Roberson v Icon Distribution Investments Limited and Jemena Networks (ACT) Pty Ltd trading as ActewAGL Distribution

[2020] ACTSC 320

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Roberson v Icon Distribution Investments Limited and Jemena Networks (ACT) Pty Ltd trading as ActewAGL Distribution
Citation:	[2020] ACTSC 320
Hearing Dates:	26 to 29 October 2020
Decision Date:	2 December 2020
Before:	Crowe AJ
Decision:	See [351]
Catchwords:	CIVIL LAW – NEGLIGENCE – Personal injury – plaintiff employed by defendant – damages claimed in relation to three separate injuries – plaintiff successful in two claims –
assessment of damages
CIVIL LAW – BREACH OF STATUTORY DUTY – Personal injury to employee – plaintiff claims breach by defendant of Work Health and Safety Regulation 2011 (ACT) – defendant relies on
s 267 of Work Health and Safety Act 2011 (ACT) to defend claim
– held that plaintiff’s claim not precluded by s 267 – plaintiff’s
claim for breach of Work Health and Safety Regulation 2011 (ACT) ss 34, 35, 36 and 60 successful
DAMAGES – PERSONAL INJURY – Plaintiff claims loss of
superannuation damages at 11.5% of amounts awarded for loss
of earning capacity – defendant argues that 11% should be allowed – held appropriate to award damages at 11.5%
DAMAGES – PERSONAL INJURY – Plaintiff claims interest on past loss of superannuation damages – defendant opposes award – held interest should be awarded
Legislation Cited:	Civil Law (Wrongs) Act 2002 (ACT) ss 42, 43, 44, 45, 102(2) Legislation Act 2001 (ACT) s 148 Limitation Act 1985 (ACT) ss 16A, 36 Occupational Health and Safety Act 1985 (Vic) s 28 Occupational Health and Safety Act 1989 (ACT) s 223 Occupational Health and Safety Act 2004 (Vic) s 34 Scaffolding and Lifts Act 1912 (ACT) Scaffolding and Lifts Regulation 1950 (ACT) s 73(1)(b) Superannuation Guarantee (Administration) Act 1992 (Cth) Work Health and Safety Act 2011 (ACT) s 267 Work Health and Safety Regulation 2011 (ACT) ss 34, 35, 36, 60
Work Health and Safety (Hazardous Manual Tasks) Code of
Practice 2011 (ACT) Work Safety Act 2008 (ACT) s 225
Cases Cited:	Acir v Frosster Pty Ltd [2009] VSC 454
Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301
Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 Czatyrko v Edith Cowan University [2005] HCA 14; 79 ALJR 839
D’Arcy v Caltex Australia Petroleum Pty Ltd [2019] ACTCA 27;
347 FLR 367 Dykes v Bunnings Group Ltd (No 2) [2016] ACTSC 226 Fox v Wood (1981) 148 CLR 438 Govic v Boral Australia Gypsum Ltd [2015] VSCA 130; 47 VR 430 Heuston v Yore Contractors Pty Ltd (Unreported, Supreme Court of New South Wales, Hunt CJ at CL, 9 March 1992) Johnson v Forefront Automotive Industries Pty Ltd [2013] ACTSC 44 Macolino v Royal North Shore Hospital (Unreported, Supreme Court of New South Wales, Badgery-Parker J, 22 April 1992) Mason v Demasi [2009] NSWCA 227 Meyer v Cool Chilli Pty Ltd [2015] ACTSC 336; 302 FLR 407 Morvatjou v Moradkhani [2013] NSWCA 157 Najdovski v Crnojlovic [2008] NSWCA 175; 72 NSWLR 728 Stefek v Garnama Pty Ltd [2014] ACTSC 140 Strong v Woolworths Ltd [2012] HCA 5; 246 CLR 182
Texts Cited:	Revised Explanatory Statement, Work Health and Safety Bill 2011 (Cth)
Parties:	Mitchell Roberson (Plaintiff)
Icon Distribution Investments Limited and Jemena Networks (ACT) Pty Ltd trading as ActewAGL Distribution (Defendant)
Representation:	Counsel
R McIlwaine SC with A Muller (Plaintiff)
D Shillington (Defendant)
Solicitors
Maliganis Edwards Johnson (Plaintiff)
Hall & Wilcox (Defendant)
File Number:	SC 552 of 2019
Crowe AJ:
Introduction

1.       These proceedings involve a claim brought by Mitchell Roberson (the plaintiff) for damages in relation to three separate injuries said to have been suffered by the plaintiff in the course of his employment as an electrician with Icon Distribution Investments Limited and Jemena Networks (ACT) Pty Ltd trading as ActewAGL (the defendant). The injuries claimed by the plaintiff are:

(1)	an injury to his lower back and right hip said to have been caused by work the plaintiff undertook in approximately November and December 2013 (the 2013 Injury);
(2)	an injury to his lower back, said to have been suffered as the result of a frank incident of heavy lifting on 16 December 2017(the 2017 Injury); and,
(3)	an injury to his left hip claimed to have occurred on 15 October 2018 when the plaintiff was required to adopt an awkward posture on top of a large switchboard to perform his duties (the 2018 Injury).

2.       The plaintiff alleged negligence and breach of statutory duty by the defendant as his employer in relation to each injury. I will turn to the details of these allegations when I come to deal with the issue of liability.

3.       The defendant, by its Defence, has put in issue liability, causation and damage in

relation to each of the plaintiff’s causes of action. Moreover, the defendant pleaded

that the plaintiff’s claim in relation to the 2013 Injury was barred by operation of s 16A

of the Limitation Act 1985 (ACT). The defendant also pleaded (in relation to each injury), that if the plaintiff was injured as alleged, that injury was caused, or

contributed to, by the plaintiff’s own negligence. Ultimately, the defendant only

submitted that there was contributory negligence in relation to the 2013 Injury.

4.       In response to the limitation defence, the plaintiff filed an Application in Proceeding on 20 October 2020 seeking an order extending the 3 year limitation period to the date on which he issued the Originating Claim which commenced these proceedings, namely 7 November 2019. The Application in Proceeding was returnable on 26 October 2020, which was the day on which the matter was listed for substantive hearing. Mr McIlwaine SC, leading Mr Muller, appeared for the plaintiff on that day. Mr McIlwaine SC sought to have the Application in Proceeding determined on the evidence which was to be called in the substantive hearing. That course was not opposed by Mr Shillington, who appeared as counsel for the defendant.

5.       At the commencement of the hearing, Mr McIlwaine SC applied to amend the Statement of Particulars which had been filed on behalf of the plaintiff on 28 May 2020. The proposed amended statement of particulars became Exhibit P1. Most of the contents of the amendments proposed in that document were not opposed by the defendant. However, Mr Shillington did oppose the amendments proposed at

paragraphs [10.5] to [10.8] (under the heading “Future Loss of Earning Capacity”). In

his original Statement of Particulars, the plaintiff had claimed a total sum of $506,260 for future loss of earning capacity. He sought to amend that to a claim for $1,315,621, based on the assertion that he would suffer a loss of $1,318.39 net of tax per week to age 70.

6.       I allowed the amendments other than those proposed in relation to future loss of earning capacity. I decided to reserve dealing with that application until completion of the evidence. Ultimately, the amendment in relation to future loss of earning capacity was not allowed.

The factual evidence

The plaintiff – evidence-in-chief

7.       The plaintiff was born in 1988. He was thus 25 years of age at the time of the 2013 Injury, 29 years of age at the time of the 2017 Injury and 30 years of age at the time of the 2018 Injury. He is now 32 years of age. The plaintiff grew up in Australian Capital Territory (ACT). He completed Years 11 and 12 at Hawker College in 2004 and 2005. In early 2006, the plaintiff commenced work with a private business as an apprentice electrician. He worked with that business until mid-2006. He then started work with Woolworths stocking a fruit and vegetable department in one of its stores.

8.       At the beginning of 2008, the plaintiff sought to return to his training as an electrician, this time with the defendant. He underwent a medical assessment for that purpose on 17 January 2008. He was passed as fit for his intended duties and in the following month he completed an introductory course with the defendant. The plaintiff commenced the course work required for the apprenticeship at the Canberra Institute of Technology (CIT) in March 2008. The plaintiff explained that he enjoyed the

electrical work. He was fit and “good at physical things”. He thought he had a good

mind for the work and liked working with his hands. He regarded himself as being good at working out technical and physical issues. The plaintiff said that he also enjoyed working outside.

9.       The plaintiff completed his apprenticeship with the defendant in April 2011 at which time he graduated from CIT with a Certificate III in Electrotechnology.

10.     The plaintiff said that he had formed a relationship with Tegan Bailie in 2006. He and Tegan had been living together with one or other of their parents prior to early 2010, at which time they moved in together in rented accommodation in Dunlop.

11.     At the end of 2010 the plaintiff had started working for the defendant performing

installation work in the defendant’s Greenfields Section. He remained in the

Greenfields Section after he completed his trade qualification in 2011. The plaintiff’s

duties involved working on electrical infrastructure for new developments in the ACT. The electrical infrastructure was largely underground by that time. The plaintiff worked

on fitting off what were referred to as “mini pillars”, streetlights and other components

of the electrical infrastructure. The “mini pillars” were green boxes to which either three or five residences could be connected. The plaintiff’s job was to connect infrastructure cabling to the “mini pillars”. This involved the plaintiff working within

trenches which had already been dug by excavation contractors.

12.     The plaintiff described the need to climb out of trenches around 15 times a day. This required him to put his tools up onto ground level and then to climb out of the trench by putting his leg up. The plaintiff said that in 2010 when he started these duties, he

noticed that he would feel “quite sore and stiff” as the day went on. He said that the

trenches were around 1.4 m deep, although they did vary in depth.

13.     The plaintiff also worked on substations, although this was irregular and did not cause him any difficulties.

14.    In relation to streetlights, the plaintiff said that the streetlights had already been erected and his task was to fit small switchboards through an access door which was about 300 to 400 mm above the ground level. He would then connect the switchboard

to the wiring already in the light pole. This required him to “crouch down in sort of like a frog pose” for about 20 minutes. The plaintiff said that this caused him to “cramp up”

and “get quite sore in the hips”. He also described there being a lot of “leverage” on

the low back due to leaning into the light pole.

15.     Mr McIlwaine SC asked the plaintiff about using a ladder to get into and out of the trenches. The plaintiff said that it would have been too cumbersome having regard to the tool bag he had to carry. He also thought that it would be difficult to safely place the ladder in the trenches having regard to the uneven surface of the trench floors.

16.     The plaintiff said that sometimes steps were cut at one end of long trenches. Mostly he was not able to use steps to get out of the trenches. He saw no reason why more steps could not have been excavated to allow access to and from the trenches.

17.     In relation to the streetlight work, in 2011 the plaintiff obtained his own camp stool to sit on while connecting the switchboards. He found that helped.

18.    In 2012 the plaintiff and Tegan purchased a four-bedroom residential property in Chisholm in the ACT. They moved into that property.

19.     During that year the plaintiff continued working in the defendant’s Greenfields Section

and performing similar duties to those described above. He said that his relationship

with Tegan was “very good” during that year. They planned to have children and

indeed Tegan became pregnant and in early 2013 their daughter Olivia was born.

20.     In 2013, the plaintiff said that he continued working in the Greenfields Section. He

said that he noticed “aggravations” in his right hip and lower back getting in and out of

the trenches. He clarified that he was experiencing fatigue, cramping and aching, and

that every now and again he would experience a stabbing pain as “he threw a leg
over or something like that”.

21.    During 2012 and 2013, the plaintiff performed the Greenfields work with the assistance of Chris Burridge. From time to time he also worked with Amy Cuthbertson or Clinton Reilly. His supervisor during this time was Paul Rankin.

22.     The plaintiff said that in the last few months before Christmas 2013, he started to get more constant pain in his right hip and lower back when climbing out of trenches. In particular, he described a stabbing pain in his right hip. The plaintiff said that due to his ongoing pain, Tegan had to take over some of the domestic tasks which he had previously done. He estimated this at around 10 hours per week of additional work for Tegan.

23.     On 15 December 2013, with the help of Paul Rankin, the plaintiff completed what was

referred to as a “Guardian” report. This was effectively an injury notification report.

24.    The plaintiff continued working up to the Christmas break and returned to work performing his normal duties on 8 January 2014. He was then contacted by a person

who he described as the defendant’s “wellness advisor”. This was said to be either Angela Seavers or Jessica Piechowski. The defendant’s wellness advisor arranged

for the plaintiff to see Dr P Warfe at Aspen Health in Deakin on 16 January 2014. Dr Warfe suggested that the plaintiff have an X-ray taken of his right hip and that the plaintiff undergo a course of physiotherapy. Dr Warfe also referred the plaintiff to Dr A Burns, an orthopaedic surgeon.

25.     The plaintiff said that while he continued to work, the pain in his right hip and lower back was getting worse. At some time in early 2014, the plaintiff was certified for restricted duties, although he was not able to recall the precise restrictions that were put in place at that time. He made a workers compensation claim in relation to the injury on 23 January 2014.

26.     On 31 January 2014, the plaintiff had an MR Arthrogram of his right hip and on 5 March 2014 he underwent CT scanning of the right hip. On 20 March 2014, the plaintiff consulted Dr Burns who recommended surgery on the right hip. The following month the plaintiff attended Dr I Kelman, an orthopaedic surgeon, for assessment on

behalf of Allianz Insurance which was the defendant’s workers compensation insurer.

27.    In July 2014, the plaintiff was promoted to the position of “Site Lead” in the

Greenfields Section. He explained that he had been acting in that role previously as his predecessor had moved on. The duties of the position included supervising the trades assistant, making risk assessments and documenting the progress of work. His physical duties did not change, in particular he was still required to get in and out of trenches.

28.     The plaintiff said that he was not aware of any risk assessment having been carried out in relation to the difficulty in getting in and out of the trenches, nor in relation to accessing the streetlight pole doors.

29.     On 21 July 2014, Dr Burns performed surgery on the plaintiff’s right hip. The plaintiff

was discharged from hospital the following day, although he was required to use crutches to mobilise over the next 6 weeks. He was off work for 3 months after the operation.

30.     In relation to the domestic work, the plaintiff said that Tegan had continued doing approximately 10 hours additional domestic work per week due to his incapacity. That arrangement continued at that level for around 6 months after the operation.

31.     The plaintiff had physiotherapy and other rehabilitation treatment and in October 2014 he returned to work, although on restricted duties. He was not to work in the trenches and he had limits placed on the weights he was able to lift or move. Another electrician, Scott Farthing, was provided to assist the plaintiff on site. Eventually on 2 February 2015 the plaintiff returned to full duties.

32.     From the plaintiff’s perspective, the surgery was reasonably successful. He found that

it helped to reduce his pain levels although he still had some aching and muscle

tightness. He also had some “niggling aches” in the lower back area. Nevertheless,

the plaintiff was able to continue with his full duties in the Greenfields Section until

October 2017 when he transferred to the Substation Section at the defendant’s

Greenway depot. In the meantime, he and Tegan’s second daughter, Sienna, was

born in August 2015.

33.     The plaintiff described the work in the Substation Section as involving the fabrication

and installation of what he referred to as “chamber substations”. Chamber substations

are large metal substations which are placed in larger commercial buildings. His duties in the Substation Section included maintenance work on high voltage switching stations and the like. The fabrication work required the plaintiff to perform welding work, some of it at a low level which meant that he had to crouch down. He found that this caused him a problem with his right hip.

34.    On 16 December 2017, the plaintiff was engaged in removing and replacing a switchboard at Canberra Airport. At one point this task required a switchboard to be lifted from the room where it was located for the purposes of removal. The plaintiff and three other men did this by manually lifting and moving the item. The plaintiff identified the orange switchboards shown in photographs at pages 70 and 71 of Exhibit P6 as being very similar to the one which had to be removed. He said that the switchboard weighed about 400 kg. He also said that as in the photographs, the switchboard in question rested across a checker plate which covered over a cable trench.

35.     The plaintiff was taken to page 69 of Exhibit P6. He confirmed that he had drawn the diagram at that page. It gave the dimensions of the switchboard as 2.12 m in length,

1.58 m in height and 1 m in width. The plaintiff’s lifting position was shown to be at

one end of the switchboard with his feet spread 600 mm apart to straddle the cable trench. One other man was shown lifting to the left and slightly forward of the plaintiff with the other two men each lifting the corners at the opposite end of the switchboard from that being grasped by the plaintiff.

36.     According to the plaintiff it was not possible to push the switchboard out of position because of the cable trench underneath it. Also, the men required to remove the switchboard were not provided with mechanical or lifting equipment to remove it from the position it occupied over the trench.

37.     The plaintiff described suffering “a very sharp pain” in his lower back as he lifted the

switchboard in the position depicted on page 69 of Exhibit P6.

38.     In response to a question from his counsel, the plaintiff said that he did not know why the team he was working with was not provided with equipment to lift the switchboard. He said that a mobile engine crane could possibly have been used to move the switchboard.

39.     The plaintiff said that the back pain was eight or nine out of 10. The plaintiff said that the injury occurred sometime in the mid-morning and that he avoided doing any strenuous work for the rest of the day. In particular, he avoided lifting. It was the last day before the Christmas break. After work that day, the plaintiff went home and laid on the couch. He went to bed early that night.

40.     The plaintiff was off work until 8 January 2018. He spent most of the holidays on a recliner couch or in bed. He was very stiff and not able to do much. The plaintiff

described the pain during that period as “still around the eight or nine, very painful”.

Not only was Tegan doing most of the family’s domestic tasks during this period, but

she was also helping the plaintiff with his shoes and socks at that time. He estimated that Tegan was again spending around 10 hours per week doing the things that he would otherwise have been doing.

1. The plaintiff said that he did put in a “Guardian” form and that it was suggested that

   he obtain some physiotherapy treatment at Elite Rehab & Sports Physiotherapy

   (Elite) in Deakin, which he did. On his return to work he was working on “SCADA cabinets”. He described these as being refrigerator size cabinets which contained the

   control telemetry for the electrical network. He was required to stand to fit the wiring into these cabinets. He continued to suffer lower back pain and also nerve pain going down his left leg. He also had some pain still in his right hip. The plaintiff said that he was told by someone at Elite that the pain was related to a facet joint and that it should get better.

42.     In September 2018, the plaintiff saw a Dr Praet at the request of Allianz Insurance. Dr Praet referred the plaintiff to a podiatrist, Mr Balthazar with the intent that the plaintiff would obtain some orthotic inserts to correct a leg-length discrepancy.

43.     On 15 October 2018, the plaintiff was working at the Australian National University (ANU) to fit out a new chamber substation. This type of substation was identified by reference to the photograph at page 74 of Exhibit P6. The plaintiff said that the ANU switchboard was of a similar weight (if not heavier) to the Canberra Airport switchboard. The team of workers at the ANU again had to manually lift the switchboard into position. The switchboard sat adjacent to the cable trench, rather than across it (as was the case at Canberra Airport). This was demonstrated by reference to the plan at page 76 of Exhibit P6.

44.     Once the switchboard was in position, the plaintiff’s task was to fit copper busbars to

the inside of the switchboard. The plaintiff would climb to the top of the switchboard and then using a kneeling board he would straddle the top of the switchboard, lean down and bolt the busbars into place. He described his posture as crouching down and kneeling straight over. While he was doing that, the plaintiff said that he experienced significant stabbing pain in his left hip and in the lower back. The plaintiff described the pain as a nine or 10 out of 10. He stopped work immediately. He was unable get comfortable.

45.     The plaintiff said that he thought the work could have been done from a scissor lift. That would have avoided the need to adopt the posture in which he was injured. He had not been offered the use of a scissor lift.

46.     Later that day, the plaintiff attended the Isabella Plains Medical Centre and obtained a referral to Dr Burns. It seems likely that he also received a referral for an X-ray of the left hip. This was carried out on 18 October 2018. The plaintiff saw Dr Burns on 8 November 2018. He underwent MRI scanning of his lower back on that same day at the request of Dr Burns, who also provided a medical certificate putting the plaintiff off work until 15 November 2018.

47.     The plaintiff returned to Dr Burns on 22 November 2018 and was referred to Dr N Tsai, an orthopaedic surgeon, for management of his lower back condition. The plaintiff consulted Dr Tsai that same day. Dr Tsai certified the plaintiff as fit for light duties only for the next 6 weeks.

48.     On 23 November 2018, the plaintiff had a CT guided cortisone injection into the L5/S1 disc area at I-MED Radiology in Woden.

49.     Subsequently, on 29 November 2018, the plaintiff attended a General Practitioner (GP), Dr D Shanmugam at the Erindale Medical Centre. Dr Shanmugam has become

the plaintiff’s treating GP since that time. He has seen the plaintiff regularly since

November 2018, usually in company with Ms Natalie Ettinger (an occupational therapist appointed by Allianz Insurance). The plaintiff has not returned to physical electrical work since November 2018.

50.     The plaintiff has discussed the possibility of spinal fusion surgery with Dr Tsai. The plaintiff said that he is reluctant to go down the surgical path at this stage because of his age. Dr Tsai informed the plaintiff that if the lower back (presumably from L4 to S1) is fused, the healthy discs above those levels would deteriorate faster than would

otherwise be the case. The plaintiff’s attitude is that he will not undertake a spinal

fusion “until I absolutely need it.”

51.    In relation to the left hip, the plaintiff had cortisone injections into the joint on 10 December 2018 and again on 5 February 2019. He returned to work on restricted duties 3 hours per day, 3 days per week on 11 February 2019. This was administrative work which the plaintiff saw as being of little utility.

1. The plaintiff recounted that he had been feeling “pretty useless” after his left hip

   injury, and that his relationship with Tegan has suffered as a result. This led to constant arguments and the breakdown of their physical relationship. He also feels the loss of his trade keenly.

53.     On 27 February 2019, the plaintiff attended Dr Burns again. On this occasion Dr Burns recommended surgical treatment for the left hip. Initially Allianz Insurance declined to cover the cost of the planned left hip operation. As a result of that decision, the plaintiff sought legal advice from his current solicitors. The plaintiff saw Mr J Little for the initial consultation on 1 April 2019. As a result of the advice given by Mr Little, the plaintiff became aware, for the first time, that he could bring an action for damages in relation to the three injuries which are the subject of these proceedings.

54.     By this time, the plaintiff was working 4 hours per day, 3 days per week.

55.     On 24 June 2019, the plaintiff underwent the operation recommended by Dr Burns on his left hip. He paid the cost of approximately $6,000 himself. Since then, Allianz Insurance reconsidered its position and ultimately decided to reimburse the plaintiff.

56.     After the hip operation, the plaintiff was again off work for 3 months. He returned to light duties 4 hours per day, 3 days per week on 25 September 2019. His hours increased to 5 hours per day from 27 November 2019.

57.     On 6 November 2019, the plaintiff consulted Dr Tsai in relation to his back condition. Dr Tsai prepared a document setting out various recommendations arising from the

plaintiff’s back condition. Dr Tsai’s recommendations included that the plaintiff was

not to lift 10 kg from ground to head height, that he not lift 10 kg while twisting at the waist, and that he be restricted from climbing in and out of trenches and crawling into confined spaces. Dr Tsai also suggested that the plaintiff should not exert a pushing force of 50 kg and that he should avoid driving on uneven terrain.

58.     The plaintiff said that with these restrictions he was unable to return to his previous duties as an electrician, or indeed to do any manual work.

59.     The plaintiff confirmed that he had attended a number of experts for the purposes of this case. In particular, the plaintiff confirmed the accuracy of the symptoms he described to Dr L Le Leu, occupational physician, and Mr T Sutton, psychologist.

60.     On 13 May 2020, the plaintiff’s hours were increased to 6 hours per day, 3 days per

week. However, this led to an increase in symptoms which particularly interfered with

the plaintiff’s sleep, with the consequence that his hours were again reduced to 5

hours per day, 3 days per week. The plaintiff has continued to work those hours, although he continues to have constant pain in his lower back. The plaintiff said that as the day goes on, the pain seems to spread throughout his back even up towards his shoulders. At the beginning of the shift at work the pain is four or five out of 10, but by the end it will increase to six or seven out of 10.

61.     The plaintiff said that his hips ache and that he will get a sharp pain every now and then, particularly if he sits too long in a chair. The plaintiff said that he has a sitting tolerance of an hour or so.

62.     Dr Shanmugam referred the plaintiff to a Mr B English, pain psychologist. The plaintiff attended him for the first time the week before the hearing commenced. The plaintiff said that he found the session with Mr English to be helpful, having regard to his current mental state.

63.     Tegan has continued to perform the additional 10 hours or so a week in domestic chores up to the present time.

64.     The plaintiff has continued to see Dr Shanmugam every 4 to 6 weeks. The plaintiff takes Panadol, Nurofen and Mobic as required, and occasionally Valium to help with sleep and Panadeine Forte when his pain is bad. He is not having ongoing physiotherapy, although the last course he had did provide some assistance.

65.     Overall, the plaintiff said that he was unsure and anxious about his future.

The plaintiff – cross-examination

66.     Mr Shillington commenced the cross-examination by exploring with the plaintiff the work which he was currently doing (which involved producing training manuals for electricians). The plaintiff agreed that he was not having difficulties in performing those duties. Although his current duties involve computer work, the plaintiff did not agree that he had good computer skills.

67.     The plaintiff expressed hope to be able to utilise his electrician skills in some form (perhaps in a supervisory or training role) in the future. He agreed that he was keen to work.

68.     In relation to the domestic tasks at home, the plaintiff agreed that he was able to drive to pick up the children from school, and that he did that. The plaintiff agreed that he was able to look after the children and provide them with meals and snacks. The plaintiff said that he had difficulties with loading and unpacking the dishwasher.

69.     Mr Shillington asked the plaintiff about the work in the Greenfields Section which the plaintiff had performed in the years leading up to the 2013 Injury. The plaintiff agreed that he had worked in many different locations, although he would spend many months on each separate development project. The projects varied in size and there were differing developers and contractors. Some of the civil works contractors would prepare the sites differently from others. The plaintiff agreed that his job at the time entailed physical work and a lot of walking on uneven surfaces wearing heavy boots. The plaintiff had an ActewAGL van which he could sometimes take onto the work sites, although there were other occasions where this was not possible.

70.     The plaintiff did not play any sport during that time, however he did engage in some motor bike riding. At the time of the hearing he owned five motorcycles. The plaintiff said that he thought he owned two or three motorcycles in 2011.

71.     In response to questions about manual handling training, the plaintiff recalled some general safety training, although he could not recall any such training being part of his induction.

72.     Mr Shillington suggested that the depths of trenches in the Greenfields Section could vary depending on the civil contractor on a particular site. The plaintiff agreed with this, however he did not agree with the suggestion that they could be as shallow as 80 cm. The plaintiff also agreed that whether or not steps were cut into the trenches depended on the contractor, and the specific trench in question.

73.     The plaintiff agreed that he would have worked at several different Greenfields sites during each year and that he would be guessing to identify those now. However, the plaintiff said that he had a diary which might contain that information.

74.     In relation to the steps cut in trenches, the plaintiff confirmed that where they were present, the steps were only at one end of a trench. The plaintiff said that he thought that the most he would have to walk would be a few hundred metres when he was working in a trench to access the steps. However, on occasions he would be working quite close to steps. The plaintiff said that after he became the Site Lead he did complain a couple of times to the civil contractors about the absence of steps, although that did not seem to make any difference.

75.     The plaintiff was questioned at some length as to whether he could have carried and used a ladder to get in and out of trenches. He saw some difficulty with that course having regard to the tools which he carried from pillar to pillar.

76.     The plaintiff confirmed that he completed a job risk assessment form each day after he became the Site Lead. The plaintiff said that he could not remember complaining about trenches in these assessment forms, although he believed he had raised an issue about underground pits. The plaintiff could also not recall which sites he worked on during the latter half of 2013, although he said that they were in the Gungahlin area. Nor could he remember who the civil contractors were working on those sites.

77.     Mr Shillington put to the plaintiff that he could have slid into trenches rather than jumping into them. The plaintiff said that the impact on landing was much the same.

78.     The plaintiff was taken to a medical questionnaire which he completed in March 2013 for his employment. That document commenced at page 172 of Exhibit P5. In

response to the question “Do you have any other health problems or symptoms that

you think are work-related?”, the plaintiff had answered “Yes”. In the space provided for more details the plaintiff had written “Sore back (lower) – not all the time – re- occurring.” In response to a question as to why he had not mentioned his right hip in

the questionnaire, the plaintiff said that he did not know that the pain was related to
his right hip until he saw Dr Burns and Dr Warfe.

79.     In relation to the worsening of symptoms in late 2013, the plaintiff agreed that this occurred as a gradual process. Mr Shillington put to the plaintiff that the worsening symptoms were not associated with any particular activity at work. The plaintiff demurred. The plaintiff said that the worsening symptoms were associated with getting in and out of trenches and working on the streetlights. The plaintiff was then shown a copy of the workers compensation claim form which he confirmed he had completed. It was dated 23 January 2014 (see pages 1 to 2, Exhibit D1). Mr

Shillington drew the plaintiff’s attention to the section under the heading “Injury

Details” where the plaintiff had written “Gradually worsening injury caused by

continuous work on uneven ground and awkward positions.” Mr Shillington pointed

out to the plaintiff that he had not referred to getting into and out of trenches in the
form. The plaintiff responded as follows:

Well, the way I explained I get in and out of (sic) is an awkward position, so that’s what I

meant by awkward position. Same with wiring the streetlights, the crouching.

The plaintiff confirmed that walking on soft ground caused symptoms.

80.    The plaintiff specifically identified an injury to his right hip in the workers

compensation claim form. Mr Shillington referred to the plaintiff’s earlier evidence as

to uncertainty as to the source of his lower back pain and questioned how it was that the plaintiff knew that his hip was the problem by the time of the workers compensation claim form. The plaintiff said that he had noticed that when he moved his leg, he suffered pain in the right hip. That caused him to identify the hip as the source of the pain.

81.     Mr Shillington then asked the plaintiff about the history which he had provided to Dr J Bodel. Dr Bodel is an orthopaedic surgeon who assessed the plaintiff on 12 February

2020 at the request of the plaintiff’s solicitors. Dr Bodel’s report commences at page

31 of Exhibit P6. Dr Bodel recorded the circumstances of the 2013 Injury as follows:

[The plaintiff] first suffered an injury at work on 9 December 2013. He developed back pain

and right hip and buttock pain while fitting “multiple street lights and pillars” at a location in

Canberra. He indicates that to do this work he had to squat down for fairly lengthy periods

of time to access a “junction box” which is at the bottom of the erected street light. The

electrical cable comes in from underground and he has to then make the connection to the street light which is erected in its completed form. The only thing that needs to be done is to make the connection to the electrical circuit.

He developed pain throughout that day as he had quite a large number to do.

82.     In response to a question as to why he had not mentioned difficulties in climbing in and out of trenches, the plaintiff said that he could not recall whether he had told Dr Bodel about the trenches. He agreed with Mr Shillington that he was doing his best to tell the doctor how the injury occurred.

83.    The plaintiff was then questioned about the history which he had given to Dr I Kelman. The plaintiff saw Dr Kelman for Allianz Insurance on 16 April 2014 (the report commences at page 23 of Exhibit D1). Indeed, it seems that Dr Kelman was the first specialist doctor the plaintiff attended for the purposes of the assessment of his claim. The plaintiff agreed with the proposition put by Mr Shillington that his memory of the relevant events was better in 2014 than it was in the present time. Mr Shillington then put to the plaintiff the history of injury as provided to Dr Kelman:

[The plaintiff] stated that he began to have discomfort in his right hip region and lower back towards the end of 2013. His pain was worse with driving and he considers that it may be the seat of his vehicle.

The plaintiff responded “Yes, I remember when I was getting that pain that

aggravated it so that would have been something I mentioned to Dr Kelman.”

84.     The following exchange then occurred:

MR SHILLINGTON: But I suggest to you that you are having problems with the seat in your vehicle and that was what you thought might have been causing your right hip pain. Do you agree with that?

PLAINTIFF No, not causing just aggravating?

MR SHILLINGTON: All right. Well you then go on to say that pain was aggravated by

activities of crouching, bending and climbing in and out of trenches?

PLAINTIFF:	Yes
MR SHILLINGTON:	Right, so I suggest to you that you told Dr Kelman that your injury or your problem was caused by driving but it was aggravated by those other activities. Do you agree with that?
PLAINTIFF:	No.
(Emphasis added.)

1. The reference to “you then go on to say (etc)” (emphasised above) was to the history

   recorded by Dr Kelman immediately following the words “seat of his vehicle.” It was in

   these terms:

   However the pain was aggravated by activities of crouching, bending, climbing in and out of trenches.

86.     Mr Shillington then asked the plaintiff about the history given to Dr Kelman of the plaintiff having reported his injury to his employer on 5 December 2013 after he had put his leg in a flexed and twisted position and suffered severe shooting pain into the anterior thigh. When asked about the event described by Dr Kelman, the plaintiff said:

I remember being in pain and I manipulated my leg because I was thinking where is this coming from and I got a sharp shooting pain in my right leg, down my leg, in my hip.

87.     The plaintiff agreed with Mr Shillington that prior to 5 December 2013 he had not complained to the defendant that he had problems with his hip or with climbing in and out of trenches, nor had he complained about working low down on the streetlights.

88.     The plaintiff also agreed that from about 2011, when he obtained his own camp stool, he did not have to squat down to do the streetlight work.

89.     Mr Shillington referred the plaintiff to a consultation with Dr P Warfe on 16 January 2014 in which the plaintiff was recorded as wondering if his hips were misaligned, or whether his pants were too tight. The plaintiff could not recall the consultation, although he accepted that what was recorded by the doctor must have been part of the conversation at that time. Mr Shillingtom then referred to the note made by Dr

Warfe that the plaintiff was an electrician who was “driving +++”. The plaintiff agreed

that he was doing a lot of driving at that time. The following exchange then occurred:

MR SHILLINGTON: The reason you told Dr Warfe that was because you thought your

right hip…problem might have been to do with doing a lot of driving,

is that right?

PLAINTIFF:	No, it would have been as an aggravation that’s what I would have
suggested.

90.     The plaintiff said that he did tell Dr Warfe about his problems in climbing in and out of trenches.

91.     The plaintiff was also referred to the record of a consultation at the same practice (Aspen Medical) on 8 January 2014 with Dr Horsley. The plaintiff agreed that he had told Dr Horsley of a 4 week history of pain originating in the hip and radiating down the front of his leg to his knee. The plaintiff agreed that he must have said that the pain was sharp and stabbing, and that it was variable. He did not agree with the record that he had some pain-free days. He agreed that he had told the doctor that particular positions made the pain worse and that there was no history of trauma. Mr Shillington referred to the note by Dr Horsley that the plan was for the plaintiff not to work in trenches. The plaintiff was unable to recall seeing Dr Horsley.

92.     Nor was the plaintiff able to recall seeking Dr Suthayakhom at the same practice on 23 January 2014. The plaintiff did however agree that he must have told Dr Suthayakhom that driving was the activity which most aggravated his condition if symptoms were present.

1. Mr Shillington directly challenged the plaintiff’s evidence as to the apparent cause of

   his symptoms. This occurred in the following exchange:

   MR SHILLINGTON: Seven years ago in the several months leading up to December

   2013, you were doing lots of physical tasks at work, weren’t you?

PLAINTIFF:  Yes.

MR SHILLINGTON: And they included walking on uneven ground, carrying tools, for example. You were driving with a van which you had a problem with the seat. Is that right?

PLAINTIFF:  Well, it made my hip have more pain.

MR SHILLINGTON: Right and you were doing lots of activities involving bending,

squatting and sitting. Isn’t that right?

PLAINTIFF:  Yes.

MR SHILLINGTON: And pulling cables?

PLAINTIFF:	Yes.
MR SHILLINGTON:	You agree with that and carrying tools?
PLAINTIFF:	Yes.
MR SHILLINGTON:	And you say that the pain symptoms came on gradually?
PLAINTIFF:	M’mm.

MR SHILLINGTON: And I suggest to you that you are unable to identify any particular activity that caused the problems with your right hip in the several months leading up to December 2013. Do you agree with that?

PLAINTIFF:  No, because I had identified that the pillars, the trenches and the streetlights was the majority of my work and gave me the biggest pain increases.

94.     Mr Shillington confirmed with the plaintiff that he returned to full, unrestricted duties in February 2015 and that he did not require assistance from Tegan with the family domestic duties from that time. The plaintiff was challenged about his estimate of 10

hours per week for Tegan’s assistance, particularly prior to the surgery on 21 July

2014. However, he did not resile from that estimate.

95.     The plaintiff was then questioned about the 2017 Injury. Mr Shillington suggested that one reason why a lifting mechanism could not be used to remove the switchboard was that the site was electrically live. The plaintiff disagreed, he said that he and his fellow workers were using equipment in that area while it was live. The plaintiff did agree that the roof was low and that it would not have been possible to use a crane. The plaintiff maintained that a device such as an engine crane (an example of which is at Exhibit P7) could have been used. However, there was no such machine available at the Canberra Airport site. Indeed, the defendant did not possess such a machine at that time.

96.     Mr Shillington asked the plaintiff why he and the team at the Canberra Airport did not cease work until they worked out a safe way of moving the switchboards. The plaintiff said that it did not occur to them that the system of work which they were using was unsafe because that was the way they always did that task.

97.     The plaintiff said that he suffered the excruciating lower back pain halfway through

the lift. He said to his co-workers (whom he named) “Oh, that hurt my back”. Mr

Shillington asked the plaintiff whether he filled out a workers compensation claim form at that time. The plaintiff said that he had not done so because he thought that he had just strained his back.

98.     Mr Shillington put to the plaintiff that he had told Dr Tsai that he had hurt his back lifting a heavy cable. The plaintiff denied that. He said that lifting cables was part of the work that day. The injury had occurred mid-morning. Thereafter, the plaintiff said, he did not continue with his full normal duties, although he remained working until the required finishing time. He did not seek medical treatment after work.

99.     Mr Shillington asked the plaintiff whether he had injured his back the next day when he lifted up his daughter. The plaintiff said that he felt the same sort of pain and in the same area when he lifted his daughter. He agreed that the pain was excruciating and that he had to sit down for a couple of hours after that episode. Mr Shillington asked

the plaintiff if he had felt a “pop” in his back when he was lifting his daughter. The plaintiff responded “No, it’s just the same pain as the day before.” He denied the

proposition that he did not complete a workers compensation claim at that stage because he thought that the injury was suffered while lifting his daughter. The plaintiff explained that he did not put in such a claim until 16 January 2018 because he was

on leave and he thought his symptoms would “gradually get better”.

100.  The plaintiff was then cross-examined on medical records relating to the back injury. The first was a history recorded by Dr Shanmugam. The history recorded by Dr Shanmugam on 30 November 2018 included the following:

[The plaintiff] reports sustaining back injury whilst lifting heavy items on 16/12/2017 mainly transformers. Was lifting daughter the next day 17/12/2017 - felt a pop to lower back spine with excruciating pain to low back region. Has had pain for a full month. [History of] previous back pain issues before hurting back on 16/12/2017.

When that was put to him, the plaintiff took issue with the use of the word

“transformers”. He thought that the doctor had misunderstood his explanation. The

plaintiff confirmed that he was lifting a switchboard when he suffered the injury. He

also denied that the “excruciating pain” had first come on when he was lifting his
daughter. He said that he felt “another excruciating pain” on 17 December 2017.

101.  Mr Shillington also took the plaintiff to notes made by Ms M Dennis, exercise physiologist. The plaintiff agreed that at the first consultation on 18 January 2018 he had told Ms Dennis that he was attending her because he had suffered acute back pain against a background of chronic pain. Mr Shillington put to the plaintiff the following note made by Ms Dennis:

Soreness end of last year one week.

Slowly accumulated.

Always gets a sore back.

The plaintiff did not understand what Ms Dennis intended to convey by the first entry. The plaintiff denied that he told Ms Dennis that the pain in his back had come on over 1 week. He said that the reference to always getting a sore back was to the situation since the back injury on 16 December 2017.

102.  The plaintiff was also asked about a further note in the 18 January 2018 entry. That note read:

Woke up one day + was sore.
At work lifting lots of things at work.
Following day lifted daughter up and felt back grab/pop and dropped him. Immediate pain.
About 17/12/17

Mr Shillington suggested to the plaintiff that he had told Ms Dennis that while he may have had some previous back pain at work lifting lots of things the immediate, excruciating pain only came on when he was lifting his daughter on 17 December 2017. The plaintiff denied that proposition.

103. Towards the end of the entry the following appeared:

Duties: lifting cables, installing mini pillars, trenches, ladders. + 15kg.

Back hasn’t stopped doing work just hurts.

Usually brought on by bending + digging

The plaintiff was again unable to shed light on the reference to the duties he previously performed. He did not agree with the suggestion that his back pain did not stop him from doing his work.

104.  On 22 February 2019, the plaintiff attended Dr Sabetghadam, occupational physician, at the request of Allianz Insurance. Mr Shillington put the first paragraph of the history recorded by Dr Sabetghadam to the plaintiff. That paragraph was in the following terms:

[The plaintiff] reported that he felt lower back pain on 16.12.2017 while he was installing large transformers at the workplace. He remembered that that was the last day of work before the Christmas holidays. He stated that the pain gradually deteriorated over the day. He believed lifting heavy objects at the workplace caused his lower back pain. However, he could not pinpoint any specific incident.

105.  The plaintiff corrected the reference to transformers (they were switchboards) and denied that he had had not pinpointed any specific incident. He repeated that he had felt a sharp pain when lifting a switchboard. He agreed that he had previously lifted heavy cables on that day. He was unable to say whether lifting the heavy cables might have contributed to the injury he suffered when he lifted the switchboard.

106.  Mr Shillington then referred the plaintiff to the injury report the plaintiff had completed on 16 January 2018 for his employer. That report contained the following under the

heading “Summary”: “Strained back while lifting cables/installing switchboard.” The

plaintiff said that those words provided the description of the job that he and the others were doing at the Canberra Airport on 16 December 2017. Mr Shillington then suggested to the plaintiff that the reason he wrote that entry was that he had strained his back over a gradual process during the day while lifting cables and installing the switchboard. The plaintiff disagreed with that proposition, however he did agree that the work he did prior to the switchboard incident would have led to muscular strain.

107.  The plaintiff was then taken to the entry under the heading “Detailed Description”.

That stated:

Working Saturday, before i went on leave. Strained back as mentioned, gradually got worse over the break through normal everyday activities.

I did not enter a Guardian report straight away, as I was on leave the next day and thought it was just a slight strain that would promptly recover.

The plaintiff explained that he was not able to undertake normal everyday activities over the Christmas break. He was very restricted. When he did attempt to undertake such activities, the plaintiff said that it made his pain worse. He said that he had used

the words “slight strain” because he did not know what was happening with his back

and he hoped that it was indeed a slight strain.

108.  On 15 February 2018, the plaintiff completed a workers compensation form in relation

to his back injury. In response to the question “How did the injury occur?” The plaintiff answered, “Lifting switchboards & cables @ work”. The plaintiff said that that was the

work that he was doing on the day of his injury. He provided a similar response in

relation to the question on the form “What were you doing when the injury

happened?”. The answer which he provided on the form was “Lifting & moving heavy

items, sometimes in awkward positions”. The plaintiff agreed that lifting cables that

day injured or aggravated his back. He also agreed that he returned to normal duties
in the January of 2018.

109.  The attendance on Ms Dennis on 18 January 2018 referred to at paragraph [101] above was the commencement of a course of rehabilitation with Elite. The plaintiff continued that course of rehabilitation during 2018. As well as Ms Dennis, the plaintiff saw exercise physiologist Mr L Slater from time to time. The plaintiff attended Mr

Slater on 20 March 2018. Mr Slaters’ record of that attendance included the comment “back pain fine– nerve pain worse”. The plaintiff accepted the reference to nerve pain,

but did not accept that the description of the state of his back at that time was
accurate.

110.  The plaintiff saw Mr Slater again on 26 March 2018. He again disagreed with the

accuracy of the note suggesting that his back pain had “almost all gone”. Mr

Shillington then referred the plaintiff to the note made by Mr Slater on 18 May 2018

that the plaintiff’s “back pain is back”. The plaintiff said that the back pain was always

there. The plaintiff said that if he had nerve pain, it meant that he also had back pain. He also said that the nerve pain was a stabbing pain which went through his left hip down the buttocks through the thigh to the back of the knee, then behind the shin to the ankle.

111.  Part of the program devised by Mr Slater included working with weights at a gym. The plaintiff said that he only lifted the weights recommended by Mr Slater. Mr Shillington asked the plaintiff if he was performing activities that required him to squat 80 kg. The plaintiff did not agree that he was lifting as much as that, although he was unable to remember the weights which he was lifting at that time. Mr Shillington put to the plaintiff that he suffered a flareup in his back pain while squatting 80 kg in about September 2018. The plaintiff reiterated that he was just performing the program given to him by Mr Slater.

112.  On 21 September 2018, the plaintiff attended a podiatrist who diagnosed a leg length

discrepancy. He provided inserts for the plaintiff’s shoes with an 8 mm difference in

an attempt to moderate the effects of the discrepancy.

113.  Mr Shillington asked the plaintiff whether he had had a problem with his left hip before 15 October 2018. The plaintiff said that he was unsure because he had the lower

back pain going down the left side. Mr Shillington then took the plaintiff to Mr Slater’s

note dated 11 October 2018. That note reads:

phone call: Nici Travers
Dr believes pain is coming from hip? previous injury

referred to podiatrist- footcare

had glucose injections-Dr Praet,

will try with Megan [Ms Dennis] next week- Nici would like assessment on hip to see if this
is the cause

Nici is unsure of what is currently going on- no emails or reports from GP or podiatrist sent to elite

114.  Mr Shillington asked the plaintiff if he had attended on Mr Slater on 11 October 2018. The plaintiff agreed that he had, although he had no recollection of any phone call to Ms Travers (Ms Travers was the officer from Allianz Insurance who was dealing with

the plaintiff’s workers compensation claim in relation to the 2017 Injury). In response

to the suggestion that the entry indicated that the plaintiff had left hip symptoms on 11 October 2018, the plaintiff said that he was questioning it because of the lower back pain. In response to the question as to whether the plaintiff was having any difficulties before the incident on the switchboard at the ANU on 15 October 2018, the plaintiff said that he was unsure, but that in that incident he had felt a sharp pain. He was also unsure as to whether he had been suffering left hip pain for a few weeks before 15 October 2018.

115.  The plaintiff attended on Ms Dennis on 17 October 2018. He was asked a series of

questions in relation to Ms Dennis’ note of that attendance. The note relevantly reads:

Reason for Contact: Left pelvic dysfunction

Left side acute on chronic LBP ?L5/S1 facet + L5 nerve related

Subjective:

Left-sided hip pain for the last few weeks. Acue (sic) pain on Sunday

Put lift in shoes from podiatrist on right foot and now left hip is more sore.

Feels the same as right hip was (labral repair in 2014)

Nerve pain kept going on - 6-8 weeks to settle low back pain.

Dr Burns said left hip may go in the future.

Going to book in with Al Burns on 8/11/18 - getting an xray prior to that.

Now gets lateral hip pain.

Deep hip pain.

Pain not referring down into the knee.

Doesn’t feel as “nervy”

Feels more like a deep sharp stabbing pain.

116.  The plaintiff was unable to remember any incident on the Sunday, 14 October 2018. He believed that he had told Ms Dennis about the incident at the ANU on the Monday. The plaintiff said that he did not recall Dr Burns warning him about his left hip. In relation to having left hip pain for weeks before 15 October 2018, the plaintiff was unsure because he was suffering lower back pain in the same area.

117.  Mr Shillington also took the plaintiff to a handwritten form completed on 15 August 2019 by Dr Shanmugam for the purposes of a disability insurance policy. In that form,

the doctor recorded the history in relation to the plaintiff’s left hip. The doctor recorded

that the plaintiff had experienced left hip pain since early October 2018 due to heavy lifting at work. The plaintiff again confirmed that he was unsure of the source of the left hip pain. He thought that it was related to his lower back condition. Dr

Shanmugam had commented “[The plaintiff] is unable to provide any details of

specific injury as a contributing factor to the left hip pain.” The plaintiff did not agree

with that comment.

118.  On 19 December 2018, the plaintiff completed a workers compensation claim form in relation to the left hip injury. In response to the question as to how the injury occurred,

the plaintiff answered, “While working in trenches & on ladders, pulling & terminating heavy cables onto switchboards.” The plaintiff explained that he was describing the

work which he was doing on the day he suffered the injury.

119.  The next question on the form was: “What were you doing when the injury happened? (e.g. slipped when climbing a ladder).” The plaintiff’s answer on the form was “Climbing, squatting, pulling, pushing, holding. Awkward positions.” Mr Shillington put

each of those activities to the plaintiff who said that the injury had not occurred while he was climbing or pushing or pulling, although they were all activities which he was doing that day. He was squatting, holding something and in an awkward position when the injury occurred. The plaintiff denied that his answer on the form suggested that he suffered a gradual injury while performing those activities during the course of the day.

120.  The plaintiff was then taken to a letter dated 30 January 2020 sent to Mr M Lawrance,

ergonomist, by the plaintiff’s solicitor. The events leading to the 2018 Injury were

summarised in the letter as follows:

[The plaintiff] was working on the site at the Australian National University installing a new switchboard alongside with a colleague. The switchboard measured approximately 2.5m tall, 0.7m wide and 0.5m deep. [The plaintiff] used a ladder to climb up the side of the switchboard. While he was leaning in, he experienced a sudden sharp pain in his left hip.

The plaintiff confirmed that that description was correct.

121.  Mr Shillington then took the plaintiff to a comment in the report of Mr Lawrance dated 17 February 2020 in which the plaintiff was said to have described the onset of the pain in his left hip as being, in part, connected to his right hip condition and the resulting compensatory movements and actions adopted to avoid using his right hip. The plaintiff did not agree that he had told Mr Lawrance that. He thought he would have told Mr Lawrance that he might have been moving differently because of his back pain, not right hip pain.

122.  The plaintiff was then referred to the paragraph in Dr Sabetghadam’s report

summarising the history of the 2018 Injury. That paragraph was in the following terms:

[The plaintiff] reported that almost early October 2018, he suffered from gradual onset of left hip pain. He believed the left hip pain developed following lifting heavy objects at the workplace. He did not report any specific incident.

When asked if he agreed with the history recorded by the doctor, the plaintiff repeated that he was getting pain in his left hip, but that he was not sure whether that was coming from his back. He could not recall telling the doctor that the pain was related to heavy lifting. He said he found it difficult communicating with the doctor. He disagreed with the assertion that he did not tell the doctor about any specific incident causing left hip pain.

123.  Mr Shillington then questioned the plaintiff about the history recorded by Dr Shanmugam at a consultation on 30 July 2019. That history was consistent with the history recorded by Dr Sabetghadam. The plaintiff said that he did not know where the pain was coming from. Mr Shillington then put to the plaintiff the note made

by Dr Shanmugam that the plaintiff “initially thought that the left hip pains are referred

pain from the back, but realised that they are separate issues due to different

characteristics of pain.” The plaintiff said that he thought that the comment had come

from a report from Ms Dennis. He could not remember commenting in those terms to
Dr Shanmugam.

124.  Reference was then made to the note made by Dr Shanmugam that the back pain

had “flared up two months ago when [the plaintiff] felt pain whilst doing workups in

gym with 80 kg of weightlifting ...”. The plaintiff agreed that he had told the doctor that

his pain had increased with the exercises he was doing, however he did not recall referring to lifting 80 kg. He also believed that he had told Dr Shanmugam that he had hurt his left hip leaning into a switchboard.

125.  Mr Shillington then put to the plaintiff notes of a meeting which he attended with Ms Ettinger and supervisors from the defendant. The plaintiff agreed with most of what was put to him, although again he did not recall lifting 80 kg. He also demurred from the suggestion that his nerve pain had gone away at any time since the 2017 Injury. In relation to the left hip injury, Mr Shillington put to the plaintiff that he did not mention the incident at the ANU site, notwithstanding that one of the supervisors at the meeting (Tom Mossop) had been present at the ANU site on 15 October 2018. The plaintiff did not agree that he did not mention the incident. He could not specifically recall, however he said that would have mentioned it if he had been asked.

126.  The plaintiff confirmed that he kept working after 15 October 2018 until 8 November 2018.

The plaintiff – re-examination

127.  The plaintiff said that the 1.8 m ladders provided by the defendant for his work were made of fibreglass, because they were non-conductive. The fibreglass ladders were heavier than aluminium ladders. They weighted 10 to 15 kg.

128.  In relation to the lifting of cables on 16 December 2017 at the Canberra Airport (before the lifting of the switchboard), the plaintiff said that he had not felt any pain in his back while doing the cable work. The plaintiff said that he had felt sharp pain when he lifted the switchboard.

129.  As to the reference to weightlifting, the plaintiff said that the only such exercise he did was that prescribed by the rehabilitation providers.

130.  The plaintiff was then taken back to the workers compensation claim form for the

2018 Injury and specifically his answer to the question “What were you doing when the injury happened?”. The plaintiff explained by reference to the whole task of

connecting the switchboards together that it did in fact involve “Climbing, squatting,
pulling, pushing, holding, awkward positions.”

131.  In response to a question from the Bench, the plaintiff said that he considered that having regard to the result of the operations on both hips if it was not for his back condition he could have returned to his normal duties as an electrician.

Tegan Bailie

132.  Ms Bailie confirmed that she and the plaintiff had been in a relationship since 2006. She was an APS 5 in the Commonwealth public service. She described the plaintiff, prior to 2013, as a motivated and socially outgoing person. He was supportive, caring and fun to be around. Ms Bailie said that the plaintiff was physically fit and able and their interpersonal relationship was good. Ms Bailie said that she and the plaintiff

shared the family’s domestic responsibilities equally. At that time Ms Bailie was

playing representative Oztag and so she would be training and playing 4 nights a
week.

133.  In the latter part of 2013, Ms Bailie noticed that the plaintiff was “slowing down” with

the performance of the domestic tasks. She said that the plaintiff started complaining

of being in pain. Her recollection was that it was in his “lower left (sic) and back”. As a

result, from that time to his operation in July 2014, Ms Bailie estimated that she was doing at least 8 hours per week of extra domestic work which the plaintiff was not able to do.

134.  During the 3 months after the operation Ms Bailie said that the burden on her increased. She was spending over 10 hours per week undertaking domestic responsibilities during that time. By the time the plaintiff returned to work on light duties he had increased his contribution nearly back to what it had been before his injury. Ms Bailie said that during the period from when the plaintiff returned to work until he went on to full duties at the beginning of February 2015, she was doing about 2 hours additional domestic work per week. After than it returned to an approximately equal contribution until the 2017 Injury.

135.  Ms Bailie recalled that on 16 December 2017 when the plaintiff came home from work, he said that he had done something to his back and was very concerned about it. He told her that he had been lifting something at work and he felt it pull.

136.  Ms Bailie said that during the Christmas break the plaintiff seemed to be in a lot of pain. He told her he was suffering pain in his lower back. She said that she thought it must be more serious than initially thought because he was not someone who usually complained about pain. The plaintiff spent a great deal of time in bed or resting on the

couch – to the extent that Ms Bailie described the period as being a “less than
average Christmas.”

137.  After the plaintiff returned to work in January 2018, Ms Bailie said that he was coming home and going straight to bed. His contribution to the family domestic duties

dropped away. Also, the plaintiff’s mood deteriorated. Ms Bailie said that he was

“hard to be around”. He had no patience and avoided company. Their relationship

had broken down and, Ms Bailie moved into a different bedroom in the latter part of
2019.

138.  As a consequence of the reduction in the plaintiff’s domestic contribution Ms Bailie

was back to doing over 10 hours additional domestic work per week.

139.  Under cross-examination, Ms Bailie conceded that she had not kept records of the additional work she was doing. However, she did not agree that she was just guessing. She believed that her estimation was correct.

140.  In relation to the incident on 17 December 2017 when the plaintiff hurt his back lifting his daughter, Ms Bailie said that she was not present, although the plaintiff had told her that he had felt pain when lifting their daughter.

The expert evidence

Mr M Lawrance

141.  Mr Lawrance is an occupational therapist and ergonomist. His evidence was

contained in a report to the plaintiff’s solicitors dated 17 February 2020. He was not

cross-examined.

142.  The descriptions given of the work being done by the plaintiff in the lead up to each injury was broadly consistent with the descriptions given by the plaintiff in his evidence. However, the reference to the plaintiff having to squat or kneel to reach into a low doorway (300 mm above ground level) in relation to the 2018 Injury (see

page 73 of Exhibit P6) is not consistent with the plaintiff’s account in his testimony.

143.  Mr Lawrance considered that each of the tasks claimed to have contributed to the injuries suffered by the plaintiff met the definition of hazardous manual tasks under the Work Health and Safety (Hazardous Manual Tasks) Code of Practice 2011 (ACT). Indeed, he saw some additional tasks (such as the plaintiff having to lift and carry a 15 to 20 kg tool bag) as being hazardous. In each case, Mr Lawrance expressed the opinion that the work being done by the plaintiff created reasonably foreseeable manual task hazards. He opined that:

(1)

In relation to the 2013 Injury, reasonably practical risk controls included:

(i)	Providing access to the trenches by ladder, steps or earthen ramps; and,
(ii)	Sourcing streetlights with access panels higher in the poles.

(2)

In relation to the 2017 Injury, the plaintiff and his team should have been
provided with suitable lifting equipment.

(3)

In relation to the 2018 Injury, reasonably practical risk controls included:

(i)	Installing items in the switchboard before it was put in place to avoid the need for a person to work awkwardly from a ladder or the top of the switchboard itself; and,
(ii)	Providing a suitable work platform such as a mobile scaffold or a platform ladder.

Dr M Pell

144.  Dr Pell is a neurosurgeon. He was qualified on behalf of the plaintiff. He provided a report dated 13 January 2020, and was cross-examined as to his opinion.

145.  Dr Pell assessed the plaintiff in consultation on 17 December 2019. He obtained a

history largely consistent with the plaintiff’s evidence, although he did note that the

plaintiff said that his back was getting sore when he was moving cables before the switchboard incident in December 2017. Nevertheless, Dr Pell was of the view that the plaintiff suffered a L5/S1 disc prolapse in the work he was doing on 16 December 2017 which was aggravated when he lifted his daughter the next day. In relation to the 2018 Injury (the doctor recorded it as occurring on 18 October), he thought that the plaintiff had suffered a labral tear in the left hip on that occasion.

146. Dr Pell expressed the following conclusions:

10   Prognosis;

[The plaintiff] has ongoing low back pain, left hip and left L5.S1 disc protrusion and spondylolisthesis. This has not improved with extensive physiotherapy or peri-radicular injection. He remains on light duties. He has been recommended L4 to S1 fusion. Prognosis will be of ongoing pain. He will not be able to return to full duties as an electrician and will require retraining. If he underwent surgery there may be improvement with him returning to pre-injury duties.

10 (sic) Details of any recommendations you would make for further
medical/psychological assessment, tests of treat; and

[The plaintiff] should pursue surgery for his L5.S1 disc prolapse and spondylolisthesis. He would require up to date imaging and I would recommend progress MRI scan of the lumbar spine, as well as Isotope bone scan to see the extent of disco-vertebral disease at the L4.5 level. Plain x-rays flexion and extension views would show whether there was instability at the segments involved. Previous MRI scan of the lumbar spine has shown broad based

disc bulge at the L4.5 level and hence Dr Tsai’s recommendation would include this in the

fusion construct. If there is no discovertebral disease on Isotope bone scan, there may be an indication to do L5.S1 fusion only. [The plaintiff] is aware of the risks of accelerated segmental degeneration and the possible need for further fusion procedures in the future.

If [the plaintiff] did not proceed with fusion surgery, as he has declined to date, then he would require retraining in a lighter occupation through TAFE.

147.  Under cross-examination, Dr Pell said that the spondylolisthesis from which the plaintiff suffered could have been congenital, or could have come on during early teenage or childhood years. Dr Pell said that spondylolisthesis was a defect which could be asymptomatic, although it does predispose the sufferer to discal injury. This was particularly so in a person performing hard physical work.

148.  In relation to the surgery he recommended, Dr Pell saw the fusion as being necessary to stabilize the spondylolisthesis. In the absence of that condition, the appropriate surgical procedure would have been a discectomy.

149.  Mr Shillington asked the doctor to assume a history of pain with the lifting of cables and a switchboard on 16 December 2018 which led the plaintiff to believe that he had a slight strain of the back followed by an episode of intense pain the following day when he picked up his daughter. On that basis, Mr Shillington suggested that the disc prolapse was probably caused by the child lifting incident. Dr Pell did not agree. He considered that if there was pain before, the lifting of the child would have been a progression of the disc prolapse.

150.  Mr Shillington put to Dr Pell that if the plaintiff had significant back symptoms, he would have been unlikely to perform a squat lifting 80 kg. Dr Pell said that he might well be able to perform such a lift, but it might well further aggravate his injury.

151.  In relation to the left hip pain, Dr Pell saw the plaintiff’s complaint of pain into the hip

and down the left leg before 15 October 2018 as pain radiating down the sciatic
nerve, rather than direct hip pain.

Dr L Le Leu

152.  Dr L Le Leu, occupational physician, was also qualified on behalf of the plaintiff. His opinion was set out in his report dated 6 February 2020, based on an examination which occurred on 30 January 2020.

153.  In relation to the 2013 Injury, Dr Le Leu obtained a history of a stabbing pain to the right hip while the plaintiff was getting in and out of trenches. Dr Le Leu recorded the

plaintiff as having said that he was also getting what felt like “right-sided lower back pain, but concentrated in the right buttock”. At one point the plaintiff was said to have

lifted his right leg and suffered an intense stabbing pain over the right hip. This
occurred on the same date that he reported to the 2013 Injury.

154.  As to the 2017 Injury, the doctor recorded a history broadly consistent with the

plaintiff’s evidence, although the switchboard was said to have weighed 500 to 600

kg.

155.  Dr Le Leu recorded that the plaintiff had informed him that about a month before the

2018 Injury he had told his physiotherapist that he thought that his left hip was “going”

since it was producing symptoms similar to those which he had suffered with his right
hip. However, the physiotherapist thought that the problem was not with the hip.

156.  The history otherwise recorded in relation to the 2018 Injury was again broadly

consistent with the plaintiff’s evidence.

157.  In response to a question in the qualifying letter as to whether the plaintiff suffered from any pre-existing conditions, Dr Le Leu said that it was quite possible that the plaintiff had pre-existing abnormality of both hips, although there was no documentation of that or evidence of relevant symptoms. The radiology suggested that the plaintiff did have spinal abnormality before the subject injury.

158.  Dr Le Leu diagnosed the plaintiff as having suffered from bilateral hip impingement with labral tears, discogenic low back pain with variable radiation to the left leg and contribution to back pain from exacerbation of probably pre-existing spondylolisthesis plus musculoligamentous injury.

159. In relation to the prognosis the doctor said:

The prognosis for the hips is for little change now that he has had appropriate surgery although the left-sided symptoms may improve with time to about the level of the right side since he had his operation in around June 2019. The prognosis for the lower back is for ongoing symptoms at or near the current level for the foreseeable future.

160.  In relation to treatment of the back condition, Dr Le Leu suggested that the plaintiff should consult with Dr Tsai in relation to a possible surgical solution. However, he did

comment: “The results could not be guaranteed anyway but would be even less

certain in the presence of pre-existing spinal abnormality.”

161.  Dr Le Leu considered that the plaintiff should permanently avoid work of a moderately to highly physical nature. He saw him as being capable of working in an administrative area using a sit/stand desk arrangement to allow frequent changes in posture. He also thought that the plaintiff could perform domestic duties, but that he would have difficulty with duties involving significant lifting, carrying, pushing and pulling. Dr Le Leu thought that the plaintiff would require 2 hours domestic assistance each week and an average of 3 hours garden assistance each month. De Le Leu considered that that need was likely to continue for the foreseeable future unless there is an unexpected improvement in back symptoms (possibly due to treatment). The need for domestic assistance would have doubled in the 6 to 8 weeks after the hip operation.

162.  Mr Shillington put to Dr Le Leu the history that the plaintiff had suffered lower back and right hip symptoms extending back to 2011, and right hip symptoms from time to time associated with his work, including particularly walking on uneven ground and driving his vehicle. Mr Shillington asked whether in the light of that more complete history, it was possible to say whether the injury suffered in December 2013 was referable to getting in and out of trenches. Dr Le Leu responded:

Well it would be difficult to associate the onset and ongoing symptoms before the incident obviously with the incident but it appears he was doing lots of other heavy work before the incident which may have been contributory.

163.  In relation to the 2017 Injury Mr Shillington confirmed with the doctor that he had not taken a history of the plaintiff lifting his daughter on 17 December 2017. Mr Shillington then put to the doctor that after the child lifting incident the fact that the plaintiff said that he had intense pain or a pop in his back and had to sit down for a couple of hours indicated a more severe injury than the injury sustained on the previous day where the plaintiff was able to continue working. Dr Le Leu said that the fact that the plaintiff might have worsened the injury lifting his daughter did not deny the causation of the injury on 16 December 2017.

164.  Mr Shillington asked Dr Le Leu whether he was aware that the plaintiff had suffered left hip symptoms before the 2018 Injury. The doctor pointed to the paragraph in his

report referring to the plaintiff’s discussion with his physiotherapist about a month

before that date. After further questioning the doctor agreed that the symptoms which
had come on a month beforehand were worsened by the 15 October 2018 Injury.

299.  I was impressed by the evidence of Ms Bailie on this issue (see paragraphs [132]- [140]). Her estimations appeared to me to be considered and reasonable, and I accept them. The rate of $35 per hour was agreed between the parties as the appropriate rate for the calculation of damages under this head. Doing the best I can, I calculate this claim on the basis of 8 hours for 26 weeks, 10 hours for 13 weeks and 2 hours for 15 weeks. On this basis, I would award $14,000. I was informed that the figure of $35 per week has been in place for many years now as an accepted figure for damages under this head. On that basis, it seems to me that it is appropriate to award interest at the rate claimed by the plaintiff. I would allow 3% for 7 years as claimed resulting in the figure of $2,940.

300. No claim was made for future damages under this head.

Loss of Superannuation

301.  The plaintiff claimed a loss of $3,474 based on 11.5% of the past loss of earning capacity figure. The defendant submitted that the figure of $3,322 would be appropriate based on 11%. Having regard to the date of the loss I would award the figure suggested by the defendant. The plaintiff claimed interest on this award. The defendant submitted that interest should not be awarded. I was not referred to any authority on the issue other than the decision of Johnson referred to at paragraph [198] above.

302.  The conventional method of calculating the value of loss of superannuation contributions of calculating 11% of the past loss of earning capacity figure represents something of a short cut compromise to avoid the need for complicated actuarial analysis. I see considerable value in that approach. However, so far as I can establish, the adoption of this percentage does not take account of the fact that in a case such as this the loss suffered by the plaintiff occurred many years in the past.

On that basis it seems to me appropriate to allow interest as claimed – that is at the

rate of 3% for 7 years. I would therefore allow $698.

Summary

303.  In summary, had the plaintiff succeeding in his claim in relation to the 2013 Injury I would have awarded him damages as follows:

Head of Damage Amount

General Damages $60,000.00

Interest $7,000.00

Out of Pocket Expenses

Past $27,356.00

Interest

Future

Loss of Earning Capacity

Past $30,206.00

Interest Future

Domestic

Care/Assistance

Past	$14,000.00
Interest	$2,940.00
Future

Loss of Superannuation $3,322.00

Interest $698.00

Fox v Wood $12,564.00

Total $158,086.00

Damages – The 2017 Injury

General damages and interest

304.  It is clear that the injury to the plaintiff’s lower back has had major consequences for

his life. It is this injury which, given the largely successful treatment of his hip conditions, has terminated his career as an electrician. It has left him with a significant degree of pain and disability, which he will likely experience for the rest of his life.

While I accept that the plaintiff’s pre-existing spondylolisthesis may have predisposed

the plaintiff to injury, particularly given the heavy nature of the work he was doing, there is no way of assessing with confidence when, or even if, such an injury might have occurred.

305.  I also take account of the disruption in the plaintiff’s home life and in his relationship

with Ms Bailie. Although Mr Sutton did not diagnose a frank psychological disorder, it was clear from the way in which both the plaintiff and Ms Bailie gave their evidence

that the plaintiff’s 2017 and 2018 injuries have caused them enormous stress and

anguish. That has resulted in the break-down of the physical and emotional
relationships between them.

306.  The plaintiff submitted that the figure of $200,000 was appropriate for this injury, whereas the defendant argued that $100,000 would be sufficient. I am not persuaded that either of these is appropriate. I am conscious that there is a degree of overlap between the effects on the plaintiff of the 2017 and 2018 injuries. Taking due account of that overlap I award general damages of $140,000 for the 2017 Injury. Of that I assess $70,0000 for the past and $70,000 for the future. I allow interest at 2% for 2.85 years on the past amount, which I round up to $4,000.

Past out of pocket expenses

307.  That figure was agreed in the sum of $49,807. I will round this up to $49,840 to account for a small amount of interest on the $400 which was not covered by workers compensation payments.

Future out of pocket expenses

308.  The plaintiff claimed $102,640 on the arithmetical basis set out at footnote 24 to the

plaintiff’s written submissions. The defendant submitted that $15,000 would be an

appropriate award under this head. I am not persuaded that damages here should be

awarded on the arithmetical basis suggested. While I accept that the plaintiff’s back

condition will require regular medical treatment by GPs with intermittent periods of physiotherapy type treatment, I do not consider that this can be converted into a straightforward arithmetical calculation. I would allow the sessions with Dr English as claimed, and I would allow a buffer for the medications which the plaintiff will require in the future. (The evidence is, again, not sufficient for an arithmetical calculation.)

309.  The assessment of the claim for the operation on the plaintiff’s low back is

problematic. There is a reference in the Statement of Particulars to a cost of over $80,000 based on the contents of a publication which was attached to the Statement of Particulars as filed. This was not the subject of evidence and I treat the claim as just that. The only evidence as to the cost of the proposed surgery was that of Dr Pell who estimated the cost to be $25,000.

310.  It is also not possible to be definite as to when this surgery will be required. The plaintiff made it clear that he would only undergo spinal surgery as a last resort. This is understandable having regard to the warnings he has been given about the potential consequences of a two level fusion from L4 to S1.

311.  Given the range of uncertainties here, it is not possible to assess these damages on a mathematical basis. I propose to award the sum of $45,000 by way of a buffer to

account for the plaintiff’s future medical needs, including the need for surgical

treatment.

Past loss of earning capacity damages and interest

312.  This was agreed in the sum of $98,476. The plaintiff claimed interest on the amount of $56,524 which was not covered by the workers compensation incapacity payments. Interest is claimed at the rate of 3% for 2.85 years in the amount of $4,833. I allow this claim.

Fox v Wood component

313. This was agreed in the sum of $18,468.

Future loss of earning capacity

314.  The parties have agreed that the plaintiff would be earning, if he was working full hours and performing full duties, $2,113 per week net of tax, and that he is currently earning for 15 hours per week $680 net of tax. That results in a current loss of $1,433 net per week.

315.  The plaintiff has shown himself to be motivated and hard working in the past. I am confident that once the stresses and uncertainties of the litigation are in the past he will reassess his career and seek to retrain so that he can use his undoubted skills and natural abilities in administrative or supervisory work where he is not required to perform the heavy physical duties which characterised his work as an electrician.

316.  The plaintiff claimed damages under this head of $506,000 either on the basis as pleaded in the Statement of Particulars, or by reference to the alternative calculation at footnote 16 to his written submissions. That latter calculation assumes the need for 3 years out of the workforce to retrain and a further loss of 50% of his pre-injury earnings for 4 years thereafter.

317.  The defendant submitted that the plaintiff should be awarded a buffer of $100,000. I do note that the defendant would also allow a buffer of $50,000 for the 2018 Injury, although the plaintiff makes no claim for future loss of earning capacity damages in relation to that injury.

318.  I consider that the plaintiff should be allowed damages here on the basis that he will require 2 to 3 years to retrain and that there will thereafter be a lag before he returns to the level of his pre-accident earnings. Doing the best I can, I allow $300,000 to

cover the total loss during the period of the plaintiff’s retraining and a buffer of

$150,000 for his potential losses thereafter. I award total damages under this head of
$450,000.

Domestic care and assistance and interest

319.  The plaintiff claimed the sum of $37,765 for the past based on the need for assistance at the rate of 10 hours per week for the periods of 17 December 2017 to 15 October 2018, and then from 5 August 2019 to the present. The plaintiff submitted that the gap between October 2018 and August 2019 was the time during which it

was reasonable to attribute the plaintiff’s incapacity and need for assistance to the

2018 Injury.

320.  The defendant argued that $15,000 should be awarded under this head. However, I did not understand the defendant to disagree with the necessarily somewhat arbitrary allocation between the effects of the 2017 and 2018 injuries.

321.  Having regard to the evidence of Ms Bailie, I accept the approach advocated by the plaintiff and I award the amount of $37,765 accordingly. I also allow interest as claimed in the sum of $3,329.

322.  In relation to the future the plaintiff claimed $436,950 based on the proposition that the plaintiff will require 10 hours assistance for the rest of his life. However, the duration of the claim is then reduced to age 60 to account for the prospect that the

plaintiff’s pre-existing abnormality in the lower spine would have led to a need for

domestic assistance in any event. This claim was made at the rate of $45 per hour, which is the rate agreed between the parties in relation to future care and assistance.

323. The defendant submitted that a very modest buffer of $15,000 should be allowed.

324.  There is some attraction in the approach adopted by the plaintiff, having regard to the likelihood that the plaintiff will need some degree of assistance with the performance of heavier domestic tasks for the rest of his life. I also accept that there must be some discount for the risks that that need might well have arisen earlier than otherwise

would have been the case having regard to the plaintiff’s pre-existing back condition.

325.  However, I do not accept that the plaintiff will require 10 hours’ assistance on an ongoing basis. I note that Dr Le Leu assessed the plaintiff’s need at 2 hours per week

plus an allowance for gardening on a seasonal basis. While I accept that Ms Bailie

has been shouldering the burden of caring for the family’s domestic needs to the tune

of an extra 10 hours per week, I note that Olivia is now 7 years of age and Siena is 5 years of age. It may be expected that as the girls move into teenage years the need for domestic tasks to be performed for them will reduce. Assuming that the plaintiff and Ms Bailie are able to mend their relationship it might be expected that over time when the girls become independent and move out of home the couple might well move into a smaller dwelling requiring less by way of upkeep, cleaning and the like. The imponderables here rather mitigate against the calculation proposed on behalf of the plaintiff.

326.  I consider that the level of care required by the plaintiff will taper off over the next 10 years or so to something closer to the level assessed by Dr Le Leu. In that context, I propose to award damages for the future under this head by reference to the assumption that the plaintiff will require 5 hours per week for 10 years and thereafter a buffer based on the assumption that the plaintiff will require assistance at the rate of 2 to 4 hours per week to age 60.

327.  I calculate the first part of this approach as follows: 5hrs/wk x $45 x 452 = $101,700. The plaintiff is now 32 years of age. An award of 18 years at 3 hours per week at the rate of $45 would be $98,250. Allowing for deferral for 10 years leads to the following: $98,250 x 0.744 = $73,120. Having regard to all of the circumstances, it seems to me

that these figures could slightly undervalue the plaintiff’s future needs. Doing the best

I can to deal with the variables here, I award $200,000 to account for the risk that the plaintiff will need periods of slightly greater assistance in order to assist him in remaining full time in the workforce.

Loss of superannuation and interest

328.  The plaintiff claimed $11,325 for his past loss. This was based on 11.5% of the figure for past loss of earning capacity. Interest was claimed at 3% for 2.85 years. The defendant would allow past loss at the rate of 11% only.

329.  The figure of 11% of the past loss of earning capacity award has been accepted since the decision in Najdovski v Crnojlovic [2008] NSWCA 175; 72 NSWLR 728 (Najdovski) as being the appropriate way to assess damages for loss of superannuation. This avoids the more complicated calculations required to work out

the true value of 9% of a plaintiff’s gross loss, where 9% is the minimum required

employer contribution under the Superannuation Guarantee (Administration) Act 1992 (Cth). Of course, since Najdovski the minimum percentage figure has increased incrementally to the current figure of 9.5%. The plaintiff has provided no authority for the increase from 11 to 11.5%, and I have not been able to find any cases applying an increase to the 11% figure. However, it does seem to me that the increase in the statutory minimum in recent years does warrant a slight increase to the conventional figure. I therefore award damages for loss of superannuation in the sum of $11,325. For the reason given in paragraph [302] above, I award interest on that figure as claimed, in the sum of $968.

330.  In relation to his future loss, the plaintiff claimed 13% of the amount awarded for future loss of earning capacity. The defendant contended that these damages should be calculated using the figure of 11%. The plaintiff argued that the higher figure should be used having regard to the proposed sequence of increases in the minimum percentage to 12% over the coming years.

331.  It seems to me that there is insufficient certainty that the minimum percentage figure will in fact be increased as proposed. For the reasons given in paragraph [329] above, I award damages for future loss of superannuation at 11.5% of $450,000 giving a total of $51,750.

Summary

332.  Having regard to the above I summarise my award of damages for the 2017 injury as follows:

Head of Damage Amount

General Damages $140,000.00

Interest $4,000.00

Out of Pocket Expenses

Past $49,840.00

Interest

Future $45,000.00

Loss of Earning Capacity

Past	$98,476.00
Interest	$4,833.00
Future	$450,000.00

Domestic

Care/Assistance

Past	$37,765.00
Interest	$3,329.00
Future	$200,000.00

Loss of Superannuation $11,325.00

Interest	$968.00
Future	$51,750.00

Fox v Wood $18,468.00

Total $1,115,754.00

Damages – The 2018 Injury

General damages and interest

333.  The plaintiff has suffered in his left hip a very similar injury to that suffered in his right

hip. While it is apparent that the overall nature and conditions of the plaintiff’s work must have been contributing to the worsening of the plaintiff’s left hip before 15

October 2018, it is only that incident (which was probably the final tearing of the

labrum), which is the subject of the plaintiff’s claim for damages. The evidence does

not allow a definite conclusion to be drawn as to whether that tearing was inevitable having regard to the prior symptoms, however it must be regarded as a real possibility. Be that as it may, the defendant must take the plaintiff as it finds him. In my view the incident on 15 October 2018 caused a significant increase in the

plaintiff’s symptoms and associated disability. I have elsewhere adopted the approach

that the plaintiff’s disability (including incapacity for work) was primarily caused by his

hip condition until shortly after the repair operation performed by Dr Burns on 24 June 2019. I will award the damages in relation to this injury consistently with that approach.

334.  The plaintiff submitted that the plaintiff has not had quite as good a result from the operation on the left hip as he obtained from his right hip. On this basis, it was argued that he should recover general damages of $90,000 for the 2018 Injury. The defendant argued that the appropriate award is $50,000.

335.  I am conscious that it is now only 2 years since the 2018 Injury, and a little over 1 year since the surgical repair. As noted above, I am also conscious of the overlap between the 2017 and 2018 injuries. Having regard to these matters, and the development of left hip symptoms prior to 15 October 2018, I consider that the appropriate award is $50,000 as suggested by the defendant. I allocate half of that to past. I therefore allow interest at 2% x 2 years x $25,000 resulting in the figure of $1,000.

Past out of pocket expenses

336.  That figure was agreed in the sum of $21,951. The plaintiff claimed interest on amounts which he was required to pay personally, as I understand it, largely in relation to his operation. His submission claimed interest at the rate of 3% for 2 years on $6,207. It is appropriate that he recover interest as claimed and I allow the amount of $408 accordingly.

Future out of pocket expenses

337.  The plaintiff claimed $10,000 under this head. The defendant would allow nothing. It is true that the plaintiff indicated in his evidence that he did not regard the outcome of the operation on his left hip as having been as favourable as that of the right hip surgery. However, the medical evidence did not suggest that the plaintiff was going to require ongoing treatment of his left hip of any significance. I will allow a small buffer of $1,000 to cover the risk that the plaintiff will require some GP consultations and perhaps some rehabilitation type treatment of the hip in the future.

Past loss of earning capacity damages and interest

338.  This was agreed in the sum of $63,316. I note that the period to which this loss relates is between 15 October 2018 and 5 August 2019. The plaintiff claimed interest on the amount of $21,615 which was not covered by the workers compensation incapacity payments. Interest is claimed at the rate of 3% for 2 years in the amount of $1,297. This seems an appropriate way to calculate the interest in the circumstances. I allow this claim.

Fox v Wood component

339. This was agreed in the sum of $19,314.

Future loss of earning capacity

340.  The plaintiff made no claim under this head. This is appropriate given his evidence that but for his back injury he would have been able to return to his full normal duties.

Domestic care and assistance and interest

341.  The plaintiff claimed the sum of $14,595 for the past based on the need for assistance at the rate of 10 hours per week for the period from 15 October 2018 to 5 August 2019. The defendant argued that $10,000 should be awarded under this head.

342.  The plaintiff’s claim accords with the evidence and is reasonable. I allow it. I also

allow interest as claimed in the sum of $876.

343. The plaintiff made no claim for future care/assistance.

Loss of superannuation and interest

344.  The plaintiff claimed $7,281 for his past loss. This is based on11.5% of the figure for past loss of earning capacity. Interest was claimed at 3% for 2 years. The defendant would allow past loss at the rate of 11% only.

345.  For the reasons given in relation to the equivalent claim made in relation to the 2017 Injury, I accept the submission of the plaintiff. I award $7,281 for loss of superannuation and $437 for interest.

346. There is no claim for future loss.

Summary

347.  Having regard to the above I summarise my award of damages for the 2018 Injury as follows:

Head of Damage Amount

General Damages $50,000.00

Interest $1,000.00

Out of Pocket Expenses

Past	$21,951.00
Interest	$408.00
Future	$1,000.00

Loss of Earning Capacity

Past	$63,316.00
Interest	$1,297.00
Future	Nil

Domestic

Care/Assistance

Past	$14,595.00
Interest	$876.00
Future

Loss of Superannuation $7,281.00

Interest	$437.00
Future	Nil

Fox v Wood $19,314.00

Total $181,475.00

Conclusion

348.  It follows from my decision to dismiss the plaintiff’s application for extension of the

limitation period in relation to the 2013 Injury that the defendant’s reliance on the time

bar must succeed. It is entitled to judgment in its favour in relation to that injury.

349.  In relation to the other two injuries, the plaintiff has succeeded in establishing liability and must recover damages of $1,115,754.00 and $181,475, or $1,297,229 in total. No submission has been made that separate judgments should be entered in respect of the 2017 and 2018 injuries. In those circumstances I will enter judgment in favour of the plaintiff in the sum of $1,297,229.

350. I will hear the parties on the question of costs.

Orders

351. The orders of the Court are:

(1)	The plaintiff’s Application in Proceeding dated 20 October 2020 is
dismissed.
(2)	Judgment for the defendant in relation to the injury suffered by the plaintiff in 2013.
(3)	Judgment for the plaintiff in the sum of $1,297,229.

I certify that the preceding three hundred and fifty- one [351] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Crowe

Associate:

Date:

Annexure A

Work Health and Safety Regulation 2011 (ACT)

34            Duty to identify hazards

A duty holder, in managing risks to health and safety, must identify reasonably foreseeable hazards that could give rise to risks to health and safety.

35            Managing risks to health and safety

A duty holder, in managing risks to health and safety, must—

(a)	eliminate risks to health and safety so far as is reasonably practicable; and
(b)	if it is not reasonably practicable to eliminate risks to health and safety—

minimise those risks so far as is reasonably practicable.

36            Hierarchy of control measures

(1) This section applies if it is not reasonably practicable for a duty holder to eliminate risks to health and safety.

(2) A duty holder, in minimising risks to health and safety, must implement risk control measures in accordance with this section.

(3)

The duty holder must minimise risks, so far as is reasonably practicable, by
doing 1or more of the following:

(a)	substituting (wholly or partly) the hazard giving rise to the risk with something that gives rise to a lesser risk;
(b)	isolating the hazard from any person exposed to it;

(c) implementing engineering controls.

(4)

If a risk then remains, the duty holder must minimise the remaining risk, so far
as is reasonably practicable, by implementing administrative controls.

(5)

If a risk then remains, the duty holder must minimise the remaining risk, so far as is reasonably practicable, by ensuring the provision and use of suitable personal protective equipment.

Note A combination of the controls set out in this section may be used to minimise risks, so far as is reasonably practicable, if a single control is not sufficient for the purpose.

60            Managing risks to health and safety—Act, s 19

(1)	A person conducting a business or undertaking must manage risks to health and safety relating to a musculoskeletal disorder associated with a hazardous manual task, in accordance with part3.1(Managing risks to health and safety).
Note WHSAct—s 19 (see s 9).

(2) In determining the control measures to implement under subsection (1), the

person conducting the business or undertaking must have regard to all

relevant matters that may contribute to a musculoskeletal disorder, including—

(a)	postures, movements, forces and vibration relating to the hazardous manual task; and
(b)	the duration and frequency of the hazardous manual task; and
(c)	workplace environmental conditions that may affect the hazardous manual task or the worker performing it; and
(d)	the design of the work area; and
(e)	the layout of the workplace; and
(f)	the systems of work used; and
(g)	the nature, size, weight or number of persons, animals or things involved in carrying out the hazardous manual task.