Pamela Spencer v QLSL Pty Ltd (trading as Supply-Linq Pty Ltd)

[2017] NSWDC 26

District Court

New South Wales

Medium Neutral Citation:

Pamela Spencer v QLSL Pty Ltd (trading as Supply-Linq Pty Ltd) & Ors [2017] NSWDC 26

Hearing dates:

5 – 8 September 2016

Date of orders:

14 February 2017

Decision date:

14 February 2017

Jurisdiction:

Civil

Before:

Hatzistergos DCJ

Decision:

1. Verdict and judgment for the Plaintiff against the Defendants in the sum of $151,703 (rounded down);

 

2. Verdict and judgment for the First Defendant against the Third Defendant in the sum of $60,681;

 

3. Verdict and judgment for the Third Defendant against the First Defendant in the sum of $91,022; and

 4. Subject to any application to my Associate within 7 days to relist the matter for any further or other order as to costs, the Defendants are to pay the Plaintiff’s costs and I make no order as to the costs on the Cross-Claims.

Catchwords:

TORTS – NEGLIGENCE – workplace injury – liability of host employer – liability of property manager; PROPORTIONATE LIABILTY – contribution between joint and several tortfeasors – recovery against both employer and stranger; CONTRIBUTORY NEGLIGENCE – factual investigation – no contributory negligence; DAMAGES – out of pocket expenses – economic loss – non-economic loss – domestic assistance

Legislation Cited:

Civil Liability Act 2002 (NSW) ss 5B, 5C, 5D, 5F , 5R, 5S, 13, and 15
Law Reform (Miscellaneous Provisions) Act 1946 (NSW) s 5
Motor Accidents Compensation Act 1999 (NSW) s 126
Uniform Civil Procedure Rules 2005 (NSW) r 9.11 (2)
Workers Compensation Act 1987 (NSW) ss 36 and 151Z

Cases Cited:

ACI Metal Stamping and Spinning Pty Ltd v Boczulik (1964) 110 CLR 372
Atkinson v Gameco (NSW) Pty Ltd [2005] NSWCA 338
Bevillesta Pty Ltd v Liberty International Insurance Co [2009] NSWCA 16
Bostik Australia Pty Ltd v Liddiard & Anor [2009] NSWCA 167
Bourke v Victorian Work Cover Authority [1999] 1 VR 189
Chapman v Hearse (1961) 106 CLR 112
Dib Group Pty Ltd trading as Hill & Co v Cole [2009] NSWCA 210
Fox v Wood (1981) 148 CLR 438; [1981] HCA 41
Ghunaim v Bart [2004] NSWCA 28
Izzard v Dubier Marine Products (NSW) Pty Ltd [2012] NSWCA 132
Laresu Pty Ltd v Clark [2010] NSWCA 180
Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20
Nominal Defendant v Livaja [2011] NSWCA 121
Podrebersek v Australia Iron and Steel Pty Ltd (1985) 59 ALJR 492; [1985] HCA 34
Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99
Richard Ronald McConachie trading as Willancorah Pastoral Company v Graham John Pack [2004] NSWCA 148
Sampco Pty Ltd v Wurth [2015] NSWCA 117
Stojan (No 9) Pty Ltd v Kenway [2009] NSWCA 364
TNT Australia Pty Ltd v Christie & Ors (2003) 64 NSWLR 1; [2003] NSWCA 47
Uniting Church in Australia Property Trust (NSW) v Miller; Miller v Lithgow City Council [2015] NSWCA 320
Verryt v Schoupp [2015] NSWCA 128
Wynn Tresidder Management v Barkho [2009] NSWCA 149

Category:

Principal judgment

Parties:

Ms Pamela Spencer (Plaintiff)
QLSL Pty Ltd trading as Supply-Linq Pty Ltd (First Defendant)
CBRE Pty Limited trading as CB Richard Ellis (Second Defendant)
Jones Lang LaSalle (NSW) Pty Limited (Third Defendant)

Representation:

Counsel:
Ms E Welsh with Ms L Goodchild (Plaintiff)
Ms O Dinkha (First Defendant)
Mr A Gruzman (Third Defendant)

  Solicitors:
Brydens Compensation Lawyers (Plaintiff)
Curwoods Lawyers (First Defendant)
Wotton + Kearney (Second Defendant)
Vardanega Roberts Solicitors (Third Defendant)

File Number(s):

2014/239263

Publication restriction:

Nil

Judgment

INTRODUCTION

1. The Plaintiff, Ms Pamela Spencer, brought proceedings against QLSL Pty Ltd trading as Supply-Linq Pty Ltd [1] as First Defendant; CBRE Pty Ltd trading as CB Richard Ellis [2] as Second Defendant; and Jones Lang LaSalle (NSW) Pty Ltd [3] as Third Defendant in respect of a claim for personal injury damages arising from an accident on 18 August 2011.

   1. Hereinafter referred to as “Supply-Linq”

   2. Hereinafter referred to as “CBRE”

   3. Hereinafter referred to as “JLL”

2. CBRE was the onsite agent responsible for the management of the premises where the accident is said to have occurred between 2009 and 2010. Proceedings against it were resolved by Consent Orders at the commencement of the hearing. The Plaintiff thereafter maintained proceedings against Supply-Linq and JLL.

3. The Plaintiff was granted leave to rely on a Second Further Amended Statement of Claim filed 6 September 2016. [4]

   4. T 165.35 – .36

4. Supply-Linq relied on its Amended Defence filed 30 August 2016 and a Cross-Claim brought against JLL dated 9 February 2015. The Defence to this Cross-Claim was filed on 22 August 2016. JLL relied on a Defence filed on 13 August 2015 and a Cross-Claim brought against Supply-Linq dated 14 January 2016. No Defence to this later cross-claim was filed as it was effectively confined to seeking a contribution under s 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW). [5]

   5. Uniform Civil Procedure Rules 2005 (NSW) r 9.11 (2)

5. At the time of the accident, the Plaintiff was employed by YL Business Solutions Pty Ltd, an employment agency that placed her with Supply-Linq as a picker, packer and processor. As part of her duties she was required to attend a premises located at 19 – 23 Seville Street, Fairfield. [6]

   6. Hereinafter referred to as “the premises”. The premises has been variously described in the Plaintiff’s opening as 44 – 48 Mandarin Street, Villawood: see T 5.19 and Plaintiff’s Second Further Amended Statement of Claim at [3]

6. The Second Further Amended Statement of Claim alleged that on or about 18 August 2011, the Plaintiff stepped into a drain due to the fact that a grate over the drain was not properly positioned leaving a gap between a section of the grates. [7] The Second Further Amended Statement of Claim further alleged that the duty of Supply-Linq corresponded to the duty of care of an employer by virtue of the fact that the Plaintiff was required to work at Supply-Linq’s premises under Supply-Linq’s control and direction and in the company of the servants and agents of Supply-Linq. [8]

   7. Plaintiff’s Second Further Amended Statement of Claim at [10]

   8. Plaintiff’s Second Further Amended Statement of Claim at [13]

7. It is not in issue that JLL was the managing agent of the premises pursuant to a Managing Agency Agreement entered into on 1 March 2011 between itself and the owner. [9] Nor was it in issue that the owner was Perpetual Trustee Company Ltd.

   9. Exhibit D 3.3 Managing Agency Agreement between Jones Lang LaSalle and Perpetual Trustee Company, and Third Defendant’s Defence at [3]

8. The Second Further Amended Statement of Claim asserted that pursuant to the said agreement, JLL was required to undertake regular inspections of the property whilst it was the on-site managing agent of the premises between 2010 and 2011. [10] Supply-Linq admitted this in its Defence. [11] Neither Defendant admitted that they were vested with care, control and management of the premises. [12] Both Defendants denied negligence and in the alternative alleged that any injuries were the product of the Plaintiff’s contributory negligence. [13] Both Defendants also alleged that any damages payable to the Plaintiff were liable to be reduced on account of the negligence of the Plaintiff’s employer, YL Business Solutions Pty Ltd, pursuant to the provisions of s 151Z of the Workers Compensation Act 1987 (NSW). [14] Both Defendants pleaded reliance on obvious risk under s 5F of the Civil Liability Act 2002 (NSW) [15] although neither ultimately advanced this during final submissions. [16]

WITNESSES

10. Plaintiff’s Second Further Amended Statement of Claim at [5]-[6]

11. First Defendant’s Defence at [4]

12. Plaintiff’s Second Further Amended Statement of Claim at [7]; First Defendant’s Defence at [5]; and Third Defendant’s Defence at [4]

13. First Defendant’s Defence at [6] and [8]; and Third Defendant’s Defence at [7] – [8]

14. Hereinafter referred to as the 1987 Act; First Defendant’s Defence at [11] and Third Defendant’s Defence at [10]

15. Hereinafter referred to as the 2002 Act

16. First Defendant’s Defence at [10](d) and Third Defendant’s Defence at [12](i)

The Plaintiff

9. The Plaintiff gave evidence that she arrived in Australia from the United States of America in 2006 but did not work until she registered with an employment agency called YL Business Solutions Pty Ltd in August 2008. YL Business Solutions Pty Ltd placed her with Supply-Linq. She stated that she worked on the premises. [17] Her work was described as a picker, packer and processor and her evidence was that her job involved “… paperwork that told you locations to go to pick a customer's order, push a trolley, pick the quantity, take it back, put the stuff on the table, check the orders, make sure they're correct, pack them, then process them.” [18] Her hours were specified to be between 6am and 2pm. [19]

   17. T 19.32

   18. T 19.49 – 20.1

   19. T 20.23

10. The Plaintiff stated that when she arrived at the premises it was usually always closed and she would wait until someone with a key would come and open the gate. She would then drive in and park her car. [20] According to the Plaintiff the person opening the gate would always be “Supply-Linq people.” [21] She also stated that at this time in the winter, illumination was by street lighting as it was still dark. [22]

    20. T 21.20 – .37

    21. T 21.48

    22. T 22.6

11. The Plaintiff stated that whoever unlocked the gate, would unlock the door of the warehouse and they would go in. [23] After collecting and picking up orders, she would then cut the cardboard boxes and put them in a cage. [24] On Thursdays at around 6am, a truck would arrive to empty the cardboard cages. [25] The Plaintiff accepted that by the time the truck arrived, the cages were brought out to the forecourt by the forklift driver. The place she would take them was where the truck would be. [26]

    23. T 22.13 – .14

    24. T 22.21

    25. T 23.15 – .29

    26. T 23.49

12. Prior to the accident, the Plaintiff gave evidence that she noticed a drain which ran in front of the warehouses on the forecourt. [27] She accepted that she had to walk over it all the time because it ran across the main big warehouse doors [28] and the smaller office style doors. [29] The Plaintiff’s evidence was that before the day of her injuries, she had not seen a gap in the metal grate grilles over the drain [30] nor had she been called to an occupational health and safety meeting where the drain covers or grates over the drains had been discussed. [31]

    27. T 24.3

    28. T 24.7

    29. T 24.11

    30. T 24.21

    31. T 24.25

13. On the day of the accident, she recalled arriving at 6am. After the gate was opened, she had coffee inside and then stood outside in the forecourt area waiting for the cardboard collection truck to arrive. She accepted that her co-worker brought the cages outside the warehouse door [32] and she thought the truck had arrived at around 6:10am. [33]

    32. T 29.43

    33. T 29.46

14. The Plaintiff described her task as being to throw the cardboard from the caged bin [34] to a yellow bin, [35] which would then be emptied into the truck. [36] She stated that after emptying the caged bin, she proceeded to walk back towards the warehouse, to pick up the cage door to put it back on the cage. She stated that the door was located just on the outside of the large warehouse door, [37] between the warehouse door and a smaller door. [38] At the time, she described it was dark. [39] She stated that as she went to pick up the door, her left foot wobbled and then she “fell straight down.” [40] She described it as:-

“It just fell, just went down this hole, this crate, and stopped at my knee.” [41]

She said that her knee stopped her going through [42] and she felt pressure on the inside and outside of her knee. [43]

34. Depicted in Exhibit F

35. Depicted in Exhibit A

36. T 30.20

37. T 31.14

38. T 31.18

39. T 31.22

40. T 31.28

41. T 31.31

42. T 31.48

43. T 32.5

15. Her co-worker and floor supervisor, Mr Andrew Boyle [44] came to her assistance. The Plaintiff thereafter continued to work and reported to “Marissa”. [45] The Plaintiff stated that she filled out an incident and hazard report [46] that describes the incident in the following terms:-

“Walking back in dock 2 after dumping cardboard foot (left) fell threw [sic] crate stuck to knee. Left arm landed on crate. Left leg bruised & left arm. 6:15am.” [47]

The Plaintiff stated that when she said “crate” she meant “grate.” [48]

44. T 24.33 – .38

45. T 34.4 – .21

46. Exhibit B

47. Exhibit B

48. T 34.49

16. The Plaintiff took a photograph of the area where the accident occurred. [49] The Plaintiff’s evidence was that around 8:30 – 9:00am, she met Enzo Cordi when he first arrived. [50] She stated that when she told him “Enzo I just fell in the crate” and he replied: “Well, we’ve been trying to get that fixed for months.” [51] At around 11:30am, the Plaintiff noticed that her leg was swollen and showed Enzo, who told her to go to the doctor. [52] The Plaintiff stated that over the course of the rest of the day she saw supervisor, Enzo put a bit of plywood and a cone over the top of where the accident happened. [53] A photo of the area taken the following day with the plywood and cone was also taken. [54]

    49. Exhibit C

    50. T 36.47 – .48

    51. T 37.4 – .5

    52. T 36.25

    53. T 35.15 – .18

    54. Exhibit D

17. The Plaintiff stated that approximately eight months after the accident, some metal railings were placed around the area “to block it off to where no-one could walk on [the area] again.” [55] This was depicted in a further photograph. [56]

    55. T 38.34 – .35

    56. Exhibit E and T 40.21 – .27

18. In cross-examination by Counsel for Suppy-Linq, the Plaintiff conceded that whilst working at the subject premises, somebody from her employer would attend from time to time, but it would be a different person every week. [57] She stated that the person would come up and say “hi” and ask how it was going, to which she would respond “Yeah, good.” [58] The Plaintiff stated that she would not know if they carried out any inspections [59] nor did she know how long they had been at the premises. [60] She stated that her interactions would be “maybe two minutes.” [61]

    57. T 99.6

    58. T 99.11 – .26

    59. T 99.30

    60. T 99.34

    61. T 99.37

19. The Plaintiff also stated that in the event that she encountered a hazard in the workplace, she was told to “tell someone else in charge.” [62] She did not recall being told to ring her employer for instructions. [63]

    62. T 100.7

    63. T 100.10

20. The Plaintiff conceded that when she went to work at Supply-Linq’s premises, she thought she underwent an induction process and was told what to do. [64] She conceded that she was instructed as to safety matters and to look out for tripping and falling hazards. [65] The Plaintiff’s evidence was that prior to 18 August 2011, she was not aware of a gap between the metal grates outside dock 2. [66]

    64. T 100.14 – .20

    65. T 100.29 – .30

    66. T 100.36 – .38

21. The Plaintiff marked on Exhibit D1.3, the location where the cage door was against the warehouse’s outer wall. She also marked the location of the cage where she was unloading the cardboard. She conceded that the roller door at the main entrance was open at the time, but denied that she could see what she was doing. [67] The Plaintiff stated that there would be lights from the truck [68] that illuminated the area where the cage was located. [69] The Plaintiff stated that once the smaller cage had been emptied into the larger bin, the truck would back up. [70] The Plaintiff rejected the proposition that there was sufficient light from the inside of the warehouse to see around. [71] She stated that after the truck left she would walk over, pick the cage door up and put it back on the cage. [72] The Plaintiff stated that she could see the cage door because of the reflection from the warehouse, and because she knew it was there every week. [73]

    67. T 105.3 – .4

    68. T 105.10

    69. T 105.14

    70. T 105.25

    71. T 105.42

    72. T 105.35

    73. T 105.39

22. The Plaintiff stated that she was looking to see where she was placing her feet before she walked over. However, she could not see where her feet were because there was not much light. [74] She stated that she always looked down when she walked, however she did not see a hole. [75] It was then put to her that she could not see the hole because she was not looking, she responded: “I was looking.” [76] The Plaintiff stated that she stepped on the grate and fell into the gap, [77] she conceded that there was no movement in the grates. [78]

    74. T 106.26

    75. T 106.44

    76. T 107.1

    77. T 107.31

    78. T 107.34

23. In cross-examination by Counsel for JLL, it was put to the Plaintiff that twilight started at 6:07am and the sun rose, on that day, at 6:33am. The Plaintiff appeared to accept this but stated: “it was still dark” but could not say until what time it was dark. [79]

    79. T 130.23 – .28

24. The Plaintiff stated that when unloading the bins, light came from the truck. She conceded that these would have been the headlights although the lights were not pointing down towards the warehouse but down the driveway. [80]

    80. T 130.48 – 131.5

25. The Plaintiff stated that the cage door folded in half and was only complete when it was inside the cage and you locked the door. She stated that the door was elbow height when standing up. [81]

    81. T 133.26

26. The Plaintiff’s job was to take the door back to the cage and put it on the cage so it could be taken back inside the warehouse. She stated that the work was done in a production line format. She did not measure the size of the opening in the grate area and the size of the steel-capped boots she was wearing that she conceded she normally wore. [82]

    82. T 135.41 – .47

Damien Beck

27. In Supply-Linq’s case, Mr Damien Beck was called. He was the warehouse manager for Supply-Linq as at August 2011. His role involved day-to-day running of the warehouse, including looking after clients and staff. [83] He was also a point of contact between the building managers and owners on behalf of Supply-Linq. That included contact between Supply-Linq and CBRE and JLL. [84] He stated that CBRE, for a period of time, were property managers [85] and he assumed that that involved looking after the building structure outside and any internal issues. [86] He acknowledged that the external areas referred to the common areas. [87] He stated that he thought JLL took over management of the premises towards the end of 2010. [88] Mr Beck’s responsibilities as warehouse manager related to half of the building, which included dock 2. As the point of contact between Supply-Linq and JLL, he stated that the latter would “would come in and do site inspections maybe three or four times a year.” [89] He stated that he would also call them if they had an issue. [90] He stated that he would contact JLL to discuss “… leaking roofs, lighting issues, concrete - there's holes in the concrete, which needed to be replaced - that sort of general stuff.” [91] He was asked in evidence-in-chief about the grates outside dock 2. The exchange was as follows:-

    83. T 167.35 – .39

    84. T 167.50

    85. T 168.2

    86. T 168.17 – .18

    87. T 168.24

    88. T 168.34

    89. T 169.12 – .13

    90. T 169.29 – .31

    91. T 170.36 – .37

“Q. Can you tell me what you meant about issues with the grates? I think that was the word you used.

A. They were unsafe.

Q. In what way were they unsafe?

A. They were at all different levels. They were a tripping hazard, basically.

Q. And you raised those concerns with JLL, did you?

A. I can't recall if I did or not.

Q. When JLL took over management of the premises, you'd seen them walking around the premises, hadn't you?

A. Yep.

Q. You accept that the issues with the grates were something that they would have observed.

A. I would assume they would have.

Q. The problems with the grates were readily visible, weren't they?

A. Yes.

OBJECTION (WELSH). QUESTION REJECTED

Q. The changes in level of the grates, that was something that you observed?

A. Yes.

Q. Had any requests been made to JLL --

OBJECTION (GRUZMAN). LEADING

Q. The problems with the grates that you've just described - what, if any, steps were taken by Supply-LINQ in relation to the grates?

A. Since 2009, it has been brought up to our building managers as a potential safety issue, and we continued talking to each and every building manager who came into the place that it was an issue.

Q. When you say "building manager", do you mean JLL?

A. I mean CBRE and - I can't recall specifically telling JLL, but I would have because we'd been through so many different people.” [92]

92. T 171.1 – .40

28. Mr Beck stated that in 2012 he became the site manager for the premises and nothing had been done about the drainage grate. He said that he had more control over the budget than previously and put temporary barriers across the exits and entrances, and mesh across the gates to funnel people out and around the grates. [93] He stated that the rails that he put up were yellow ones found in Exhibit E and the silver rails were put up in 2013 – 14 by the building manager subsequent to JLL. He stated that he put up the yellow railings between July and December 2012. [94] He said that he expended about $2000 – 2500 “to get the railings done and the mesh in” for the “totality of the building.” [95] However, the particular section, including labour, cost “maybe five, six hundred dollars.” [96] He said that he always felt that the grates had been a safety issue and that having more access to the budget he could do it without asking for permission from the directors. [97] He stated that he did not leave this to the property manager because “we’ve been asking for this to be done since 2009 and nothing had been done, so I thought I had better do something.” [98] He acknowledged that he “basically” got “fed up.” [99]

    93. T 162.37 – .41

    94. T 173.38 – .39

    95. T 173.12 – .17

    96. T 163.27

    97. T 173.42 – .47

    98. T 173.50 – .51

    99. T 174.3 – .4

29. In cross-examination by Counsel for JLL, Mr Beck acknowledged that there was something raised between the occupational health and safety committee of Supply-Linq to the property manager at CBRE concerning the safety of the grates in 2009 and 2010. [100] He accepted that JLL took over as building managers in about March 2011, but stated that he “thought they started earlier than that …” [101] Mr Beck emphasised that he had no contact with the owners. [102]

    100. T 174.15 – .28

    101. T 174.30 – .35

    102. T 175.3

30. Mr Beck reiterated that if there was a problem with the roof leaking or the doors not working, or something breaking, he would first contact the building managers, and then would pass the information on to the directors of Supply-Linq. [103] He stated that if he contacted the building managers in relation to anything outside inspection times, it would be by telephone at the beginning and then the process had changed from time to time, and he would email them. [104] He acknowledged that there were emails he was copied into, with requests to CBRE in relation to the fixing the concrete and the grates. [105] This was in 2009 or thereabouts. [106] However, he acknowledged that CBRE did not do anything about fixing the grates. [107]

    103. T 177.30 – .38

    104. T 177.46 – .47

    105. T 178.1

    106. T 178.4

    107. T 178.7

31. Mr Beck was shown a document from QVS Property Maintenance Pty Ltd, dated 14 October 2009 [108] which he acknowledged being a quote for yellow rails to be put up to prevent trip hazards. He stated that this came from CBRE. [109] The quotation was for an amount of $4895.

    108. Exhibit D 3.1

    109. T 178.22 – .34

32. Mr Beck stated that he forwarded the quote onto Supply-Linq’s occupational health and safety committee and it would have gone to the directors. [110] He acknowledged that as far as he was aware, it was the directors’ obligation to decide whether or not the plan was instituted and the money expended. [111]

    110. T 178.37 – .38

    111. T 178.42

33. Mr Beck’s attention was also drawn to an email dated 17 September 2009 that was sent by the Plaintiff’s supervisor Mr Enzo Cordi to Ms Laura Sandersan from CBRE. [112] The email was also copied to the various persons in Supply-Linq including himself and a director, being Mr Brian Dixon. [113] He did not recall any response from the directors or instructions to carry out the works about installing railings. [114] The email refers to Ms Sandersan having stated:-

“Regarding the grates around the pedestrian area, I will speak with Greg Davidson the Building Supervisor to arrange a quote to repair.” [115]

Mr Cordi responds saying:-

“These were also measured and mapped over 6 weeks ago, you may already have a quote.“ [116]

Mr Beck stated that stated that so far as he was aware Mr Davidson was not a person in Supply-Linq. [117]

112. Exhibit D 3.2

113. Exhibit D 3.2

114. T 180.2 – .19

115. Exhibit D 3.2

116. Exhibit D 3.2

117. T 179.46 – .47

34. Mr Beck stated that he was not aware of any reason why Supply-Linq did not erect the yellow railings during 2009 – 2010. [118] He acknowledged that the grates were in a “concrete channel covering a drainage pit” [119] at the “back of the building.” [120] He acknowledged that vehicles drove over these and to his observation, the damage to the grate arose because they had become depressed. [121] He assumed that this was because of point loading from the trucks or forklifts driving across it [122] which bent them down in the middle and thereby raised the longitudinal edges above the level of the concrete. [123] He acknowledged this as the trip hazard. [124] He also stated that the grate across the roller door was thicker and sturdier, and there was a step down to the drainage grate. [125] He acknowledged that in appearance, there was a long continuous drainage grate along the back of the building made up of sections of drainage grates. [126] He acknowledged that the grates adjacent to the openings to the warehouse docks were of a thicker construction than the ones adjacent to the walls near the entrance doors; and that there was a difference in height. [127] Mr Beck also acknowledged concerns that if someone was walking along the line of the grates they would not notice and they could trip. [128] Further, they could trip if they walked across the grates from the outside to the inside of the warehouse or vice versa, because they would not notice the difference in height where the grate had become bent. [129]

    118. T 175.13

    119. T 175.19 – .21

    120. T 175.23 – .24

    121. T 175.32 – .34

    122. T 175.36 – .38

    123. T 175.40 – .42

    124. T 175.44 – .45

    125. T 175.49 – 176.1

    126. T 176.3 – .8

    127. T 176.10 – .14

    128. T 176.19 – .21

    129. T 176.23 – .26

35. Mr Beck stated that apart from this issue, there was also a problem with the gap. [130] He stated that the gaps were apparent some of the time and changed. [131] He said that he could only guess that the grates came to be moved by the trucks and the forklifts. [132] He stated that he instructed senior supervisors to tell staff to watch out for the gaps and periodically, he would get staff to try to push them in together. [133]

    130. T 180.43

    131. T 181.15 – .19

    132. T 181.26

    133. T 181.30 – .49

36. In cross-examination by the Counsel for the Plaintiff, Mr Beck stated that before the accident, he did not notice the particular gap in the grates before the Plaintiff’s accident, but was aware of gaps along the length. [134] He acknowledged that the gap in question was 10 cm between the two panels [135] and as at July 2012 when a photograph Exhibit K was taken, the area was covered by a board and witch’s hat. [136] He acknowledged that the reason why the board and witch’s hat remained in place for the best part of nine to ten months was because the location where the panels of grates were located, were not easily “banged together to get rid of the gap” [137] and that the banging of the panels together to get rid of the gaps would have only created a gap somewhere else. [138] He acknowledged that the staff were supposed to use the smaller door [139] and this another exit was potentially “just as bad.” [140]

    134. T 182.24 – .26

    135. T 182.14

    136. T 183.49

    137. T 184.24

    138. T 184.31

    139. T 185.20

    140. T 184.18

37. JLL also tendered were two invoices for management fees for 7 March and 7 April 2011. These were payable to JLL by Perpetual Trustee Company Pty Ltd, the owner. [141]

    141. Exhibit D 3.4

LIABILITY

38. The Plaintiff relied on the following particulars of negligence against the Defendants:-

1. Failure to warn or adequately warn the Plaintiff that there was a missing section of grate and a stumbling hazard thereby;

2. Failure to rope, barricade or otherwise prevent the Plaintiff from walking into the area of open drain;

3. Failing to place a piece of metal or similar object over the gap between the grates so as to provide a safe walking surface for the Plaintiff;

4. Failure to ensure the common property of the premises was properly maintained and in good repair between 2009 and 2011;

5. Failure to keep the common property of the premises maintained and repaired in such a way that the safety of persons, tenants, their employees and agents and lawful entrants was reasonably ensured;

6. Failure to ensure the proper and adequate site safety inspections and risk assessments were undertaken on the premises including the common property between 2009 and 2011.

39. In its amendments to the Second Amended Statement of Claim it added:-

“[17] Failing to erect a railing across the drain at the edge of the warehouse door so as to prevent pedestrians from walking on the damaged drain cover; and

[18] Requiring the plaintiff to undertake her employment in close proximity to the damaged drain cover.”

Liability of Supply-Linq

40. The Plaintiff’s claim was that Supply-Linq owed her a duty of care corresponding to the duty of care of an employer. [142] Although not admitted in its Defence, Supply-Linq did not dispute that it owed the Plaintiff a duty of care [143] nor did it seek to describe it differently to that submitted by the Plaintiff.

    142. Second Further Amended Statement of Claim filed on 6 September 2016 at [12]

    143. T 214.24 – .29

41. Supply-Linq, as the host employer, clearly treated the Plaintiff in an analogous way to an employee requiring regular attendance, set hours of work and duties performed, and instructing her to work under a supervisor, being Mr Enzo Cordi. The Plaintiff’s evidence was that when she went to work for Supply-Linq, she had an induction and she was shown what to do. [144] Overall the Plaintiff accepted that by the time of the accident, she had worked for Supply-Linq for about three years. [145] The circumstances place Supply-Linq in the position analogous to that of an employer in regards to a non-delegable duty of care owed to the Plaintiff. [146]

    144. T 100.12 – .30

    145. T 100.34

    146. See TNT Australia Pty Ltd v Christie & Ors (2003) 64 NSWLR 1; [2003] NSWCA 47, 9 [41] (Mason P) and 31 [176] (Foster AJA); also see: Bostik Australia Pty Ltd v Liddiard & Anor [2009] NSWCA 167

42. The responsibility extends not only to the safety of the worksite but the premises used in furtherance of the employment. [147] The risk of harm for the purposes of s 5B of the 2002 Act was described by Supply-Linq as the risk of a person suffering injury by reason of falling into the gap in the metal grates outside the warehouse premises. The Plaintiff described it as the risk of injury due to the presence of a hole or gap between the grate covers.

    147. ACI Metal Stamping and Spinning Pty Ltd v Boczulik (1964) 110 CLR 372

43. The principles relevant to determining risk of harm was summarised in Uniting Church in Australia Property Trust (NSW) v Miller; Miller v Lithgow City Council. [148] Whilst it is conceded that the risk of harm may be differently described, the two formulations provided do not specifically account for the visibility of the relevant gap. Although this may vary at different times of the day, the gap itself was narrow and at a location where pedestrian access could be expected. An appropriate formulation may be: “a person might step into a gap located between two grates and fall into an unguarded gap between the grate covers over a drainage tunnel.”

    148. [2015] NSWCA 320 at [100] – [122] (Leeming JA with Basten and Simpson JJA agreeing)

44. Supply-Linq argued that in light of the Plaintiff stating that she had not, before the day of the injury, seen a gap in the metal grate grille over the drain, [149] this raised a question as to whether or not Supply-Linq should have taken precautions at all. Counsel for Supply-Linq stated:-

“That raises the question of whether or not my client should have taken any precautions at all. If there wasn't a gap before the day of the accident, it wasn't foreseeable that somebody might come to grief in a gap that might have developed in the morning or at some time before the plaintiff last observed the grilles so it's a question of foreseeability and whether or not a reasonable person in my client's position would have taken precautions.” [150]

149. T 24.21

150. T 216.10 – .15

45. This submission cannot be accepted. Foreseeability does not require the precise chain of events that led to the injury to be foreseen. [151] Mr Beck’s evidence was that he had been raising the matter concerning the grates since 2009. He stated that the grates went to the back of the building and vehicles drove over them, including forklifts. He accepted that the grates became damaged and he assumed that this had been because of point loading from the trucks and forklifts driving across which bent them in the middle, and raised the longitudinal edges above the level of the concrete creating a trip hazard. [152] Apart from this, he stated that the movement of the grates which he guessed was because of the forklifts turning on the grates and sliding them along. [153] He accepted that gaps had been apparent some of the time, and changed from time to time. His evidence was that instructions were given to senior supervisors to keep an eye on the grates and periodically, he would get staff to try to push them in as close as possible. [154] He stated that he may not have noticed the particular gap in the grate before the Plaintiff’s accident, but he had noticed gaps along the length. [155]

    151. Chapman v Hearse (1961) 106 CLR 112, 120 – 121 (Dixon J)

    152. T 180.37

    153. T 181.6

    154. T 181.30 – .32

    155. T 182.26

46. Beyond this however, the Plaintiff submitted that an examination of the relevant grates depicted in Exhibit C show one grate displaced because it could be seen that it was not sitting beyond the edges of the drain. The Plaintiff noted that Supply-Linq had taken action following the accident, in that it had placed a board and witch’s hat over the area in question as depicted in Exhibit K. On this basis, the Plaintiff submitted that this provided powerful evidence that this was not “shifted around and removed, by moving one or other of the grate covers, the drain covers.” [156] Reference was made to the fact that Mr Beck conceded that the area in question was such that the “panels of grate were not easily banged together to get rid of the gaps.” [157] Further the Plaintiff gave evidence that Mr Cordi said at the time of the accident: “Well, we’ve been trying to get that fixed for months.” [158] The Plaintiff was not challenged in this regard. I am satisfied that the Plaintiff’s submission and factual analysis is correct.

    156. T 242.6 – .8

    157. T 184.20 – .27

    158. T 37.4 – .5

47. It follows that the requirement of s 5B(1)(a) of the 2002 Act that the risk was foreseeable is satisfied. The risk was not far-fetched or fanciful, nor could it be regarded as being insignificant. The issue of whether in the circumstances a reasonable person in the First Defendant’s position would have taken those precautions requires a consideration of the matters referred to in s 5B(2) of the 2002 Act. In considering the probability that harm would occur if care were not taken, I consider this to be particularly high in light of what I accept was poor visibility when the loading task was carried out, the proximity of the grate to the entrance which staff were directed to use, and the forecourt area in which staff were required to load cardboard boxes from the crate and access, and reassemble the crate door. The likely seriousness of the harm was high, particularly where the size of the gap and the undisclosed depth of the drain channel where one’s weight would be held by the grate. As to the burden of taking precautions, the evidence of Mr Beck was of the scope of works obtained on 14 October 2009 [159] of $4895, although his expenditure between July and December 2012 was $2000 – 2500, with the particular area in question involving an amount of $500 – 600. I bear in mind in this regard the requirements of s 5C(a) of the 2002 Act. On a temporary level at least, the cost would have been negligible in providing a plywood cover and witch’s hat. Neither Defendant submitted that such precautions would not have prevented the harm. No issue of social utility arises.

    159. Exhibit D 3.1

48. Whilst s 5C(c) of the 2002 Act states that steps taken subsequently to obviate or reduce a risk of harm do not themselves constitute an admission of liability regarding risk such steps are often nevertheless significant in identifying the measures that might have been taken before the accident to manage the relevant risk. [160]

    160. Izzard v Dubier Marine Products (NSW) Pty Ltd [2012] NSWCA 132 at [97] (Macfarlan JA with Barrett JA agreeing)

49. Supply-Linq made no submission that if found to have breached its duty its breach would not have caused harm to the left knee and I am satisfied within the terms of s 5D of the 2002 Act that Supply-Linq’s breach of duty did cause that harm. The extent and nature of that harm, and harm to the back and left hip will be discussed below.

Liability of JLL

50. The Plaintiff contented that the evidence of Mr Beck was that he was the point of contact between the building managers and the owners of Supply-Linq. Mr Beck stated that this referred to CBRE, JLL and another company which he could not remember. [161] Mr Beck said that his interaction with the representatives of JLL was that they would do site inspections three to four times a year [162] and they would come in if called upon to address an issue. [163] He stated: “… we were looking after the site basically.” [164] He stated that he did not walk around with them half the time, but he left them to their own devices. [165]

    161. T 167.50

    162. T 169.12 – .13

    163. T 169.29 – .31

    164. T 169.42

    165. T 169.45 – .46

51. The Plaintiff submitted that Mr Beck’s evidence was that he may not have noticed the exact gap before the Plaintiff’s accident, but the gap could have been there but he did not notice it. [166] The Plaintiff also contended that the reason the board and witch’s hat was put over the area, was that the gap was not easily removed by banging the covers together. [167] The Plaintiff submitted that there were a number of adverse inferences that arose from the failure to call evidence on the part of JLL and that there was no witness to assist it as to the fact that the risk of harm existed at the time of the Plaintiff’s accident. Counsel for the Plaintiff stated:-

“It would have been an easy matter for him to call someone from a professional property management organisation, which is what the third defendant is, about the state of affairs of these premises prior to the plaintiff's accident, so that would not assist the defendant. The defendants completely failed to discharge its onus as to acting within its delegation, or being unable to act within its delegation. Your Honour has a few extremely general documents without any attempt being made to explain any of them.

That document, that expenditure document from 2012 which refers to replacing the fence and the grates, that is of absolutely no assistance because your Honour doesn’t understand why the expenditure for the fence is in with the grates in the first place. No one has come along to tell your Honour that it was impractical to do one job rather than the other or to say that it was outside the delegation or anything of that nature, so the third defendants completely failed to discharge its onus if it wanted in the first place to escape liability.” [168]

166. T 182.28 – .36

167. T 184.20 – .31

168. T 243.10 – .24

52. Supply-Linq drew attention to the scope of services that JLL provided under the Managing Agency Agreement which included:-

“Responsible for day-to-day management of the property together with associated administrative and accounting functions.” [169]

169. Exhibit D 3.3, Managing Agency Agreement between Jones Lang LaSalle and Perpetual Trustee Company, p 164

53. Supply-Linq further drew attention to the services that JLL was required to perform under the heading of “Physical Management” in the Managing Agency Agreement. These included:-

1. Undertake inspections of the property to ensure that the required standard of presentation, cleaning, repairs and operations are being maintained and to identify and address any health and safety aspects that require attention.

2. Respond in the first instance to any complaints or requests of the tenants, taking into account the Client’s interests and referring any matter of significance to the Client.

3. Control preventative maintenance programs or ensure that the tenants have done so for the property with the approval of the Client.

4. Supervise and direct any on-site staff employed by Jones Lang LaSalle or otherwise engaged by Jones Lang LaSalle or the Client.

5. Produce an information manual for the benefit of each tenant outlining the building operations and services provided at the property.

6. Provide recommendations to the Client for establishment and review of all maintenance and service contracts, monitor the performance of each contractor, and authorise contractors’ accounts for payment.

7. Arrange repairs and maintenance deemed prudent with any item of expenditure exceeding a predetermined amount requiring the prior approval of the Client unless contained in an approved budget or in the opinion of Jones Lang LaSalle the works are necessary for the protection of the property or the supply of essential services in the event of an emergency. [170]

   170. Exhibit D 3.3, Managing Agency Agreement between Jones Lang LaSalle and Perpetual Trustee Company, p 166

54. Supply-Linq tendered the various records it subpoenaed relating to the subject property, produced by JLL. [171] It was contended that the issue of repairing the grates was known by JLL by reason of an email which was sent by Mr Nick Karousos the portfolio manager for JLL on 6 May 2011 to Mr Greg Corsa (and copied to others) which included a list of repairs to the subject property, and included reference to: “Description: Check all drain covers and carry out repairs; Comment: x 2 quotes”. [172] The email from Mr Karousos requested Mr Corsa to take ownership of the attached quotes so they could track back the respective work.

    171. Exhibit D 1.5

    172. Exhibit D 3.3, Portfolio Job Sheet - Annexed to email from Mr Nick Karousos, p 183

55. JLL contended that pursuant to the terms of the Managing Agency Agreement it was constrained in the management of the property subject to instructions from the owner and to provide monthly management, operational and financial reports. [173] JLL referred to the fact that under the heading “Physical Management” it was required to undertake inspections of the property to ensure the required standards of presentation, cleaning, repairs and operations are being maintained, and to identify and address any health and safety aspects that required attention. [174] It argued that this was carried out within the constraints of reporting to the owner and acting in accordance with the client’s reasonable instructions. [175] JLL did not dispute that it had a responsibility in relation to the upkeep of the premises, but maintained that it was subject to an expenditure limit of $5000 and pursuant to Clause 3.3(b) of the Managing Agency Agreement, any higher amount required the client’s written approval. It acknowledged that it reported to the owner that the drains needed attention, however it contended that as expenditures was higher than its limit, it could only act with the owner’s approval.

    173. Exhibit D 3.3, Managing Agency Agreement between Jones Lang LaSalle and Perpetual Trustee Company, p 164

    174. Exhibit D 3.3, Managing Agency Agreement between Jones Lang LaSalle and Perpetual Trustee Company, p 166

    175. Exhibit D 3.3, Managing Agency Agreement between Jones Lang LaSalle and Perpetual Trustee Company, p 142, Clause 3.1(c)

56. JLL stated that the item itself had been identified as part of non-recoverable expenditure for the year ending 1 July 2010 – 30 June 2011 which referred to:-

“Side Drains & Fence Boundary Replacement – Required to lift presentation of property.” [176]

176. Exhibit D 3.3, Budget – Non-Recoverable Expenditure for 1 July 2010 – 30 June 2011

57. JLL also drew attention to the fact that the non-recoverable capital expenditure for the period 1 July 2011 – 30 June 2012, dated 12 July 2011, showed an item: “Side Drains and Fence Boundary Replacement” of $25,000. [177]

    177. Exhibit D 3.3, Budget – Non-Recoverable Expenditure for 1 July 2011 – 30 June 2012

58. JLL accepted that the work was not carried out within the 12 month period.

59. It next drew attention to the contents of the document titled “Budget Assumptions and Comments – Operational Expenditure” which referred to:-

“22531 R&M – General: An allowance has been made for rectification of drains adjacent to the building, renewal or repair of boundary fence (northern aspect).” [178]

178. Exhibit D 3.3, Budget – Non-Recoverable Expenditure for 1 July 2010 – 30 June 2011

60. It then relied on a break-down of non-recoverable expenditure [179] which referred to the following for July 2011:

“Side Drains & Fence Boundary Replacement $25 000.” [180]

179. Exhibit D 3.3, Budget – Non-Recoverable Expenditure for 1 July 2011 – 30 June 2012

180. Exhibit D 3.3, Budget – Non-Recoverable Expenditure for 1 July 2011 – 30 June 2012

61. It was argued that this was picked up in a subsequent document titled “Operational Expenditure” for 1 July 2011 – 30 June 2012, where JLL contended it was included in repair and maintenance general, an amount of $24,000. [181]

    181. Exhibit D 3.3, Budget – Operating Expenditure for 1 July 2011 – 30 June 2012

62. JLL reiterated that it could not carry out the works as they exceeded the expenditure limit. [182] It denied that it was under a duty to the Plaintiff, or that it had breached any duty [183] and in its Defence to the First Cross-Claim, it specifically relied on the terms of the Managing Agency Agreement entered into with the owners of the property. [184]

    182. T 228.38 – .42

    183. Third Defendant’s Defence at [7]

    184. Second Cross-Defendant’s Defence to the First Cross-Claim at [4](b) and [5](a)

63. JLL relied on a number of authorities to support its argument. [185]

    185. Bevillesta Pty Ltd v Liberty International Insurance Co [2009] NSWCA 16 at [53] (Hodgson JA with Gyles AJA and Nicholas J agreeing) ; Laresu Pty Ltd v Clark [2010] NSWCA 180; and Wynn Tresidder Management v Barkho [2009] NSWCA 149

64. The Managing Agency Agreement itself evidences that it was the managing agent of a number of properties. [186] Exhibit D 1.5 also evidences that it was managing other properties apart from those of the owner. It can be inferred from these documents that JLL has considerable experience in the management of properties and the reasonableness of the owner’s delegation to it was not in issue. The question which therefore arises is whether the obligations of JLL extended to taking reasonable steps to provide or recommend the provision of relevant repairs in the area in which the Plaintiff’s accident occurred. In this instance JLL’s documents are not themselves evidence that they were forwarded to the owners. JLL submitted that this could nevertheless be inferred. [187] In my view, it is more of a matter of conjecture rather than inference. The First Cross-Claim did allege a failure by JLL to arrange or properly arrange for the hazardous gap between the grates located on the common property to be repaired or properly repaired. No submission however was made as to a failure to seek instructions from the owners.

    186. Exhibit D 3.3, Managing Agency Agreement between Jones Lang LaSalle and Perpetual Trustee Company, p 182

    187. T 236.25 - .49

65. It is unnecessary to determine what communications transpired between JLL and the owners. What is of significance is that JLL provided no evidence as to how the figure of $25000 referred to in the document dated 12 July 2011, [188] being the non-recoverable capital expenditure required for “Side Drains & Fence Boundary Replacement” was calculated.

    188. Exhibit D 3.3, Budget – Non-recoverable Expenditure for 1 July 2011 to 30 June 2012

66. In the document earlier referred to as part of Exhibit D1.5, in May 2011 in Item 6 there was a reference to obtaining two quotes in relation to the topic of: “Check all drain covers and carry out repairs.” A subsequent document produced in the Defendant’s tender bundle describes that Item 17, a quotation for “check all drain covers and carry out repairs” from MID for $2050. The day due for completion of this work was 1 October 2011. Under the heading “Comments” it is noted that:-

“Parson’s quote not accepted, contacted refuse to supply number of drains involved and type of mesh. MID Advises 25 plus drains Recommend MID.” [189]

For replacing boundary fence in main driveway, the comments noted:

“Awaiting quotes.”

189. Exhibit D 3.3, Schedule of Works for May 2011

67. On this evidence and in the absence of any further explanation, I am satisfied that the amount actually required to have been spent to repair the area in question was within JLL’s delegation.

68. I am fortified in this conclusion by the fact that the amount actually expended was significantly less than $25,000 and also within the JLL’s delegation. The details provided in Exhibit D 3.3 suggests that matters other than safety were part of the figure it submitted being “To lift presentation of the property” and underneath that: “An allowance has been made for rectification of drains adjacent to the building, renewal or repair of boundary fence (northern aspect)” and “Side Drains & Fence Boundary Replacement.”

69. The duty of care of a managing agent was described in Laresu Pty Ltd v Clark. [190] Consistent with that decision, JLL did owe a duty of care to the Plaintiff.

    190. [2010] NSWCA 180 at [82] – [83] (Macfarlan JA with Tobias JA and Handley AJA agreeing)

70. I accept that JLL was aware or ought to have been aware of state of the grates. It had not only corresponded about carrying out repairs from 6 April 2011 but had, according to Mr Beck, carried out a series of inspections of the premises from time to time. On the evidence I can infer this included an inspection around the time that the correspondence was written. Whilst on the evidence, I cannot find a failure to ensure proper and adequate site inspection and risk assessment, it is clear from its own email correspondence that it was aware of the nature of the work that was required to be undertaken and it can be inferred of its significance. I am further satisfied that it had the means and authority to address it, but failed to do so.

71. Having regard to the provisions of s 5B of the 2002 Act, I am satisfied that the risk of harm previously described was foreseeable and not insignificant. JLL clearly knew that the forecourt area (described as the common area) was used by Supply-Linq and its workers and its use was provided for in the lease. [191] The use of that area at hours when external visibility was poor could also be inferred as the lease provided no restrictions on the time of its use and it was not in issue that Supply–Linq employees who opened the premises including the gate.

    191. Exhibit D 3.3, Lease Agreement between Supply-Linq Pty Limited and Perpetual Trustee Company Limited, p 103 at [15.13]

72. For the same reasons given in respect of Supply-Linq, I am satisfied that the probability that harm would occur if care were not taken and the likely seriousness of the harm was high. Also for similar reasons, the taking of precautions to avoid the risk of harm was not burdensome. No question of social utility arises. I am satisfied that a reasonable person in the position of JLL would have taken the precautions of installing railings or replacing the grates in question or at least a temporary solution of covering the area in the way later undertaken. Again I take account of s 5C of the 2002 Act in the way previously outlined in the case of Supply-Linq

73. JLL made no submission that if found to have breached its duty, the breach would not have caused harm, and I am satisfied within the terms of s 5D of the 2002 Act that JLL’s breach of duty did cause harm of a similar nature to that contended by Supply-Linq.

Law Reform (Miscellaneous Provisions) Act 1946 (NSW) s 5

74. s 5(2) of the Law Reform (Miscellaneous Provisions) Act1946 (NSW) entitles a tortfeasor to recover contribution from any other tortfeasor for such amount “as may be found by the court to be just and equitable having regard to the extent of that person’s responsibility for the damage.”

75. The principles enunciated by the High Court in Podrebersek v Australia Iron and Steel Pty Ltd [192] in the context of contributory negligence are a guide to the appropriate approach in the present context.

    192. (1985) 59 ALJR 492

76. I have identified earlier the manner in which each Defendant has breached their duty of care to the Plaintiff. Supply-Linq directed the work duties she was required to perform as well as the location on the premises where she was required to perform them and working at a time in the area where visibility was poor. Supply-Linq were aware of the hazard created by the drain but undertook no preventative action themselves beyond giving instructions to senior supervisors to keep an eye on the grates and periodically, to get staff to try to push them in as close as possible. There was no evidence that this system was actually enforced. Indeed this alleged system was not put to the Plaintiff in cross-examination. Mr Beck conceded that to the extent it was engaged it could have created hazards elsewhere. Further in light of the position of the grates where the Plaintiff occasioned her injury, the pushing together of the grates would have still left different heights of the adjoining grates. Whilst Supply-Linq corresponded with CBRE and JLL to address the hazard no action was taken until sometime after the Plaintiff’s accident. I accept the Plaintiff’s evidence that it was not brought to her attention by Supply-Linq. I accept that the need to traverse that area by reason of the fact that it was near an entrance way that Supply-Linq encouraged its workers to use.

77. JLL was to the managing agent with the direct responsibility for the condition of the premises subject to the terms of its Managing Agency Agreement. Notwithstanding the fact that the state of the drains and the hazard it caused was drawn to its attention, as it had to its predecessor, it failed to take any immediate action in circumstances where it was authorised to do so having been appointed managing agent since 11 March 2011 within the terms of the Agreement.

78. Overall I would assess the liability of Supply-Linq as greater, being 60% compared to JLL as 40%.

Workers Compensation Act 1987 (NSW) s 151Z(2)

79. Both Defendants contended for a proportionate reduction on account of contribution of the Plaintiff’s employer, YL Business Solutions Pty Ltd, pursuant to s 151Z(2) of the 1987 Act.

80. Supply-Linq submitted that it was incumbent on the Plaintiff’s employer to perform inspections of the area where the Plaintiff was working to detect risks of harm which ensued on 18 August 2011. It was argued that it should have been equally apparent to the employer’s representative (when they came out to the site) that there was a problem with the grates which was creating gaps. Supply-Linq relied on Pollard v Baulderstone Hornibrook Engineering Pty Ltd. [193] It was contended that the employer should have instructed the Plaintiff to not have continued to work until the problem was addressed.

    193. [2008] NSWCA 99

81. Again, it was the Plaintiff’s case that she was not aware of the presence of the gaps. Further, the Plaintiff was cross-examined about her interaction with her employer. [194] The Plaintiff’s evidence was that she could not recall if she was told what to do in the event of encountering a hazard in the workplace. [195] Subsequently she was told to tell somebody else in charge. [196] The Plaintiff did not recall being told to ring the employer for instructions. [197] It was not put to the Plaintiff that she was not told to stop working until it was safe. The Plaintiff had acknowledged that someone from the employer would attend from time to time, but stated that the person would be different every week. [198] She stated that they had asked her how she was going, and the interaction was described as “maybe two minutes” long. [199] The Plaintiff did not know if they had carried out an inspection of the drain. [200]

    194. T 99.4 – 100.14

    195. T 99.45

    196. T 100.7

    197. T 100.10

    198. T 99.9

    199. T 99.37

    200. T 99.30

82. The Plaintiff relied on the principles expressed in Dib Group Pty Ltd trading as Hill & Co v Cole. [201] On her behalf it was submitted as follows:-

“What we know is that someone from this employer was visiting the premises every week but there's again no evidence that would assist your Honour on any of the specifics of that. The first defendant bears the onus of proving the 151Z reduction. We don't know whether the person from YL came in the front door or the back door. The plaintiff says that there were discussions with YL at the beginning of the job, Someone from YL would know that the plaintiff was picking and packing and at a work station and having to go around to pick items et cetera et cetera.

But this is a one-off task that's done for a few minutes on a Thursday morning where the instruction would be, "Well, on Thursday mornings we go out, we empty out the paper out of these containers into a bigger container so that the truck can take the cardboard away."

HIS HONOUR: Was the plaintiff asked about this?

WELSH: No, not at all. She was asked some general questions but nothing in specific terns and no evidence was called by the first defendant that would permit your Honour to make affirmative findings about any failure on the part of the employer. All your Honour has is there was a problem with some of these grates. and there is a non-delegable duty of care. Now, had someone from YL spoken to a supervisor or someone about the grates they would have been told something about that perhaps, but we don't know, we simply don't know. The submission is that the first defendant has failed to discharge its onus of proving the extent of the employer's liability for the purpose of s 151Z.

The primary reason for that is, as I said, that this task which the plaintiff was undertaking was a very small part of her employment that is undertaken outside the premises, it's not apparently part of her ordinary job, and in those circumstances there should be no reduction on the count of s 151Z or an extremely small one. It's conceded that the plaintiff is not entitled to bring proceedings against her employer, so the effect of the 151Z reduction will be a proportionate reduction.” [202]

201. [2009] NSWCA 210

206. I have not accepted the psychological complaints that she makes and consider that although she continues to suffer from knee pain with some radiation the left hip and back was productive of symptoms to the extent indicated

207. In all the circumstances, I assess this as 26% of a most extreme case being a sum of $48,500.

Domestic assistance

210. The Plaintiff claims domestic assistance for the past only [391] and submitted as follows:

“Now, in relation to care, because Basten J said in Boral Bricks v Cosmidis that orthopaedic surgeons aren't qualified to give opinions about domestic assistance doesn’t mean that you can't get domestic assistance unless you have an occupational therapist's report. There are many cases in which the Court of Appeal has endorsed awards that were entered without such evidence, and one of those cases is Tumor v Judd(?) in which ten hours a week was awarded on a more or less commonsense basis.

Because what the orthopaedic specialists and other specialists can do is describe a person's restrictions, and since your Honour knows that this particular plaintiff has now got restrictions with all of those things I just read to you from Dr Bodel's report, bearing in mind we're only claiming for the first 12 months after the accident, it's entirely reasonable that she would have needed at least an hour a day of assistance, by which I mean Donna King taking on things that she wasn't doing before‑hand.

It's as simply as that, I would just ask your Honour to read the medical evidence, say, "Was there a need in that period?" bearing in mind it took up until August for them to decide on a course of surgical treatment for her. That easily founds the 12 months, and it's a matter for your Honour as to whether you're satisfied that there was more than six hours a week in that period. Donna King gave evidence about what she was doing for her, she said it was an hour to an hour and a half a day, five or six days a week of extra domestic work. That's all I want to say about that aspect, unless your Honour wants to ask me something about it.” [392]

391. See T 152.35 – .36 where the future domestic assistance claim was not pressed

392. T 254.1 – .26

211. The Defendants relied on the report of Ms Josephine Campisi, occupational therapist, who assessed the Plaintiff as requiring a total of 6 ½ hours of assistance for an eight week period post the August 2012 surgery. [393]

     393. Exhibit D 3.3, Report of Ms Josephine Campisi, dated 20 October 2015, p 60

212. The evidence of the Plaintiff as to domestic assistance is imprecise as to the periods and extent that she was unable to attend to some to some of her pre-accident domestic work. Nevertheless it implies that she was capable of doing vacuuming at times, [394] cleaning the bathroom [395] and after six months laundry once a week. [396] When cross-examined as to the contents of Ms Campisi’s reports she conceded doing some gardening when she forces herself. She could not recall telling Ms Campisi that she could hang sheets on a clothes line.

     394. T 81.1 – .49

     395. T 82.20 – 83.20

     396. T 83.22 – 84.10

213. Ms King indicated that she carried out additional domestic tasks following the Plaintiff’s injury such that met the thresholds in s 15(3) of the 2002 Act. Ms King stated that the additional work was an hour and a half each day for five to six days probably to the end of twelve months. [397] She described the duties as cooking, cleaning, washing, ironing, gardening, helping the Plaintiff in and out of the shower and “everything” housework comes under. [398] Earlier in her evidence she was asked about the housework the Plaintiff did following the accident and stated:-

“Very little, not like she would normally do and used to do. She'd still cook a meal, you know, maybe put a load of washing in the machine and hang it on the portable clothesline. Things like that.” [399]

397. T 152.13 – .33

398. T 152.26 – .30

399. T 145.7 – .9

214. Ms King stated that before the accident the Plaintiff cooked most nights but following the accident it was three possibly four days a week. [400] This was consistent with the Plaintiff’s evidence that she cooked three days a week. [401]

     400. T 145.23 – .25

     401. T 79.47 – 80.2

215. In cross-examination Ms King conceded that in the twelve month period the Plaintiff did domestic work but no heavy work which she described as “vacuuming, changing beds hanging sheets or towels or heavy laundry on the line or anything like that.” [402] Otherwise cross-examination did not appear to be referenced to the restricted period in which the Plaintiff made her claim but rather to the broader post-accident restrictions which the Plaintiff advanced as part of her non-economic loss claim.

     402. T 154.25 – .27

216. There was evidence that following the accident Ms King attended to the gardening of the home where they resided – a task previously performed by the Plaintiff.

217. In Richard Ronald McConachie trading as Willancorah Pastoral Company v Graham John Pack,[403] the NSW Court of Appeal rejected a mechanical approach to the assessment of voluntary domestic assistance. Stein AJA stated:-

“[20] The written submissions of the appellant take on an air of unreality. They express a mechanical and arithmetic approach to the calculation of gratuitous domestic care services which the subject matter will not easily bear. As Foster AJA said in Werner v Krahe [2002] NSWCA 168 at [27] precision is impossible in this area and the question is largely one of impression.”

403. [2004] NSWCA 148 at [20] (Stein AJA with Hodgson and Bryson JJA agreeing)

218. My own impression of the evidence is that the Plaintiff did perform domestic tasks in the twelve months following the accident although not the heavier duties and otherwise made adjustments in performing household tasks. There was clearly a period where the Plaintiff required great domestic assistance such from 9 January 2012 when her symptoms escalated and for the eight weeks she was off work following the arthroscopy. I would accept therefore that the threshold in s 15(3) of the 2002 Act was met from 9 January 2012 to 8 October 2012 when she returned to work eight weeks after surgery, For much of this period the Plaintiff was either off work or performing limited hours duties at work. This amounts to a total of 39 weeks.

219. On the basis of the medical opinion I accept 6 ½ hours as satisfying the requirements of s 15(2) of the 2002 Act. Using the applicable hourly rates prescribed by s 15(4) of the 2002 Act from 9 January 2012 for 39 weeks, I would calculate the total amount for domestic assistance as $9772.29.

SUMMARY

220. The total award of damages are:

Head of damage	Award
Past economic loss	$24,417.94
Past loss of superannuation	$2685.97
Fox v Wood	$318
Future economic loss	$40,000
Past out of pocket expenses	$48,935.12
Future out of pocket expenses	$15,000
Non-economic loss	$48,500
Past domestic assistance	$9772.29
TOTAL	$189,629.32

221. From this amount, 20% is to be deducted on account of s 151Z of the 1987 Act leaving a balance of $151,703 (rounded down).

ORDERS

222. For these reasons there will be a verdict and judgment for the Plaintiff against the Defendants in the sum of $151,704 (rounded down).

223. There will be a verdict and judgment in favour of the First Defendant against the Third Defendant on the First Cross Claim in the sum of $60,681.

224. There will be a verdict and judgment in favour of the Third Defendant against the First Defendant on the Second Cross Claim in the sum of $91,022.

225. Subject to any application to my Associate within 7 days to relist the matter for any further or other order as to costs, the Defendants are to pay the Plaintiff’s costs and I make no order as to the costs on the Cross-Claims.

Endnotes

Decision last updated: 24 February 2017