintiff’s double level anterior cervical discectomy and disc replacement surgery performed in March that year, Dr Hopcroft suggested that the plaintiff “will never return to the workforce” (Ex P1, p 15). In March 2017, Dr Hopcroft was of the opinion that the plaintiff was “simply unemployable” (Ex P1, p 19) and finally, noted in his last report dated 27 September 2018 that “the patient remains totally unfit to contemplate a return to any form of employment. Even sedentary part-time work is beyond his capabilities” (Ex P1, p 24).
Dr Hopcroft was of the opinion that the plaintiff’s symptoms constituted a significant impediment to his personal life. In June 2008, it was reported that the plaintiff “is currently struggling with all activities of daily living” (Ex P1, p 6), and in May 2009, Dr Hopcroft maintained that the plaintiff’s symptoms had “severely compromised all his activities of daily living” (Ex P1, p 8). In November 2011, it was suggested that the plaintiff “requires some significant assistance with home maintenance which to date has been denied him, and I believe that extends to at least six hours per week…” (Ex P1, p 15); and finally in September 2018, noted that the plaintiff “is unable to undertake the previous usual home maintenance chores due to the aggravated levels of pain that he suffers” (Ex P1, p 24). Particular emphasis was placed on the fact that the plaintiff’s ability to drive has been severely compromised.
The reports of Dr Hopcroft suggest that the plaintiff has reached maximal medical improvement in respect of the injuries attributable to the Incident on 29 November 2007.

Plaintiff Liability Reports

The plaintiff relied on two reports of Mr David Cockbain. Mr Cockbain is a consulting engineer specialising in occupational health and safety, and risk management. As I have indicated, Mr Cockbain’s reports are uncontradicted by the defendant and the cross-defendants, and he was not required for cross-examination. As a consequence of this, I will only briefly summarise his conclusions.
Mr Cockbain opined inter alia:

that a single road barrier empty of water weighed between 50 to 70 kgs;

that the National Code of Practice for Manual Handling provides that, in relation to weights above 16 kgs and up to 55 kgs, mechanical assistance and/or team lifting arrangements should be provided to reduce the risk of injury associated with these heavier weights;

that the manual handling systems provided by the defendant did not provide the plaintiff with a safe and effective means to undertake the work of his role safely;

that the systems of work adopted by the defendant were insufficient and did not provide the plaintiff with safe and effective methods to undertake the work of his role safely;

that the defendant’s obligations in relation to manual handling were well known and relatively cheap to implement;

as to foreseeability, that manual handling and body stressing are well known and major causes of musculoskeletal injuries in the road construction industry;

that “the plaintiff would have needed to exert high and sustained force in order to move the water filled traffic barrier”;

that the defendant failed to provide the plaintiff with adequate training, formal induction and instructions in respect to manual handling tasks;

that the defendant failed to conduct adequate risk assessment and safe work procedures that addressed the hazards to the safe performance of the plaintiff’s work, and that were in accordance with relevant Regulations and Codes of Practice;

that preventative measures were well known, simple and inexpensive to provide;

in his first report dated 13 June 2014, that there were twenty three factors which contributed to the plaintiff’s injury; and

that there were reasonably preventative actions available which, if implemented, would have significantly reduced or in fact obviated the risk to the plaintiff of sustaining a permanent damage-type injury.

The Plaintiff’s Claim against Workforce

It is important to observe at the outset that the case between the plaintiff and Workforce is to be determined pursuant to common law principles, as section 3B of the Civil Liability Act 2002 (NSW) (“CLA”) excludes actions of this nature from the Act’s purview.
The plaintiff’s case against Workforce is that Workforce is liable to him as it failed to provide to him a safe system of work. Workforce’s liability is said to be based on alleged deficiencies identified by Mr Cockbain in his two reports.
The plaintiff’s case against Workforce is brought on two bases, namely:

reliant upon Workforce’s direct failure to provide a safe system of work; and

reliant upon Workforce’s vicarious liability for the breaches of Downer and Cambra.

In my view, an important factor in the analysis of the plaintiff’s case is the fact that his duties changed from what has been described as the “first phase” to the “second phase”. The second phase ultimately culminated in the Incident.
In the first stage of his employment, the plaintiff’s duties were on any view of it, light. In the second phase, he was required to undertake whatever task he was directed to perform by Downer’s staff. This exposed the plaintiff to a wide range of possible tasks, and thus a range of potential risks. The plaintiff was given no instruction by either Workforce or Downer as to how he was to go about the range of tasks which he may be required to undertake, nor was he instructed as to how to minimise the attendant risks. He was given no instructions beyond being told to do whatever he was asked to do.
The events of the period preceding the Incident are important here. As I have indicated, approximately a week before the Incident, the plaintiff was told to attend with two Cambra labourers to pick up barriers which had inadvertently been knocked down by a reversing truck. He did so, in the course of which task he unpinned the barriers and stood them up. He did so to some extent with help of one of the Cambra labourers. In so doing, he told the Court that he realised the extent to which the barriers swivelled on the pin which held them together, a process which he described (not unreasonably) as “articulation”. This became important in his decision-making in the events which led to his injury.
On the day before the Incident, he was directed by Kelly of Downer to assist two Cambra labourers in physically moving barriers across the Pacific Highway. Importantly, conventional stop/go traffic controllers were brought in so as to facilitate the safe execution of this process. As such, on no view of it could it be said that the plaintiff was undertaking conventional road safety work in attending to this task.
On the day of the Incident, he was again directed to assist in the further moving of barriers, which by now, as a result of his labours on the previous day, were on the western side of the Pacific Highway. He was instructed by Kelly of Downer to do this. As I have previously indicated, this task was achieved by the long line of barriers being dragged by a mini excavator driven by a Cambra employee named “Graham”. The plaintiff was working at the rear of the line of barriers, observing the last of them. For reasons which remain unexplained in the evidence, Graham stopped the excavator and left it without warning. By so doing, he caused the partial blockage of the sugar mill entrance which ultimately led to the Incident.
The plaintiff submitted that Graham’s stopping and his abandonment of the excavator without warning to the plaintiff, was a direct breach of Cambra’s duty of care, which I took to mean a breach in contradistinction to a failure to provide a safe system of work as had been alleged against Workforce and Downer. It was referred to by Downer as an act of casual negligence.
As I have indicated, Mr Romaniuk SC submits that the case against Workforce is both a direct one, and one in vicarious liability in respect of the acts and omissions of Downer, and potentially Cambra through Downer.
As to Workforce’s direct liability, he submits that the case bears no resemblance to TNT Australia Pty Ltd v Christie [2003] NSWCA 47, which he described as a “classic labour hire case”, where the labour hire company did nothing other than send its employee to another contractor’s work site. Here, he says, Workforce knew of the nature of the plaintiff’s duties during the first phase of his employment at Broadwater, and through Mr Gowan, was aware of, and complicit in, the change of the role of the plaintiff, as he entered the second phase of his employment. As such, it was submitted that Workforce was aware that the plaintiff’s duties were becoming “free ranging”. In the face of that change, no instruction was provided as to the range of work to which the plaintiff would now be exposed, nor was there any training provided by Workforce. There was also no attempt made by Workforce to in any way limit the duties which the plaintiff may be required to perform.
Important in this regard, is the conversation which I set forth in paragraph 25 of these reasons. Mr Halligan for Workforce submitted that I could not find that the conversation took place within the context of discussions concerning the change in role of the plaintiff. He suggested to me that to infer that context to the conversation, would be contrary to the judgment of McColl JA in Hunt v Knight Frank (NSW) Pty Ltd & 2 Ors [2005] NSWCA 139 at [43]. That submission must carry with it the proposition that to draw such an inference as to the context of the conversation, would be to engage in no more than speculation.
I do not believe it is necessary to descend to the drawing of inferences in relation to the conversation. On the same page of the transcript in which the plaintiff deposes to being told by Mr Gowan “Just do what they ask you to do, mate… Keep your nose clean and just do what they ask you to do” (T.23.26-28), is the following exchange:

Q: Did Mr Gowan come to see you at the site after your job had changed, after that conversation with Mr Bibby?
A: Yeah, maybe, maybe once, once. Once or twice.
(emphasis added)

It seems to me that that evidence makes abundantly clear that the conversation was indeed in the context of the plaintiff’s change of work duties. If I am in fact required to draw an inference that this is the case, I am more than comfortable in so doing.
Workforce, on the other hand, submitted that this case was a classic “labour hire” arrangement with the consequence that Downer was the plaintiff’s host employer. For reasons which I have just articulated, I do not believe that this was the case. Workforce was aware of the functions which the plaintiff was initially performing for Downer, and most importantly, was aware of the fact that those arrangements had changed to a more free ranging need for the plaintiff to be available to assist on the site as required. Workforce acquiesced in these changes.
I thus find:

that Workforce were aware of the change of the role performed by the plaintiff as he entered into the second phase of his employment;

that Workforce acquiesced in such change;

that Workforce provided no training to the plaintiff consequent upon his change in role; and

that Workforce did not attempt to place any limit on the duties which the plaintiff might be asked to undertake.

It follows that I accept that Workforce owed a direct duty to the plaintiff to provide a safe system of work. I find that Workforce breached that duty, and that such breach led to the plaintiff’s loss.
I also find that Downer had the same duty, and that as a consequence, Workforce also has a vicarious liability to the plaintiff arising out of Downer’s breach of its duty to provide a safe system of work.
That there has been a breach of that duty, is clearly established by the reports of Mr Cockbain. In this regard, while I have commented earlier on the fact that Mr Cockbain’s reports were uncontradicted, it is noteworthy that the reports also passed without mention in the submissions of Workforce. Downer made high level criticism of Mr Cockbain’s twenty three conclusions expressed in his first report. Downer characterised the report as being premised on it being Downer’s “intent for the plaintiff to attempt to move the barriers on the date of the accident” (Downer written submissions at [53]). I do not believe that the conclusions of Mr Cockbain in his first report are so based. On no view of it, can it be suggested that they played any part in his second report.
I should also add in relation to the Downer submission, that Downer did not give any evidence as to its “intent” in relation to the plaintiff moving the barriers on the day of the Incident. It is clear that Downer was quite content for the plaintiff to be involved in the physical handling of the barriers, as it had instructed him to do so twice in the recent past. There is no basis to find that Downer objected to the plaintiff handling the barriers on the morning of the Incident.

Workforce’s Claim against Downer

Unlike the position as between the plaintiff and Workforce, Workforce’s cross-claim against Downer, and Downer’s cross-claim against Cambra, fall to be determined pursuant to the provisions of the CLA.
Mr Chiu, who appeared for Downer, in his written submissions summarised Downer’s position as following:

Downer’s submission in short is that this accident occurred because the plaintiff made an unforeseeable decision to attempt to move the water-filled barriers on his own, despite the fact that:
(a)   it did not form part of his duties at the site;
(b)   he was not asked by anyone from Workforce, Downer, or Cambra to do it;
(c)   he had never done anything like it in the 12 months he had been at the site – on two earlier occasions he had anything to do with the barriers, he had been directed to undertake a specific task, with other workers, and under supervision;
(d)   he knew that he could not move the barriers on his own (T54.31); and
(e)   there were available to him other ways of managing what was, in reality, a traffic management problem which fell within his usual role, rather than a problem to be solved by manual handling.
This case thus bears some similarities to South Sydney Junior Rugby League Club Ltd v Gazis [2016] NSWCA 8. As in that case, the real issue is whether Downer was negligent in failing to instruct the plaintiff (either directly, or indirectly through some manual handling procedure or practice) not to attempt to move water-filled barriers on his own without supervision. Downer’s submission in short is that it was not foreseeable to Downer that the plaintiff
might attempt to do; that Downer’s duty to the plaintiff did not extend to giving such an instruction; and that even if such a direction had been given, it would not have avoided the accident.
If the court finds that Downer was negligent, then Downer’s submission is that:
(a)   The largest share of the blame lies with Cambra, whose worker inexplicably left part of the barriers blocking the entrance thereby creating the dangerous situation that confronted the plaintiff. This was the real and proximate cause of the accident. It meant that the plaintiff faced difficulty deploying any system of safe manual handling (even if it had been imposed by Downer); or any system of safe traffic management (even if it had been taught by Workforce);
(b)   Part of the fault lay with Workforce, for failing to provide adequate training for the plaintiff to manage traffic safely in the circumstances (such as by directing the bagasse truck to park on the side of the highway until the entrance reopened), despite sending the plaintiff off to work at the site as a traffic and safety controller;
(c)   The least culpable party was Downer, whose fault was limited to an alleged failure to instruct the plaintiff not to attempt manual handling of barriers on his own; and
(d)   There should be a reduction in liability for the plaintiff’s contributory negligence.

The Duty of Care

Downer did not dispute that it owed the plaintiff a duty of care, and ultimately submitted that the nature of that duty of care was, in the circumstances of the case, unimportant. This represented a shift in its position. Initially, Downer submitted there was a dispute as to the nature of the relationship between the plaintiff and Downer, which in turn determined the scope of the duty.
By that submission, as I understood it, Downer was pointing to the possibility that it could have a different duty towards the plaintiff if it was found to be the “host employer” on the one hand, or if it was found to be a contractor, on the other.
This distinction, however, was conceded by Mr Chiu to be immaterial, as he conceded that the distinction was probably a distinction without a difference, as in either case, his client owed the plaintiff a duty of care. At paragraph 33 of his written submissions, Mr Chiu submitted:

It should be noted that in the circumstances of the present case, the practical difference between the duty that Downer would owe to the plaintiff as a host employer, and that it would owe as a head contractor, might not be great. In both instances the duty is to take reasonable care to provide a safe system of work. The key difference is that as a host employer, that duty would be non-delegable. However, because Downer has joined on the second cross-claim the relevant delegee, Cambra, the court is able to apportion to Cambra its share of any fault committed by Cambra; whereas if there was no cross-claim, the court would apportion to Downer both Downer’s share and Cambra’s share of any fault.

The Relevant Risk of Harm

Mr Chiu then directed my attention to the need to identify the relevant risk of harm for the purposes of section 5B of the CLA. He submitted that the relevant risk of harm must encompass circumstances of the kind suffered by the plaintiff (Uniting Church in Australia Property Trust (NSW) v Miller (2015) 91 NSWLR 752 at [110] and [118]). He also stressed the need for particularity where there were potentially simultaneous risks to which the plaintiff might be exposed, while following the line of the barriers (Perisher Blue Pty Ltd v Nair-Smith [2015] NSWCA 90 at [116]). Downer submitted that I should find the relevant risk of harm was:

“The risk that the plaintiff might suffer injury from attempting to alleviate, by physical force, a blockage of the site entrance due to some barriers being left in the way while being moved.”

It was said by Downer that this formulation of risk properly identified the source and causal mechanism of the plaintiff’s injury (Avopiling v Bosevski [2018] NSWCA 146 at [43]).
I believe that the formulation of the relevant risk of harm advanced by Downer is too narrow. In my view, this narrow formulation obscures the true source of potential injury (Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330 at [60]). In my opinion, it also too narrowly focuses on the particular hazard which caused the injury (Port Macquarie Hastings Council v Mooney [2014] NSWCA 156; see also Coles Supermarkets Australia Pty Ltd v Bridge [2018] NSWCA 183 at [22]).
The narrow formulation urged upon me by Downer also has a tendency to confine the risk to the precise set of circumstances which might have occurred. Those risks of course must be within the postulated risk but the risk is not to be so confined (Uniting Church in Australia Property Trust (NSW) v Miller (2015) 91 NSWLR 752 at [118]; see also Erickson v Bagley [2015] VSCA 220 at [40]).
The relevant risk of harm, for the purposes of section 5B of the CLA, in my view would be better described as:

“the risk that the plaintiff might suffer injury by manual handling of road barriers”

Foreseeability

Downer went on to submit that the Incident was not foreseeable pursuant to the provisions of section 5B(1)(a) of the CLA. It makes this submission based inter alia on the fact of its assertion that in the 12 months working at the Broadwater site, the plaintiff had nothing to do with barriers, nor had he undertaken any heavy manual handling tasks. Downer acknowledged that there were two exceptions to this proposition, being the righting of the barriers knocked over by the truck (occurring approximately one week prior to the Incident), together with the direction that the plaintiff assist the Cambra labourers to move barriers across the Pacific Highway (occurring on 28 November 2007, the day before the Incident). While accepting that both of these tasks were undertaken at its direction, Downer submits that these events did not put Downer “on notice that the plaintiff might in future take it upon himself, without direction, to attempt to move barriers on his own and without supervision”. I do not agree.
Similarly, I believe that Downer’s formulation of what was reasonably foreseeable is too narrow. Downer, in its written submissions, says that:

The fact that the plaintiff says that, on one occasion and on an unknown date, he was told to “give the boys a hand, whatever they need you to do” (T21.25) does not detract from the above. His evidence was that his role did not actually change after that time T80.10-13.

In my view, having directed the plaintiff to manually handle barriers without any form of instruction, restriction or training, the foreseeability that the plaintiff might conclude it appropriate to manually handle the barriers again, without supervision, was clear.
It seems to me that, following the change of role, the range of possibilities of tasks which might confront the plaintiff, became much wider than that for which Downer contended. More particularly, the plaintiff, far from being discouraged to manually handle the barriers, was directed to do so in the immediate period preceding the Incident. The direction by Downer to the plaintiff to undertake those tasks carried with it the foreseeability that the plaintiff might suffer harm as a result of manual handling of barriers.

Risk of Harm Not Insignificant

Downer further submits that it must be established before any finding can be made of liability, that the risk of harm to the plaintiff was “not insignificant” (section 5B(1)(b) of the CLA). It drew my attention to the decision of Garling J in Benic v State of New South Wales [2010] NSWSC 1039 at [101]. Those submissions however, were based on the same factual foundation as was said to found the foreseeability arguments pursuant to section 5B(1)(a).
I reject those submissions for the same reasons as I have rejected them in relation to foreseeability.

Section 5B(1)(c) of the CLA

In this regard, Downer characterised the plaintiff’s claim relevantly as being as follows:

As far as can be discerned, the plaintiff’s criticisms of Downer essentially come down to two precautions which Downer is said to have failed to take:
(a) Instructing the plaintiff (either directly at some unspecified time, or indirectly through some process of training, induction or procedure) not to attempt to move water-filled barriers on his own; and
(b) Having in place, at the time of the accident on 29 November 2007, manual handling procedures or risk management plans for safe movement of the barriers (see T.141.17).
In his oral submissions, senior counsel for the plaintiff described the second of these as amounting to Downer’s “systems” failure or breach.
Both allegations should be rejected.
In respect of (a), the circumstances of this case are not dissimilar to what occurred in South Sydney Junior Rugby League Club Ltd v Gazis [2016] NSWCA 8…

I do not believe that South Sydney Junior Rugby League Club Ltd v Gazis [2016] NSWCA 8 is analogous to the present case. In Gazis, there was a finding that the employee was not acting within the scope of his duties. In this case, Downer had directed the plaintiff to assist in manually handling barriers as part of his new free ranging work duties. Downer accepted that distinction (Downer written submissions at [58]), but it then went on to submit that:

The underlying premise in Gazis applies equally in the present case: that a duty to take reasonable care to provide a safe system of work does not extend to the giving of an instruction not to perform a potentially dangerous task that does not fall within the scope of the worker’s usual or specified duties.

I do not believe that this is an appropriate characterisation of what occurred, as I do not believe that the task which the plaintiff undertook can be fairly described as “potentially dangerous”, nor do I believe that it was not within the scope of his usual or specified duties.
In respect of the plaintiff’s case that Downer failed to provide manual handling procedures or risk management plans for safe movement of the barriers, Downer submits that the thrust of Mr Cockbain’s criticism was that the movement of the barriers needed to be done with “mechanical assistance”, and yet that was the very method by which the barriers were being moved that morning. The submission explained that:

The problem that confronted the plaintiff was not that Downer failed to have in place manual handling procedures for him to try to move the barriers safely; the problem was that Cambra’s mini-excavator driver stopped midway through the deployment of that safe method, a casual act which then created an unsafe situation.

The submission had merit insofar as it went, but it did not go far enough. Downer’s submission did not meet the reality of what occurred; namely, that there was no mechanical assistance available to shift the Separate Barriers. Nor was there available the manual labour of others upon which the plaintiff could call. Similarly, there was no mechanical assistance to move the last of the long line of barriers in the event that the plaintiff succeeded in moving the first of the Separate Barriers.
Next, Downer said that no criticism can be directed to the way in which the plaintiff was directed to manually handle the barriers prior to the date of the Incident. It was said that he pushed them in precisely the manner described by Mr Cockbain as being typical. This led to the submission that the problem was not in the absence of manual handling procedures; rather it lay in the fact that the excavator driver left no capacity to employ these procedures, insofar as Graham suddenly left the plaintiff on his own, without assistance.
I do not accept this submission. There is no evidence that the defendant in fact gave any direction to the plaintiff as to how to handle the barriers manually. Indeed, there was a total failure on the part of Downer to provide instruction of any description as to whether manual handling of the barriers was to be undertaken, and if so the manner in which that task was to be undertaken and the risks which attended these tasks. This left the plaintiff in an emergency situation where he considered that it was appropriate to attempt to move the barriers in the manner in which he did.
No submissions were made to the effect that the factors set forth in section 5B(2) militated against a finding contrary to Downer pursuant to section 5B(1)(c).
In summary, in relation to the matters set forth in section 5B(1) of the CLA, I find that:

the risk of harm to which the plaintiff was exposed was as set forth in paragraph 81, herein namely “the risk that the plaintiff might suffer injury by manual handling of road barriers”;

that for the reasons set out in Mr Cockbain’s reports, the risk was foreseeable, indeed well known;

that the risk was not insignificant; and

that for the reasons set out in Mr Cockbain’s reports, a reasonable person in the defendant’s position would have taken those precautions.

As to the section 5B(2) factors, I find that for the reasons previously set forth in Mr Cockbain’s reports, a reasonable person would have taken precautions against the risk of harm.
I thus find that breach is established.

Causation

Downer correctly submitted that the determination of factual causation pursuant to section 5D(1)(a) of the CLA is a recent statutory statement of the “but for” test of causation (Strong v Woolworths (2012) 246 CLR 182 at [18]). Downer further submitted that:

Senior counsel for the plaintiff submitted, in response to the allegation of contributory negligence, that the plaintiff was faced with an emergent situation or “agony of the moment” which had to be dealt with quickly (T138.48). Indeed, the plaintiff’s evidence was that he reacted on the first thought that came to his head (T95.43), and that it was the quickest thing to do (T95.26). This was despite his knowledge that he could not push or pull the barriers on his own (T54.31), and his knowledge that the barriers should be moved with an excavator.
This throws up a difficulty on the causation case against Downer. Suppose that Downer had instructed the plaintiff at some earlier time, such as when he attended induction that he must not attempt to move barriers on his own. Suppose also that Downer had in place manual handling procedures that prohibited movement of the barriers other than in teams, or with excavators. For Downer to be liable, the court needs to find that, with the benefit of those things, the plaintiff would not have tried to move the barrier on 29 November 2007.
The court should not make that finding. When it was put to the plaintiff in cross-examination that there were alternative ways to deal with the “agony of the moment”, his response was in effect that none of those alternatives were feasible in the circumstances(see T90 – T93), in part because they posed their own dangers. That being the case, regardless of any prior instruction or procedures disseminated by Downer, the plaintiff would still (thanks to the action of the Cambra excavation driver) have faced the same emergency. He would have attempted any of the traffic management solutions put to him in cross-examination, for the same reason he rejected them in cross-examination. He would have adopted the same plan as he did on 29 November 2007 to try to turn the end barriers slightly to open a pathway, as being the quickest and “sensible-est” thing to do (T95.30). He would have done that regardless of instructions otherwise, because as at 29 November 2007 he was already aware of the substance of those putative instructions – i.e. only move the barriers with a mini-excavator, and do not try to move joined-up barriers by himself.

I do not agree with this submission. It seems to me that if instruction had been given to the plaintiff that he was either forbidden to manually handle barriers, or alternatively forbidden to manually handle barriers other than with the benefit of the assistance of others, then even in the emergency with which he believed he was confronted, he may not have undertaken the actions which he did.
It was not suggested that any issues arise in the proceedings pursuant to section 5D(1)(b) of the CLA. In any event, I do not believe that such issues arise.

Potential Time Bar Issues on Workforce’s Claim Pursuant to Section 151Z(1)(d) of the Workers Compensation Act 1987 (NSW)

Downer raised a potential issue of a time bar applying to certain of the workers compensation payments made by, or on behalf of, Workforce pursuant to the provisions of section 151Z(1)(d) of the Workers Compensation Act 1987 (NSW). Downer accepts, however, that this issue would only arise if I was to find that Downer was negligent but Workforce was not. This is not my finding. I have found both Workforce and Downer to be negligent, and as such the provisions of section 151Z(1)(d) are not applicable (South West Helicopters Pty Ltd v Stephenson [2017] NSWCA 312; (2017) 327 FLR 110 at [169]ff; CSR Timber Products Pty Ltd v Weathertex Pty Ltd (2013) 83 NSWLR 433 at [33]-[35]).
Thus, Workforce’s claim for contribution against Downer proceeds under the provisions of section 5(1)(c) of the LRMPA. Initially, it was pleaded that this cause of action was time-barred, but that contention was ultimately not pressed.

Workforce’s Contractual Claim against Downer

As I have indicated at the outset of these reasons, Workforce’s claim against Downer is in both contract and tort. The contract, however, was never proved in evidence, and as such, the contractual claim could not succeed.

Downer’s Claim against Cambra

Downer summarised its case against Cambra as follows:

Nature of the Cross-Claim
As in the case of Workforce’s cross-claim against Downer, assessment of whether Cambra has been negligent is to be made under the CLA.
Cambra’s Duty of Care
At the time of the accident, the plaintiff and Cambra were both engaged in the activity of transferring the line of barriers from the north of the site entrance to the south. Both were directed by Downer to undertake that activity together.
In undertaking that activity, Cambra (including its employees, for whom it was vicariously liable) owed to the plaintiff a duty to take reasonable care to avoid foreseeable injury to him: see Matthew Xavier Carton v Rainbow Plumbing & Drainage Pty Limited [2013] ACTSC 267.

Cambra’s Breach of Duty
Downer adopts the oral submissions of senior counsel for the plaintiff as to Cambra’s breach of duty (T141.12-17 & T143.29-32).
If the court is satisfied that the relevant risk of harm identified in [37] above was foreseeable (s.5B(1)(a)) and “not insignificant” (s.5B(1)(b)) as against Downer, that same conclusion should be reached as against Cambra.
For the purposes of s.5B(1)(c), Cambra’s breach concerned a casual act of negligence of the Cambra worker Graham in stopping the excavator without explanation, leaving the tail of the line of barriers in tow blocking the site entrance, apparently without any forewarning to the plaintiff. The relevant precaution Cambra failed to take was simply the precaution of completing the transfer task without stoppage. The fact that the task was being done
adjacent to open traffic, at peak hour, heightened the need for it to be done efficiently without interruption.
Cambra’s breach of duty was necessary cause of injury
If Cambra had not left the tail of the line of barriers blocking the site entrance, the bagasse truck would have been able to enter the site, and the plaintiff would not have had cause to attempt to move the barriers. Factual causation under s.5D(1)(a) is established.

Cambra accepted that I am bound by the decision in Matthew Xavier Carton v Rainbow Plumbing & Drainage Pty Limited [2013] ACTSC 267, but in order to protect its position on appeal, submits that the case is wrongly decided. It do so on a formal basis. Accordingly, it is sufficient for me to note this submission.
Cambra submits, however, that the duty postulated in Carton is only a duty owed to someone taking reasonable care for their own safety. In support of this contention, it relies on the judgment of Gummow J in Road Traffic Authority of NSW v Dederer (2007) 234 CLR 330 at [45]. It also relies on the judgment of the Court of Appeal in Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98 at [159].
I do not believe that these authorities assist Cambra. In Dederer, Gummow J was referring to the duty which a road authority owes to a road user; while in Reid, the Court of Appeal was referring to the duty which an occupier owed to an invitee. These situations bear little similarity to the duty which Cambra owed to the plaintiff, which, in my view, was owed to him regardless of his failure to take adequate precautions for his own safety. If indeed, the plaintiff did take inadequate care for his own safety, that would be remedied by a finding of contributory negligence, rather than negating the existence of the duty of care itself. Indeed, Cambra seeks a finding of contributory negligence against the plaintiff.
As to the identification of risk of harm and the factors relevant to section 5B of the CLA, Cambra adopted the submissions of Downer.
It seems to me however, that the risk of harm which is required to be identified in the case of Cambra, is different from that identified in the case of Downer. That risk, in my view, was a risk that if it did not carry out the task of moving the barriers with care, the plaintiff might be injured in manually handling a barrier or barriers, the need for which being occasioned by that failure.
In relation to the sudden, unannounced and unexplained stopping of the excavator by Graham, Mr Kelly, counsel for Cambra, suggested that there may have been fifty reasons for Graham to have stopped and left the excavator. That is true; in fact, there may be more. I do not see that fact as assisting Cambra, however. If there was a relevantly valid reason why Graham left the excavator part of the way through the task, without communicating to the plaintiff, he could have been called to explain that reason. Graham was clearly within Cambra’s “camp”, and his absence is entirely unexplained. As a consequence, I am comfortable in inferring that his evidence would not have assisted Cambra (Jones v Dunkel (1959) 101 CLR 298).
Cambra also placed some reliance upon the fact that Graham said to the plaintiff that he believed that trucks were not allowed to enter the main entrance after 8.00am. It will be recalled that the plaintiff also gave evidence that the truck driver said to him that any temporal restriction of that nature was a restriction that applied after 9.00am (together, a “Temporal Restriction”). I understood Mr Kelly’s submission to be that, because Graham apparently believed that there would be no trucks entering into the main entrance after 8.00am, it was not negligent for him to stop his excavator where he did, and leave it without reference to the plaintiff.
As I pointed out to Mr Kelly, the utterances of both Graham and the truck driver as to any Temporal Restriction, was hearsay. It was said by Mr Kelly that the evidence was nonetheless unchallenged, and should be accepted. I do not accept this. All that could have been challenged by way of cross examination was the fact that the utterances were made to the plaintiff. No cross examination would be expected to achieve any clarity as to whether there was in truth a Temporal Restriction. It is in my view, only the fact of such restriction, and its nature, that could possibly be relevant.
I have previously commented on the fact that I have drawn an adverse Jones v Dunkel inference against Cambra in respect of its failure to call Graham. In my view, if it wished to rely on any argument in relation to a Temporal Restriction, it was incumbent on Cambra to call Graham to establish what he had been directed in relation to the issue. I infer that Graham’s evidence on the issue would not have assisted Cambra. I also note that Cambra did not seek to adduce any other form of evidence (oral or documentary) going to the existence of any Temporal Restriction.
Cambra raises the same issues in relation to the sub paragraphs of section 5B of the CLA as were raised by Downer. I reject them for the same reasons as I rejected Downer’s submissions on that topic.
As to causation, Cambra says that the plaintiff’s loss is completely attributable to a “bad choice” by the plaintiff in attempting to move the first barrier. It makes several suggestions as to what alternate causes of action were available to the plaintiff. None of these supposed alternate causes of action are supported by expert evidence, and some in my estimation would have involved the plaintiff walking onto the centre of the Pacific Highway to either converse with the driver or stop vehicles overtaking the truck while it was stationary. That could hardly be expected of the plaintiff, in my view.
Far from accepting Cambra’s submission that its breach did not cause the plaintiff’s injuries, I believe that the unexplained decision of Graham to stop the excavator and abandon it without notice to the plaintiff, was directly causal of the plaintiff’s injuries in the clearest possible fashion.
I thus find that Cambra has breached its duty of care owed to the plaintiff.
In relation to Downer’s claim for indemnity from Cambra, it submitted as follows:

Contractual indemnity claim is available
[85] In objecting to the tender of Ex XD1-1 (the Cambra subcontract), counsel for Cambra submitted that because there is no evidence as to the scope of the services to be provided under the subcontract, Downer cannot prove that there was a breach of contract, and so cannot prove an entitlement to indemnity for that breach.
[86] The problem with that submission is that the indemnity given under cl 22 of the Cambra subcontract is not limited to loss or liability incurred by Downer from Cambra’s breach of contract. Under cl 22.1(f), it extends to loss incurred in respect of, in relation to or in connection with “any negligent act or failure to act by [Cambra]”. The indemnity thus extends to any loss or liability incurred by Downer (including liability as a result of any non-delegable duty it owed to the plaintiff) from Cambra’s negligence in halting the excavator before the transfer of the barriers was complete.
[87] Downer concedes that because of the carve-out operation of cl 22.2(a) of the Cambra subcontract, the availability of the indemnity may be of little practical utility to Downer, as the same outcome would be achieved on an apportionment between Downer and Cambra under s.5(1)(c) of the LRMPA.
[88] In its defence to the second cross-claim, Cambra has pleaded that Downer’s claim for indemnity under the Cambra subcontract is time barred.
[89] Given [87] above, this may be an arid debate. Nonetheless, Downer’s submission is that the claim is not time-barred because under s.14(a) of the Limitation Act 1969, Downer has 6 years from the date its cause of action for indemnity accrued to bring the claim.
[90] Where a contract indemnifies a party against liability to third parties, time begins to run when the “insured event” – being liability to the third party (in this case to Workforce under the first cross claim) is established, either by a court or by agreement between the parties: Distillers Co Bio-Chemicals (Aust) Pty Ltd v Ajax Insurance Co Ltd (1974) 130 CLR 1 at 25-26 per Stephen J; Post Office v Norwich Union Fire Insurance Society Ltd [1967] 2 QB 363 at 373 - 374 (per Lord Denning M.R.) at 377-378 (per Salmon LJ); Allianz Australia Insurance Ltd v Bluescope Steel Ltd [2014] NSWCA 276 at [267].

Cambra relies on the decision of the Court of Appeal in Globe Church Incorporated v Allianz Australia Insurance Ltd [2019] NSWCA 27 which it submits is contrary to Downer’s submissions regarding the date at which the cause of action for indemnity under the subcontract accrued.
The issue of whether contractual indemnities are statute barred, as Downer submitted, is probably an arid one due to the fact that even if the contractual indemnity claim is time barred, the same practical outcome is achieved between Downer and Cambra pursuant to the provisions of section 5 of the LRMPA (see [87] of Downer’s written submissions, extracted above). That being the case, I propose to only touch on the issue briefly.
In my view, Globe Church is not authority for the proposition that in all cases in which indemnity is sought, time runs from the date of the damage in respect of which indemnity is sought. Globe Church, in my view, is a special case. The general position which would govern the present case, is as set out by Downer in [90] of its written submissions (see paragraph 119 of these reasons).
Globe Church was concerned with a property damage insurance policy. In paragraph 209 of the judgment, Bathurst CJ, Beazley P and Ward JA stated:

Absent a provision in an indemnity insurance policy that makes lodgement of a claim a condition precedent to liability, the concept of a promise to indemnify (to make good the loss or to hold harmless against loss) in the context of a property damage insurance policy is such that the promise is enlivened when the property damage is suffered. Unless it be necessary for there to be a claim made on the insurer to give rise to the liability, it is at the point of property damage that the insured has not been held harmless against the loss and (leaving aside any defences that might be raised on such a claim) would be entitled to sue to enforce the promise to indemnify. Such a claim is recognised as being a claim for unliquidated damages (albeit that the amount necessary to make good the loss is to be calculated in accordance with the basis of settlement clause in the policy).
(emphasis added)

In my view, the decision in Globe Church is limited to the position of time bars in relation to property damage insurance policies (part of the species of so-called “indemnity policies”) rather than an insurance contract providing for indemnity against liability to third parties (so-called “liability policies”).
In Globe Church, at [154], Bathurst CJ, Beazley P and Ward JA referred to the decision of Giles J in Penrith City Council v Government Insurance Office of New South Wales (1991) 24 NSWLR 564, and stated (emphasis added):

Thus the ratio of Penrith City Council was that, under a liability insurance policy, the cause of action does not accrue until the insured’s liability to the third party is established (whether by judgment, settlement or adjudication) (see at 568-569 in a passage approved by this Court in CGU Insurance Ltd v Watson at [59], [61]; and also Kone Elevators at [21]). Any suggestion that before liability accrues under such a policy there must be notification to the insurer and failure by the insurer to indemnify is obiter.

This, as Downer submitted, is the position in relation to time limitations in respect of its indemnity claim under the subcontract.

Contributory Negligence

In McNeilly v Imbree (2007) 47 MVR 536 at [106], Basten JA said of the “just and equitable” test where used in assessing contributory negligence:

The test of apportionment, based upon what is “just and equitable”, undoubtedly requires an evaluative judgment of an imprecise kind, permitting the trial judge a reasonably broad range within which any particular finding will not be open to challenge: see Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529; 59 ALJR 492 .

In Podrebersek, the High Court said:

"The making of an apportionment as between a plaintiff and a defendant of the respective shares in the responsibility for the damage involves a comparison of both culpability, ie. Of the degree of departure from the standard of care of the reasonable man and the relative importance of the acts of the parties in causing the damage. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case; for example, the circumstances of some cases may be such that a comparison of the relative importance of the acts of the parties in causing the damage will be of little, if any, importance.”

Each of the defendants submits that the plaintiff failed to take adequate care for his own safety, such as to justify a finding of contributory negligence against him.
The defendants each propound various alternatives which were available to the plaintiff when confronted with the position in which he found himself. As I have previously indicated, several of them inherently involved the proposition that the plaintiff should have entered into and stood in the middle of the Pacific Highway in order to address the difficulties being confronted by the frustrated truck driver unable to turn into the sugar mill entrance. They led no expert evidence in relation to the issue. I do not believe there is any force in these submissions.
It seems to me that the situation facing the plaintiff was one to which the “agony of the moment principle” described by Professor Fleming in Fleming’s The Law of Torts 10th edition, at [12.200] applies. There, the learned authors state:

On the other hand, a person’s conduct in the face of a sudden emergency cannot be judged from the standpoint of what would have been reasonable in the light of hind-knowledge and in a calmer atmosphere conducive to a nicer evaluation of the alternatives.

The authors footnote the following dicta of Cardozo J in Wagner v International Railway Co 232 NY 176 at 177 (1921) where His Honour stated:

‘Errors of judgment’ … would not count against [the plaintiff], if they resulted ‘from the excitement and confusion of the moment’. The reason that was exacted of him was not the reason of the morrow. It was reason fitted and proportioned to the time and the event.

In Fleming, it is further stated:

A certain latitude is allowed when, in the agony of the moment, a person seeks to extricate him or herself from an emergency not created by their own antecedent negligence. This principle is inapplicable when the plaintiff’s negligence contributed to the emergency: Municipal Tramways Trust v Ashby [1951] SASR 61 (SC).
The degree of judgment and presence of mind expected of the plaintiff is what would have been reasonable in such a situation, and he or she will not be adjudged guilty of negligence merely because, as it turns out, he or she unwittingly took the wrong course…. Jones v Boyce (1816) 1 Stark 493; 171 ER 540 (KB). See also Ansell v Arnold [1963] SASR 355 (FC) (avoiding collision); Workers’ Compensation v Schmidt (1977) 80 DLR (3d) 696 (MBQB) (dousing flames with cleaning fluid). This principle is not, according to the better opinion, confined to situations of personal danger but applies equally where property is imperilled: Wilson v United Counties Bank [1920] AC 102 at 105 (HL); contra The Paludina [1927] AC 16 at 28 (HL).

This principle was also described in Caterson v Commissioner of Railways (1973) 128 CLR 99.
I believe that this principle has direct application to the present case. Here, the plaintiff was confronted with a situation of true emergency. A truck was blocking the northern carriageway of the Pacific Highway in a small village. The highway was at that point a single carriageway in each direction. A lengthy line of impatient drivers was queued behind the truck. Some of these drivers had commenced to overtake the truck, thus exposing both themselves, and unsuspecting motorists travelling in the opposite direction, to considerable risk. Serious injury or even death resulting from a car accident was reasonably within the contemplation of the plaintiff. In this regard, it should be recalled that, while the plaintiff was not at that moment undertaking road safety work, that was his training, and that was the initial reason why he was engaged at the Broadwater site. It is thus understandable that, in the emergency, he instinctively acted in the interests of road safety.
The fact that, in attempting to alleviate the situation in the manner in which he did, the plaintiff suffered a serious neck injury, does not suggest that his actions were in any way unreasonable, let alone negligent. To suggest otherwise would be to judge the situation in hindsight, which is self-evidently impermissible. Even if one could describe the plaintiff’s actions as inadvisable, which I would not, his actions are to be judged as resulting from the “excitement and confusion of the moment”, as Cardozo J put it in Wagner v International Railway Co 232 NY 176.
I find that the plaintiff was not guilty of any contributory negligence.

Apportionment as between Workforce, Downer and Cambra

Apportionment necessarily involves an imprecise assessment of the respective fault of the parties. This flows naturally from the fact that the amount of the contribution recoverable from a joint tortfeasor is such as is found by the Court “to be just and equitable having regard to the extent of that person’s responsibility for the damage”: section 5(1)(c) of the LRMPA.
The same principles set out above in respect of contributory negligence apply equally to the exercise of discretion in relation to apportionment. In Metropolitan Ambulance Service v State of Victoria [2002] VSC 222, Mandie J stated at [10]:

The [Podresbersek] principles apply to contribution as between defendants. It is appropriate to consider both the relevant culpability or blameworthiness of the tortfeasors and the causal potency of their respective acts and omissions: See too Davies v Swan Motor Co. (Swansea) Ltd [1949] 2 KB 291; Stapley v Gypsum Mines Ltd [1953] AC 663. The relative responsibility of the tortfeasors may be a compound of these two factors which will often tend to be interrelated. In the end it is the whole of the relevant conduct of each tortfeasor which must be compared.

I have come to the view that each of the defendants, that is to say Workforce, Downer and Cambra are equally responsible for the plaintiff’s loss. To put it in terms of the statute, I find that it is “just and equitable having regard to the extent of [each defendant’s] responsibility for the damage”, to hold each defendant equally liable.

I take this view for the following reasons, briefly stated:

As to Workforce, I do not consider that it was a bare labour hire company in relation to its dealings with the plaintiff. Even if it was such a company, and as such more closely aligned to the facts in TNT Australia Pty Ltd v Christie [2003] NSWCA 47, a significant apportionment of blame would still be appropriate to be attributed to it by its failure to provide a safe system of work, either directly, or vicariously through Downer. I take the view however that Workforce was not a mere labour hire firm, in the sense that that proposition was urged upon me. Workforce was aware that the plaintiff’s duties had shifted from the relatively light duties of his initial role, which could be broadly described as a species of traffic control, to a wide ranging role on the site. This wide ranging role, on any view of it, could encompass a wide range of duties, which duties were attended with a wide range of risks. Workforce, in that knowledge, permitted the plaintiff to continue, with its blessing, to do whatever he was asked to do by Downer, without any enquiry as to what the new duties would entail, or providing any training as to those duties. Workforce did not have to acquiesce in the plaintiff’s wider role, it could have informed Downer that it did not consent to the plaintiff being given such a potentially wide range of duties, and placed restrictions on the duties with which he could be entrusted. It did not.

As to Downer, it was the head contractor who had the hands-on responsibility for the safety of the site, and thus the safety of the plaintiff. It failed to provide him with a safe system of work. In the second phase of his employment, it took him away from the confines of light duties and exposed him to a potentially wide range of tasks, with a wide range of risks attaching to them. These tasks included the task of manually handling road barriers. Notwithstanding this, it offered the plaintiff neither instruction, nor training.

As to Cambra, it was directly responsible for the plaintiff’s injury as it was the party who directly breached its duty to the plaintiff by a casual act of negligence, when its employee Graham negligently stopped the process of moving the barriers, without warning or reference to the plaintiff or defendant, and without regard to where the line of barriers was located at the time at which he left the excavator.

Quantification of Damages

There are three matters going to issues of quantum upon which the parties sought determination before the quantum of the plaintiff’s loss can be finally ascertained. These are:

the plaintiff’s residual earning capacity;

vicissitudes; and

the basis for calculating past earnings.

The Plaintiff’s Residual Earning Capacity

Workforce and Cambra submitted that the plaintiff has a limited residual earning capacity. Downer did not wish to be heard on the issue. Workforce and Cambra point to the fact that, for a short period, the plaintiff worked for Westpac in the Sydney CBD doing certain clerical tasks. That is so, but the plaintiff no longer lives within commuting distance of Sydney.
The plaintiff gave evidence that the nature and severity of his pain and discomfort in his neck and arm changes over time. He said that the pain and discomfort fluctuates but is always there. He gave the following evidence:

Q:   Over time, did the nature and severity of that pain and discomfort change?
A:   Yes.
Q:   How did it change?
A:   It, it’d get worse and then it’d settle down, and then it’d get worse again, and yeah, it fluctuated, but it was always there.
Q:   Did any type of activities bring on the change?
A:   What I found myself is the longer I’m, I’m upright, standing up, sitting up, the pressure builds up in, in my neck and goes over my skull and it comes into my, into the back of my eyes, and I get the pressure in my eyes. That’s whilst I’m standing up and that, I’ve had that right from the get go.

The plaintiff went on to say that when this occurred, he felt nauseous (T34.25-27).
The plaintiff requires assistance with his garden, lawns and general housekeeping. It is uncomfortable for him to drive a car, though he can manage driving, with discomfort, a 30 minute trip (T36). He is restricted in lifting to approximately 2.5kg (T37).
The plaintiff says that he believes he cannot work (T26.25). I accept his assessment is an honest one.
The plaintiff’s opinion of his own incapacity for work is shared by the uncontradicted evidence of his treating orthopaedic surgeon, Dr Hopcroft (Ex P1, pp 5-6, 9, 15, 19, 24).
Also relevant, is the fact that the workers compensation insurer, notwithstanding regular return to work programme visits, has been unable to locate workable employment for the plaintiff. This is so, notwithstanding the plaintiff’s cooperation in that process (T36).
The assessment of residual capacity for work is not an exercise in stretching one’s imagination to come up with a possible job which an injured plaintiff might be potentially capable of performing. Moreover, it is for the defendant who contends that the plaintiff has a residual earning capacity, to adduce evidence as to what the plaintiff was capable of doing, and what jobs are genuinely open to such a person (Mead v Kerney [2012] NSWCA 215 at [16]). In Nominal Defendant v Livaja [2011] NSWCA 121, the Court said:

Because an individual has a physical and mental ability to undertake certain tasks, it does not necessarily follow that he has a significant residual earning capacity. Earning capacity must be measured by reference to the individual, when viewed with all his or her characteristics, in the labour market. When a person in middle age has spent all his or her life in a skilled or semi-skilled occupation which, as a result of injury, is no longer available, the identification of occupations which are theoretically available is only part of the task. There must also be a practical assessment of the likelihood of the individual obtaining employment in some such occupation.

In Kallouf v Middis [2008] NSWCA 61 at [50], McColl JA and Hall J stated as follows:

In Arthur Robinson (at 657) Barwick CJ observed that lost earning capacity 'ought to be the subject of evidence and not of mere suggestion on the part of the judge or advocate', a remark interpreted by Malcolm CJ (Murray and Wheeler JJ agreeing) in Morgan v Costello [2004] WASCA 260 (at [99]) as supporting the proposition that 'the defendant who contends the plaintiff has a residual earning capacity has the evidentiary burden of adducing evidence of what work the plaintiff is capable of performing and what jobs are open to a person with such capacity.’

Thus, it is clear that it is for the defendant/cross-defendant(s) to adduce evidence as to both the work which the plaintiff is capable of performing, and the jobs that are open to a person of such capacity. Workforce and Cambra have made no attempt to do so.
The parties contending for the proposition that the plaintiff retains a residual working capacity, have thus failed to discharge the onus upon them.
I find the plaintiff has no residual capacity for work.

Section 151L Workers Compensation Act 1987 (NSW)

Workforce also contended that the plaintiff had failed to mitigate his loss pursuant to section 151L of the Workers Compensation Act 1987 (NSW). As I have found that the plaintiff has no residual capacity to work, this argument must fail for the same reasons.

Basis for Calculating Past Damages

The parties provided to me an aide memoir which provided four scenarios which they contended provided possible bases for the calculation of income loss. The four scenarios are as follows:

Scenario 1
Based on rate provided by employer in workers compensation claim form and paid by insurer
Scenario 2
Based on the Plaintiff’s hourly rate referred to in statement dated 28 February 2008 being $27.00 per hour at 45.6 hours p/w as identified in the workers compensation claim form
Scenario 3
Based on the Plaintiff’s tax return for 2008 being the period of earnings 1 July 2007 – 29 November 2007 (date of accident)
Scenario 4
Based on an average of the Plaintiff’s earnings for the financial years 2007 – 2008

I can see no reason other than to use the plaintiff’s tax returns as the foundation of a calculation for wage loss, derived as they would be from group certificates. I believe these provide the basis which is most likely to be sound as to the plaintiff’s earnings.
As such, I can see no justification for adopting either of scenarios one and two above.
I believe that there is merit in using the data which is closest to the date of the Incident. At first blush, that may be thought to be clearly beneficial to the plaintiff, but in fact I do not believe that it is so. This course is not unduly beneficial to the plaintiff as this scenario involves the implicit assumption that the work which the plaintiff was getting at Broadwater in the second phase of his employment, represented his likely future earnings, and that he was unlikely to achieve a higher wage in the future. As such, it inherently involved no account being taken of the fact that the plaintiff had taken the time to acquire a road traffic safety supervisor’s ticket, with a view to advancing himself further in traffic control work, presumably on an increased wage.
I can see no justification for looking to average earnings over a two-year period (2007-2008) as scenario 4 involves.
I would therefore adopt scenario 3 as the basis of income loss calculations.

Vicissitudes

The defendant/cross-defendants seek a discount for vicissitudes well above the 15% which is generally accepted as a benchmark in this state. They suggested a figure of up to 40%. They seek a discount for vicissitudes with respect to both past and future loss of earnings.
The reasons advanced as supporting such a discount for vicissitudes, can be summarised as follows:

the plaintiff’s history of lumbar spine injury;

the fact that, as at the date of the Incident, the plaintiff had only worked some three and a half years in the preceding 20 years;

that the plaintiff was basically unskilled;

that the plaintiff could only perform light duties;

that the plaintiff’s work with Workforce was casual; and

that the plaintiff adduced no evidence of promises of further employment by Workforce or Downer, following the end of the Broadwater job.

Mr Romaniuk SC , on the other hand, submits that:

notwithstanding the lumbar spine injury, the plaintiff was capable of some manual work. He points to the fact that he did so in the days leading up to the Incident, and that his back held up during the activity which caused his neck injury;

while there was a long period of unemployment following the lumbar spine injury, when the final surgery was successful, the plaintiff went back to work and performed his function well;

I was entitled to have regard to how the plaintiff presented in the witness box, describing him being as a good-natured, intelligent and affable man who was likely to be well regarded by a potential employer. Because of these qualities, it was submitted that the plaintiff was likely to obtain, and retain, employment;

there was evidence that the plaintiff believed that he would have work available to him on the Ballina Pacific Highway bypass, and he had undertaken a course to acquire a supervisor’s ticket to further his prospects of obtaining work on that project; and

the evidence in its totality demonstrated that by the time of the Incident, the plaintiff was improving the quality of his working life.

It is undoubtedly true that the plaintiff had suffered a serious injury to his lumbar spine, and that he was careful to avoid heavy lifting at the Broadwater site at all times. Downer suggested that Dr Hopcroft was of the view that the lumbar spine was giving the plaintiff considerable ongoing problems with the back pain and sciatica, referring to his report of 18 June 2008 (Ex P1, p3). I do not believe that this reflects the true situation, as in the section of Dr Hopcroft’s report on which Downer relies, Dr Hopcroft was referring to the plaintiff’s situation prior to his final, successful surgery. The evidence does not disclose ongoing debilitating problems with the plaintiff’s lumbar spine following the final, successful surgery.
Nonetheless, it was the fact that the plaintiff did suffer from a serious back injury and that, while the condition had improved significantly following the final surgery, it was a factor which required him to be careful with any work activities which he might seek to undertake. It thus had the tendency to limit the employment opportunities available to him.
It is also true, as the defendant/cross- defendants submitted, that the plaintiff was relatively unskilled, and was limited to light duties. They were also correct in saying that he was a casual employee. This of course, carried with it by necessary implication, the proposition that any employment which he might secure was necessarily of a more precarious nature than that of a full-time employee. That said, I do not believe that it must be assumed that the plaintiff would remain a casual employee for the balance of his working life.
These factors are on any view of it, negative factors to be taken into account in the vicissitudes calculus.
On the other hand, I also accept the submission made on the plaintiff’s behalf that his work experience had improved significantly in the period leading up to the Incident, and that his decision to obtain the supervisor’s ticket with a view to furthering the possibility of work as a supervisor on the Ballina bypass, demonstrated his preparedness to work. The plaintiff gave evidence that he believed that work of the type that he was undertaking at Broadwater was likely to be available on the Ballina bypass project (T38.12-38.19).
I think it is also fair to note that traffic control type work is not only to be found on major civil engineering works such as those which were going on at Broadwater, and which were to be undertaken on the Pacific Highway at Ballina. The presence of traffic controllers is commonplace in modern life, including on the state’s highways, its backroads, and its urban thoroughfares.
I should also say that, as I have already indicated on several occasions in the course of these reasons, I was impressed by the plaintiff’s intelligence, honesty and affability. I believe that these positive attributes would go a long way to countervailing the negative vicissitudes issues to which the defendant/cross- defendants refer. I believe that his personality would, in all likelihood, lead to him obtaining permanent work, which he would be likely to retain.
The process of arriving at an appropriate discount of damages for vicissitudes is definitionally an impressional and conjectural one. It is inherently an exercise in balancing competing factors.
As the High Court in Malec v JC Hutton (1990) 169 CLR 638 said:

By contrast, earning capacity can be assessed only upon the hypothesis that the plaintiff had not been tortiously injured: what would he have been able to earn if he had not been tortiously injured? To answer that question, the court must speculate to some extent. As the hypothesis is false – for the plaintiff has been injured – the ascertainment of earning capacity involves an evaluation of possibilities, not establishing a fact as a matter of history. Hypothetical situations of the past are analogous to future possibilities: in one case the court must form an estimate of the likelihood that the hypothetical situation would have occurred, in the other the court must form an estimate of the likelihood that the possibility will occur. Both are to be distinguished from events which are alleged to have actually occurred in the past…

In Avopiling v Bosevski [2018] NSWCA 146 at [129], Basten JA stated:

Further, in Malec v JC Hutton, which concerned the allowance of damages for future economic loss including a claim for future attendant care, the High Court rejected the traditional common law approach to the assessment of damages for future hypothetical events, which was to determine whether the event would or would not have occurred on the balance of probabilities. The Court held that this approach was inapplicable to hypothetical future events because they are not "commonly susceptible of scientific demonstration or proof" and can only be evaluated in terms of chance (per Brennan and Dawson JJ at 639 and Deane, Gaudron and McHugh JJ at 642-3). The High Court explained that the correct approach was to calculate the "degree of probability" (per Deane, Gaudron and McHugh JJ at 643) or "possibility" (per Brennan and Dawson JJ at 640) of a future event occurring and then to adjust the award of damages according to that calculation, unless the probability is so low (less than one per cent) as to be speculative or so high (more than 99 per cent) as to be practically definite (at 643). That approach is now enshrined in the calculation of all future economic loss to which the Civil Liability Act applies: s 13(2).

Taking into account both the positive and negative vicissitudes to which the parties have referred, and to which I have made reference, it seems to me that the position of the plaintiff’s residual lumbar spine difficulties together with his casual employment status are suggestive of the fact that a discount for vicissitudes of greater than 15% is called for. The question however, is what that discount should be, and whether it must necessarily be applied equally to both past and future wage loss.
In regards to the issue as to whether the discount can be applied to past economic losses, as distinct from future economic loss, the defendant/cross- defendants referred me to the judgment of the High Court in Malec v JC Hutton (1990) 169 CLR 638 at 639, per Brennan and Dawson JJ. They also referred me to the decision of the plurality of Dean, Gaudron and McHugh JJ in the same matter. They submit that Malec v JC Hutton is authority for the proposition that the vicissitudes type discount is not restricted to future loss. I accept that this is the case. The issue is whether such a discount should be applied to part wage loss in this case.
I can see no reason to apply a discount for vicissitudes in relation to past wage loss. I take this view on the basis that the negative vicissitudes factors were less likely to impair on the plaintiff in the period from the date of the Incident, to the present. I have taken into account the submission of Downer and Cambra in this regard. They point to the fact that the plaintiff, prior to employment by Workforce, had been out of work for 20 years. They also rely on the lengthy period between the neck injury and the trial.
I do not accept these submissions. The plaintiff’s 20 year absence from the workforce was a product of the need for multiple surgical procedures following the back injury. As soon as he was reasonably able to do so, he returned to work. I also do not believe that the effluxion of time since the injury, the subject of these proceedings, justifies a discount for past wage loss.
I am of the view however, that the negative vicissitudes factors upon which the defendant/cross-defendants rely, may become more prominent in the future. It seems to me that the plaintiff was unlikely to have continued to earn at an 11 hour per day rate (as he had been at Broadwater prior to the Incident), every day until he retired at 67. There may also have been periods between jobs where he was not provided with either casual or permanent work.
It seems to me that an appropriate discount for future wage loss is 20%.
There should be:

Judgment and Verdict for the plaintiff against the defendant.

Judgment and Verdict for the first cross-claimant against the first cross-defendant.

Judgment and Verdict for the second cross-claimant against the second cross-defendant.

An Order that the defendant pay the plaintiff’s costs.

An Order that the first cross-defendant pay the first cross-claimant’s costs.

An Order that the second cross-defendant pay the second cross-claimant’s costs.

I direct the parties to bring in Short Minutes of Order which give effect to these reasons.

**********

Decision last updated: 08 April 2019

Medium Neutral Citation:	Palmer v Allianz Australia Workers' Compensation (NSW) Limited [2019] NSWDC 107
Hearing dates:	11 – 13 March 2019
Date of orders:	04 April 2019
Decision date:	04 April 2019
Jurisdiction:	Civil
Before:	Weber SC DCJ
Decision:	Parties directed to bring in Short Minutes of Order to give effect to the Court’s reasons
Catchwords:	WORKERS’ COMPENSATION – liability to pay damages – direct and vicarious liability of employer – labour hire employer - whether employer aware of change in employee’s work responsibilities – whether employer acquiesced to change in employee’s work responsibilities TORTS – Negligence – Apportionment of responsibility and damages – liability of third party contractors – contribution and indemnity between tortfeasors DAMAGES – General principles – whether contributory negligence – whether failure to mitigate loss – whether employee has residual earning capacity – quantifying vicissitudes – basis for calculating past earnings
Legislation Cited:	Civil Liability Act 2002 (NSW) Corporations Act 2001 (Cth) Law Reform (Miscellaneous Provisions) Act 1946 (NSW) Workers Compensation Act 1987 (NSW) Workplace Injury Management and Workers Compensation Act 1998 (NSW)
Cases Cited:	Avopiling v Bosevski [2018] NSWCA 146 Benic v State of New South Wales [2010] NSWSC 1039 Caterson v Commissioner of Railways (1973) 128 CLR 99 Coles Supermarkets Australia Pty Ltd v Bridge [2018] NSWCA 183 CSR Timber Products Pty Ltd v Weathertex Pty Ltd (2013) 83 NSWLR 433 Erickson v Bagley [2015] VSCA 220 Globe Church Incorporated v Allianz Australia Insurance Ltd [2019] NSWCA 27 Hunt v Knight Frank (NSW) Pty Ltd & 2 Ors [2005] NSWCA 139 Jones v Dunkel (1959) 101 CLR 298 Kallouf v Middis [2008] NSWCA 61 Malec v JC Hutton (1990) 169 CLR 638 Matthew Xavier Carton v Rainbow Plumbing & Drainage Pty Limited [2013] ACTSC 267 McNeilly v Imbree (2007) 47 MVR 536 Mead v Kerney [2012] NSWCA 215 Metropolitan Ambulance Service v State of Victoria [2002] VSC 222 Nominal Defendant v Livaja [2011] NSWCA 121 Penrith City Council v Government Insurance Office of New South Wales (1991) 24 NSWLR 564 Perisher Blue Pty Ltd v Nair-Smith [2015] NSWCA 90 Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529 Port Macquarie Hastings Council v Mooney [2014] NSWCA 156 Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98 Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330 South Sydney Junior Rugby League Club Ltd v Gazis [2016] NSWCA 8 South West Helicopters Pty Ltd v Stephenson [2017] NSWCA 312; (2017) 327 FLR 110 Strong v Woolworths (2012) 246 CLR 182 TNT Australia Pty Ltd v Christie [2003] NSWCA 47 Uniting Church in Australia Property Trust (NSW) v Miller (2015) 91 NSWLR 752 Wagner v International Railway Co 232 NY 176
Texts Cited:	Fleming’s The Law of Torts 10th edition, by Sappideen and Vines
Category:	Principal judgment
Parties:	Gary Palmer (Plaintiff) Allianz Australia Workers' Compensation (NSW) Limited (Defendant; Cross Claimant 1) Downer EDI Works Pty Limited (Cross Defendant 1; Cross Claimant 2) Cambra Holdings Pty. Ltd (Cross Defendant 2)
Representation:	Counsel: Plaintiff: Mr E Romaniuk SC; Mr P Menary Defendant / Cross Claimant 1: Mr H Halligan Cross Defendant 1 / Cross Claimant 2: Mr H Chiu Cross Defendant 2: Mr D Kelly Solicitors: Plaintiff: LHD Lawyers Defendant / Cross Claimant 1: HWL Ebsworth Cross Defendant 1 / Cross Claimant 2: Clyde & Co Cross Defendant 2: Moray & Agnew
File Number(s):	2016/00296823 – 0012016/00296823 – 0022016/00296823 – 003
Publication restriction:	None