Sandra Bernadette Fullick v Jurox Pty Limited

[2015] NSWDC 40

District Court

New South Wales

Medium Neutral Citation:	Sandra Bernadette Fullick v Jurox Pty Limited [2015] NSWDC 40
Hearing dates:	17-19 March and 25 March 2015
Decision date:	02 April 2015
Jurisdiction:	Civil
Before:	Mahony SC DCJ
Decision:	Verdict and judgment for the plaintiff. For orders see [103]
Catchwords:	Personal injury claim against host employer; system of work; employer’s liability; assessment of damages
Legislation Cited:	Workers Compensation Act 1987 Civil Liability Act 2002
Cases Cited:	Jones v Dunkell (1959) 101 CLR 298 McLean v Tedman (1984) 155 CLR 306 Medlin v State Government Insurance Commission (1995) 182 CLR 1 Pollard v Baulderstone Hornibrook Engineering Pty Ltd & Anor [2008] NSWCA 99 Purkess v Crittendon (1965) 114 CLR 164 Shoalhaven City Council v Humphries [2013] NSWCA 390 Watts v Rake (1960) 108 CLR 158 Woolworths v Strong (2012) 246 CLR 182
Category:	Principal judgment
Parties:	Sandra Bernadette Fullick (Plaintiff) Jurox Pty Limited (Defendant)
Representation:	Counsel: C Hart (Plaintiff) D O’Dowd (Defendant)
File Number(s):	13/281724
Publication restriction:	Nil

Judgment

The Plaintiff’s Claim

1. The plaintiff claims damages for personal injury suffered by her on 5 December 2011 while she was working under the defendant’s supervision and control as host employer at premises at Rutherford, New South Wales. The plaintiff was in fact employed by a labour hire company, Integrated Group Limited (“Integrated”), and had been contracted to work for the defendant in January 2010.

2. On 5 December 2011 the plaintiff was working in part of the factory premises known as the “powder room”, in a process that saw bulk quantities of dextrose (a form of sugar) and nitrate (a form of salt) combined and placed into sachets which were heat sealed and then taken away for packing. That process is described in detail below.

3. The plaintiff claims that she suffered an injury to her lower back when manoeuvring a 25 kg bag of dextrose from the platform of an electric lifting device so as to deposit the contents of the bag into a hopper, which then fed the dextrose into the machine.

4. The plaintiff claims that the defendant was negligent in the system of work employed by it in carrying out that process. In his opening, counsel for the plaintiff disavowed reliance on the repetitive nature of the work involved or the duration of the type of work. Rather, the plaintiff relied on the frank injury she alleges arose during that process.

The Defence

5. The defendant admits that it owed the plaintiff a duty of care but otherwise denies that it was negligent. Further, the defendant relies on s 151Z of the Workers Compensation Act 1987 (“WCA”) and says that if it is liable to the plaintiff (which is denied), the defendant is entitled to have any damages payable by it reduced by the liability of the plaintiff’s employer, by the amount of contribution which represents that employer’s proportionate share of liability.

6. The defendant further alleges that the plaintiff’s injury was caused or contributed to by reason of the plaintiff’s own negligence.

The Evidence as to Liability

7. The plaintiff gave evidence that she underwent no induction by the defendant when she commenced work in January 2010 as a casual. However, in August 2010 she did undergo an induction that included watching a video. The induction went for 60 minutes, however, the video did not show her how to use the electric lifter.

8. The plaintiff gave evidence that when she was first directed to work in the powder room she met an employee of the defendant, Mel Soper, whose job it was to collect the sachets out of the machine and place them in a container. She described the machinery as having two hoppers, one for dextrose, which was delivered in 25 kg bags, and the other for salt, which was contained in smaller bags.

9. The 25 kg bags of dextrose were delivered to the powder room by way of a pallet, which was placed outside the room. In order to supply the hopper, the plaintiff described a system whereby she was directed to take the electric lifter to that pallet and to slide the 25 kg bag from the pallet onto the platform of the lifter, which was lowered to the appropriate level. The platform was then raised and the device wheeled back into the power room, adjacent to the hopper. The platform of the lifter was rectangular in shape and the 25 kg bag was placed lengthways along that platform. Once it was situated adjacent to the hopper, the plaintiff described turning the bag sideways, perpendicular to the length of the lifting device platform so that one end of the bag hung over the hopper.

10. Mel Soper then demonstrated that the end of the bag was cut so that the dextrose would fall into the hopper. Once that occurred, the plaintiff was directed to manoeuvre the remainder of the bag by placing her right hand on the end of the bag and lifting it so that the contents would fall into the hopper. In doing so, she marked the position of her left and right hands on a photograph which is contained on page 10 of exhibit A, the report of Mr Neil Adams, ergonomist.

11. The plaintiff gave evidence that whilst the bags were heavy she did not have any trouble lifting the bag in carrying out that process. No one employed by the defendant had ever told her that the method that she was using was wrong or that she should use a different method.

12. On 5 December 2011 she was allocated to work in the powder room and she was asked what happened in the afternoon of that day. She gave the following evidence:

“A: Well, your Honour, I did my work as I was instructed, and on emptying one of these bags into the hopper, I felt my back and whatever it was hurt and said to Mel – as I tilting, like, grabbing the bag to tip into the hopper, I felt in my back – so I said to Mel – I emptied that bag and I went and got a crate and turned it upside down so I could sit down and I said to Mel, ‘how heavy are those bags?’ because at that stage I was not aware of what they weighed and Mel said, 25 kg.”

13. In answer to a question from me, as to what it was that the plaintiff felt in her back at that time, she described “a sharp pain in my back.” She indicated the area of her back that was affected by that pain as being a band across both sides of her back, just below waist level.

14. The plaintiff indicated that the height of the level of the platform when this incident occurred was just below her waist level. The height was adjustable, however, she had never been specifically told what height to use, nor was she given any document or other instruction on how to use the lifting platform.

15. In cross-examination, the plaintiff was asked whether she attended a meeting at the defendant’s premises on 9 January 2012 with the following persons present – Mr John Lawrence from Integrated, Nathan Hutchinson, the production manager of Jurox, Kim O’Grady, the packing co-ordinator from Jurox and Melinda Soper, her co-worker in the room on 5 December 2011. It was put to the plaintiff that she was asked at that meeting to demonstrate how she suffered her injury, and she did so by indicating that she had lifted the 25 kg bag from the platform of the lifting device, when it was at its lowest position. She said she did not remember, and gave this evidence:

“Q: I then suggest after you had done that you were asked by one of those present why you had not used the up function of the lifter to raise the bag to the height of the hopper, to which you didn’t respond. I suggest that’s what happened?

A: No.

Q: You don’t recall?

A: No.

Q: I also suggest that were asked whether or not if what happened, happened, whether or not you asked Melinda Soper, who was in the same room, for assistance, and you said ‘No. I didn’t’. Do you recall that?

A: I don’t recall.

Q: You were also asked, ‘Why have you not reported the injury?’ and you said “I thought it would go away’?

A: I just don’t recall what I reported on that day, what I said in words.”

No evidence was adduced from Mr Hutchinson or Ms Soper about this meeting, nor were either Mr Lawrence or Ms O’Grady called to give evidence about it by the defendants.

16. The plaintiff agreed that she had undergone a general induction on her first day at work at the defendant’s premises on 27 January 2010, and a further induction in August of that year. She agreed that the first time she worked in the powder room was on 31 March 2010 and that prior to the day of her injury she had on many occasions within the plant used the particular type of lifting device, namely, the PV80. The plaintiff agreed that on the six occasions that she had worked in the powder room prior to 5 December 2011 she had expressed no concerns to anyone about the work she was required to do there.

17. It was put to the plaintiff that one 25 kg bag of dextrose was processed in the powder room each hour and not three bags as she had deposed to. She disagreed.

18. On 13 May 2014 the plaintiff attended the defendant’s premises with Mr Neil Adams for the purpose of him preparing a report. She clarified that that part of Mr Adams’ report which referred to the bio-fill room was not work that she had described in the powder room. She said she recalled working for two days in the powder room prior to 5 December 2011, which evidence was challenged. She agreed that she gave the following description as recorded by Mr Adams:

“When Mrs Fullick had opened the bag along the top side, she would use both of her hands to grasp the end nearest her and would lift that end to roll the bag on its side on the lifting device’s platform while also moving it back to her right to prevent it from rolling off that platform.”

19. The plaintiff then gave this evidence:

“Q: He then talks about the lifting equipment movement that you performed involved increasingly awkward posture with your right hand reaching well forwards, as well as substantially higher than your shoulder height, and your upper body twisting from her right across to her left. That’s what he described?

A: Yes.

Q: First, just dealing with that. You’ve indicated that the hopper was about waist height was the agreed demonstration, your Honour – about waist height. The bags themselves went on that lifting platform were perhaps another 20 cms high, would you agree with that?

A: Yes.

Q: That would mean, of course, that when you are standing adjacent to the platform, you could place your hands on that bag and your hands would be no higher than 20 cms above your waist level. Would you agree with that?

A: I’m not sure. My arm would raise to lift the bag.”

20. It was put to the plaintiff that Mel Soper had demonstrated what was required to empty the bags into the hopper thoroughly. The plaintiff answered “Quickly, very quickly.” She agreed that the dextrose bag was easy to spin around and easy to push on the platform of the lifter.

21. It was further put to the plaintiff that there was no requirement to lift either the right corner or the left corner of the bag to empty the contents into the hopper, however, she did not recall Melinda doing that.

22. Paragraph 2.1.6 of Mr Adams report stated that the plaintiff would:

“Continue to lift, shake and twist the bag from its near end until it had been completely emptied. She would then immediately open and empty a second 25 kg bag into the same hopper, unless it was close to full.”

23. It was suggested that that proposition was entirely wrong and did not happen in the course of her working in the powder room. The plaintiff said she continually filled the hopper up, and nobody corrected her. She did not recall that the hopper had a capacity of 110 kgs. It was put to her that if she emptied a bag into the hopper every 20 minutes, the hopper would quickly overflow, which she denied.

24. It was put to the plaintiff that she was not rushed in the job, and that she only had to lift one 25 kg bag of dextrose, and one 12 kg bag of salt into the respective hoppers per hour. She had told Mr Adams that sometimes she placed two 25 kg bags on the lifting device, and when challenged about that, she said that she did that sometimes because it saved her a trip. She made no complaint about the work practice because she hoped to obtain permanent status herself.

25. The plaintiff gave evidence that she continued to do the housework after being referred for a CT scan of her lumbar spine by her doctor in December 2010. Her husband did more work in the garden than she did. It was put to her that from the beginning of February 2012 she would have been able to mow the lawns, which she denied. She also agreed that she could cook a meal, however, on a bad day she did not do it at all. Similarly, she was able to do some house cleaning by way of dusting but did not clean the bathroom. Any vigorous twisting or scrubbing would hurt her back.

26. It was put to the plaintiff that any period of disability connected with the incident at work on 5 December 2011 was limited to a period of six to eight weeks after which she was capable of doing all of her housework, which she denied. She said she did not do housework because she could not do it. She did not agree that seven hours assistance per week for her was a gross exaggeration.

27. It was put to the plaintiff that there nothing physically wrong with her to prevent her from returning to work, with which she disagreed. It was also put to her that she could do other work of a lighter nature, such as working in a shop or on a process line that did not involve heavy lifting, which she also denied because she could not stand for a long time.

28. In re-examination the plaintiff said there was resistance from the bags when they were spun or pushed on the lifting platform. That was a process that was a bit difficult. There was a bit of effort involved because in twisting it, it was heavy.

29. The plaintiff called Mr Graham Wilson who had been employed by Jurox from 2003. He had observed the system of work in the powder room from 2010. He observed workers in that room using the power lifter to transport the 25 kg bags of dextrose to the hopper. When it was adjacent to the hopper, he observed the employees to rotate the bag through 90 degrees and then cut the end of the bag to allow the dextrose to flow into the hopper by way of gravity. He observed the residue in the bag to be emptied by the employee lifting the bag up.

30. In cross-examination Mr Wilson gave evidence that he observed what happened in the powder room whilst waiting to get the attention of the operator. He did not know how much product was created per hour. He did not know what quantities of the products were processed per hour. He was not in a position to say how much of the product flowed out of the bags when they were cut open.

31. The plaintiff also called Ms Sarah Robinson who was an employee of Integrated who obtained work at the defendant’s premises in 2011. She worked in the powder room and on the first occasion she worked there Mel Soper showed her how the work was done. She said there was a lifter to assist in taking the 25 kg bags to the hopper, but “we didn’t always use it”. When the lifter was used to take the bag to the hopper, when it was adjacent to the hopper, the bag was turned so that it was over the hopper. Describing that process, she said:

“A: Well it was a very heavy bag so you had to use two hands to shift it around into position.”

32. Once the end of the bag was slit open, she described lifting the bag using her right hand on the back of the bag and the left hand at the front near the opening. In doing so, her right hand was at approximately shoulder height. Ms Robinson also described that as she lifted the bag she was required to lean forward, bending her back. As the sugar started to flow out of the bag she described lifting it to “shake it out” to empty the bag.

33. Ms Robinson gave evidence that she would work for 10 hours in the powder room on a full shift, during which time, three bags of sugar would be processed in an hour. Finally, she gave evidence that Integrated did not have any input into the type of work she did at Jurox in terms of giving her any instructions about the powder room work.

34. In cross-examination it was put to Ms Robinson that she had never worked a 10 hour shift in the powder room, which she denied. She agreed that she spent about 40 hours in total doing this type of work. When the bag was cut, she said that “maybe half” the contents fell out into the hopper. At that point she was able to lift the other two ends of the bag and shake the last of the dextrose out of the bag.

35. Ms Sophia Marsh gave evidence that she worked at the defendant’s premises in 2010 when she was employed by Integrated. She gave evidence that she worked in the powder room with Mel where the 25 kg bags were packed on a pallet just inside the room. She gave this evidence:

“Q: Where did the pallet end up in terms of the job you were doing?

A: I believe it was just inside the room and then you would – there was a large drum that was roughly head height and you – all you had to do was go and pick the pallet up, the bag up, sorry, cut it open and then manually lift the bag into the drum and obviously keep filling it as it emptied throughout the day which was quite often, it was probably – it didn’t take too long to empty so.”

36. After a short adjournment Ms Marsh gave evidence that there was a lifting aide to assist in lifting the bags. She then gave evidence that the bag was sitting upright when she cut the bag. She was then asked:

“Q: What would you do next with the bag as it sat on that device?

A: I – you would have to manoeuvre it so that it was over the hopper which would the obviously – only a small amount of it would fall in and then you would have to shake – grab the bottom or end of the bag and shake the rest in.”

37. The witness then demonstrated how the bag would be lifted and shaken to empty it. During the time she worked in the powder room, she observed Mel sitting down the whole time, working with the end product.

38. In cross-examination, Ms March said she used a pair of scissors to cut the bag. She disputed that she worked in the powder room for a total of 22½ hours. She agreed that she went through an induction with Jurox on 21 January 2010 and that she was taken through the powder room processes by Mel on the first occasion she worked there. She did not recall exactly the details. She did not recall Mel demonstrating that the bag was placed on the platform hanging over the hopper before it was cut. She denied that it was cut with a stanley knife.

39. Mr Neil Adams, ergonomist, prepared two reports dated 13 January 2014 and 11 February 2015 which were relied on by the plaintiff. In cross-examination Mr Adams agreed that he had inspected the defendant’s premises with the plaintiff and her solicitor. His instructions included the fact that the plaintiff was required to load 60 of the 25 kg bags into the machine every hour. Mr Adams acknowledged that the report relied on by the defendants of a Ms Whitby, relied on a different factual history. He agreed a fair assessment of his response to her report contained in his report dated 11 February 2015 was, “if what she says by way of the factual background is right, then I have no complaint about the system.” Mr Adams agreed that once the 25 kg bag was lying across the platform of the lifter, it would take a modest force to move that bag a slight distance forward on the platform towards the hopper. He agreed that if half of the contents of the bag fell into the hopper, it would take a very modest force indeed then to move the bag further towards the leading edge of the platform to allow the rest of what was left in the bag to fall by gravity into the hopper. He also agreed that minimal effort would then be required to remove the balance of the contents of the bag by simply picking up the bag and giving it a shake.

40. In re-examination Mr Adams gave evidence that if the full bag was still on the platform, the amount of force required to empty the bag would entail a significant “amount of lifting force on the end of the bag against the pillar and not cut open.”

37. When asked what arm would be needed to apply the most effort in lifting the bag to empty it, Mr Adams said he could not answer that.

Defendant’s Evidence on Liability

42. The defendant called Melinda Soper who was employed by the defendant for seven years and eight months. Her role was to operate the powder machine in the powder room and to train employees who had not worked there before. The machine operated four to five times a year and she gave evidence about the operation of the machine. Before production commenced, three bags of dextrose were used to fill the hopper. Five to seven bags of salt were placed in the second hopper.

43. Ms Soper gave evidence of the instructions she gave the plaintiff on 31 March 2010 which was the first time she worked in the powder room. Those instructions were as follows:

“A: To fill up the sugar side you need to get the lifter, wheel it out into the hallway where the pallet of sugar is. Lower your pate down to where the sugar finishes. Slide the sugar over onto your lifter, lift it up and wheel it back into the powder room onto the sugar side.

Q: At that point, when you’re sliding the bag onto the lifter, how is the bag situated on the actual flat floor?

A: Long ways.

Q: When you say long ways, if you’re walking forward pushing the lifter, is the wide section pointing forward to pointing to the sides.

A: The sides.

Q: Continue please.

A: When you get to the hopper, you lift it up just above the hopper, turn your bag around, just slightly move it around, cut it open and half of it will fall out, half the sugar falls out.

Q: When you say you then turn it around, what difference does that make to the direction the bag is facing?

A: If you leave it longways the powder is going to fall on the ground so you need to turn it around so it goes into the hopper.”

44. Ms Soper described the bag being turned 90 degrees before it was sliced open. Part of the bag was overhanging the hopper. She described the sugar like “castor sugar”.

45. Ms Soper gave evidence that the plaintiff was good at the job, and carried it out in the manner in which she was trained. She described the bag as being easy to move when turning it around on the platform and moving it, as well as, once the contents started flowing out. She also gave evidence about the paperwork that was carried out in checking the production.

46. In cross-examination Ms Soper gave evidence that probably 700 sachets were produced on the day of the plaintiff’s accident.

47. Ms Soper agreed that she had never been told or ever shown to allow the bag to fall on top of the hopper grill itself because of the risk of contamination.

48. The machine produced 100 sachets per minute and she agreed that the production was a bit “flat out” and while she was focussed on the sachets and taking samples, she could not have seen what the plaintiff was doing. It was fair to say that her attention could not have been on the plaintiff for much of the time at all.

49. Nathan Hutchinson was the production manager employed by the defendant as at 5 December 2011. He gave evidence of the training of workers in the defendant’s facility and inductions. He gave evidence that the powder room machinery consumed 25 kilograms of dextrose per hour. He designed the procedure and described it as follows:

“A: The procedure is that outside the room is a pallet of dextrose, there is not enough room in the room itself to hold it. We have a PV80 lifter, so an electronic lifter, it is like a glorified trolley. It is an electric lifter. You wheel the lifter out, you adjust the tray level up to the height of the dextrose bag that you want to put on, you lock the wheels down, slide the bag onto the lifter, unlock the wheels, wheel it into the room, adjust the deck just by a simple up and down function of the lifter just to above the height of the hopper, lock your wheels, spin your bag about 90 degrees. It is hanging over the hopper, you cut the bag open and basically most of the powder will – half the powder will start to feed into the hopper and then you empty the rest of the bag into the hopper just by pushing the bag in.”

50. A number of documents relied on by the defendant were tendered through Mr Hutchinson. They included induction documents and production reports, including timesheets. Mr Hutchinson described the dextrose as having “flowability”, meaning that it flowed easily into the hopper. The platform of PV80 he described as having a Teflon surface.

51. Mr Hutchinson gave evidence that on the day the plaintiff alleges she was injured the powder room machine operated for a short time only between 12.05 and 12.15pm, and 1.00pm and 1.20pm. The machine was restarted at 2.10pm but closed down at 3.00pm.

52. Mr Hutchinson was cross-examined about the worksheets prepared in respect of the production. He gave evidence that the defendant produced about 120 products in the 12 months between December 2010 and December 2011. The defendant processed 30 work orders in packaging and about 30 work orders in manufacturing each month. Mr Hutchinson gave evidence that he had been in the powder room plenty of times when the plaintiff had worked there and part of his role was giving instructions to speed production up.

53. Mr Hutchinson did not agree that he delegated the task of supervision of the plaintiff to Ms Soper, as Ms Soper was not a supervisor but a trained operator. He confirmed that the powder room operated probably five times a year for about two to three weeks at a time.

54. Mr Hutchinson gave evidence that the bag only needed to hang over the edge of the hopper by about 100 mm. As to the system, he was asked:

“Q: If someone was supervising her, Ms Fullick, and that didn’t happen and she lifted the bag from the hopper platform reaching over with her right arm and lifting the end of the bag up to empty it, she wouldn’t be following the right procedure would she?

A: That is correct.

Q: In the time that you observed her from time to time you certainly never saw her doing that, is that what you are saying?

A: That is right.

Q: I put it to you that she did that all the time, what do you say to that?

A: I would say to that it would have been reported to me, sir, multiple times. I would say to that that Sandra would have been hurt after the very first time she did that, sir. I would say it would have been raised by other operators. I would say it would have been raised by Integrated. None of that occurred.

Q: Why would it be raised by Integrated?

A: Because they have a reporting function.

Q: Does Integrated go into the powder room?

A: No, they come and do audits of our work environment.”

55. Mr Hutchinson confirmed that Integrated never went into the powder room to observe Ms Fullick the work. He described the process in the powder room as constant work.

56. The plaintiff’s case was put to Mr Hutchinson as follows:

“Q: Do you accept, if Ms Fullick had been observed doing the work with the bag on the lifting device where she was lifting it with her right arm as I previously described, there should have been some sort of intervention, do you accept that?

A: Yes.

Q: I put it to you that the “on the job” training that was provided was inadequate for her to have that in her mind when she did her work, for her to have that method in her mind when she did her work. That is, putting it into the hopper, onto the hopper grill – I will start again, your Honour. I put it to you that the “on the job” training provided by Ms Soper was inadequate for Ms Fullick insofar as she didn’t do the work in accordance with the designated procedure, what do you say to that?

A: I think the training that we do every day is sufficient. I think the action wasn’t carried out effectively.

Q: She was trained only once, wasn’t she?

A: They’re trained on a day to day basis in our business, sir. Up until that point Sandra had worked on over 400 work orders that used a PV80 lifter and was used in multiple work orders throughout the plant.”

57. It was put to Mr Hutchinson that there was no adequate day to day supervision of the plaintiff with which he disagreed. He gave this evidence:

“Q: You agree that if Ms Fullick was doing the work of lifting in the way she described, that is with the right hand lifting the end of the bag from the other end of the lifting platform to try and get the stuff in, you agree that would be an unsafe way of lifting?

A: Yes.

Q: Likely to cause injury?

A: Yes, there is a potential for injury there yeah.”

58. There was no re-examination.

59. The defendant relied on a report of Ms Louise Whitby dated 13 October 2014. The author was not required for cross-examination. She described the system of loading the hopper with dextrose as involving:

• “Obtaining a bag of dextrose from the pallet stack and sliding onto the platform tray on the microlift, adjusted to suit the source bag.

• Pushing the loaded microlift to the hopper.

• Adjusting the microlift tray platform to clear the hopper by approximately 50 mm and then moving the microlift a short way in over the hopper and apply brakes.

• Slide the bag forward part way over the hopper – this can be done from behind the microlift in one movement or in two stages from both sides of the platform.

• Using a Stanley retractable blade, slice along the upper leading edge of the bag.

• Slide the remaining bag from the platform and rotate it over the hopper which will release the majority of the contents from the bag to the hopper.

• Release the brakes and move the microlift clear of the hopper, and,

• Lift the ends of the near empty bag and shake to ensure all remaining contents are sucked into the hopper.”

60. It was this system that Mr Adams was referring to in his concession in cross‑examination referred to in [39] above.

Relevant Factual Findings

61. For the purposes of determining liability in this matter, I make the following factual findings:

1. The plaintiff, having registered for work with Integrated on 3 December 2009, was sent to work at the defendant’s premises at Rutherford on 27January 2010.

2. On 31 March 2010 the plaintiff first worked in the powder room. She was given instructions by Ms Soper who worked there as to how to fill the hoppers with dextrose and nitrate. That demonstration included a demonstration of how to use the electronic lifting device, the PV80 model.

3. On 18 August 2010 the plaintiff underwent a general induction at Jurox. She was given no specific instructions on the lifting device on that day.

4. The plaintiff had in the year 2000, sought treatment for a pain in the back of her left leg, between her calf and the back of her knee. She had been referred for x-ray and CT scan of the lumbar spine and diagnosed with a severe, moderate canal stenosis at L5/S1 level. In December 2010 she had sought further treatment from her GP about her left leg pain and had been referred for x-ray and CT scan on 17 December 2010. That scan showed generalised degenerative changes to the lumbar spine with no focal disc protrusion.

5. On 14 June 2011 the plaintiff underwent a medical examination by Dr McGinty on behalf of Jurox to support an application for permanent employment. She advised Dr McGinty of having previously suffered sciatica. At no time thereafter was she offered a permanent position by the defendant.

6. On 5 December 2011 I accept the plaintiff’s evidence that she was carrying work in the powder room which involved emptying the contents of 25 kg bag of dextrose into the hopper by use of the electronic lifting device, the PV80. I accept her evidence that when the bag on the lifting device was near the hopper she cut open one end of the bag and then with her right hand, lifted the other end of the bag so as to empty the contents into the hopper.

7. I accept the plaintiff’s evidence that in doing so, she was leaning forward from her waist and lifting the bag with her right arm at about shoulder height and twisting her spine towards the hopper. I accept her evidence that in doing so she felt a sharp pain in her back.

8. I find that the plaintiff was not carrying out the work as instructed by her employer. That process involved no lifting of the bag until such time as the majority of the content had emptied into the hopper, and there was little weight in the bag.

9. I find that once the powder room was ready for operation, the process consumed one 25 kg bag per hour. Therefore, the plaintiff had to carry out the process of topping up the hopper once every hour of operation.

10. On 5 December 2011 I find that the powder room machine in fact operated for a short period of time only, concluding at 3pm.

Determination – Was the Defendant Negligent?

62. It was not in dispute that the defendant as host employer owed the plaintiff a duty to take reasonable care to avoid foreseeable risk of injury. The risk of harm to persons working in its premises was a risk of injury that may be caused by those workers being required to lift a 25 kg bag of dextrose. In the modern workplace, a 25 kg bag would be regarded as a heavy bag for female workers to be required to lift. The risk of injury to workers being required to do so is patent.

63. The defendant met that risk by taking the following steps. First, it provided the use of an electronic lifting device so that no actual lifting of the bag was required or necessary in the process. Secondly, the lifting device was moved to the pallet outside the powder room where the bags of dextrose were stored, and the platform lowered to enable the worker to move the bag by sliding it onto the platform on the lifting device. That platform was then raised and the lifting device moved into the powder room adjacent to the hopper. Thirdly, the platform of the lifting device had a Teflon surface so that the bag could be easily turned so that part of it was overhanging the hopper. The worker was then required to cut the bag with a knife, so that the contents of the bag would flow easily into the hopper. The nature of the substance itself meant that it flowed easily under the force of gravity.

64. In this process there was no actual lifting involved of the 25 kg bags. This was the system described by Ms Whitby in her report dated 13 October 2014.

65. I find the system devised by the defendant was a reasonable response to the risk to its production staff. However, the scope of the duty of care here required more than just devising a safe system of work. As the duty of care was akin to that of an employer, that duty extended to maintaining and supervising the system of work to ensure that it was complied with – see McLean v Tedman (1984) 155 CLR 306 at 364.

66. I find that the plaintiff, by lifting the end of the bag with her right arm at shoulder height, at the same time having to lean forward from her waist and to twist her body, was not following the system of work implemented by the defendant. She was, however, not observed by the production manager or any other supervisor to be breaching the system devised for that work. The question then arises, as host employer, did the defendant breach its duty of care by failing to properly supervise the plaintiff in carrying out that task so as to enforce that system? The evidence established that other employees did not carry out the task in accordance with the system devised by the defendant, for example, both Ms Robinson and Ms March gave evidence of carrying out the process in ways which deviated in significant ways from the system as designed. Further, the production manager, Mr Hutchinson, accepted that if the plaintiff had been observed lifting the bag there should have been some intervention (see [56] above).

67. The defendant has submitted that the plaintiff’s credit is a critical factor to the determination of liability in this matter. The plaintiff had limited education, having left school in year 9 and worked in unskilled work until she married and had her children. Before returning to the workforce, she obtained a TAFE certificate in Skills for Work and Training and an OHS white card. She was well motivated to work and disclosed pain in her left leg that she had suffered first in the year 2000 and subsequently in December 2010, after she had commenced work for the defendant. On both occasions she was referred for x-ray and CT scan of her lower back, and she made a clear disclosure of that problem to Dr McGinty when he examined her on behalf of the defendant on 14 June 2011. Whilst it was clear that she had suffered no injury to her back, she clearly was susceptible to further compromise of her back, given the extent of the lumbar facet joint degeneration shown on CT scan. Given that Dr McGinty was employed by the defendant, it may be inferred that the defendant had knowledge of that condition. It did not offer her permanent employment, notwithstanding her application for that work, although other factors were clearly at play, for example, the amount of time she had off work.

68. The plaintiff was a poor historian and must have been responsible for mis‑describing the work process to the expert in ergonomics, Mr Adams, rendering much of his opinion irrelevant.

69. In applying ss 5B and 5C of the Civil Liability Act 2005 (“CLA”), the risk of harm here was a risk of injury to the plaintiff in lifting a heavy weight from about waist level in the manner described above, with her right arm at shoulder height and whilst she was leaning forward and twisting her body. The risk was both foreseeable and not insignificant in accordance with s 5B and therefore the question arises whether the precautions taken by the defendant were sufficient to meet its duty of care.

70. In this case they were not. The defendant failed to properly supervise the plaintiff in the work that she carried out in the powder room. It was not Ms Soper’s job to supervise the plaintiff and the defendant did not call the person referred to by Mr Hutchinson as the other supervisor, Kim O’Grady. No explanation having been provided by the defendant for her absence, it can be inferred her evidence would not have assisted the defendant’s case – see Jones v Dunkell (1959) 101 CLR 298. She had a spine which was susceptible to injury if a safe work practice was not engaged for handling the 25 kg bags of dextrose. Whilst the system devised by the defendant responded to that risk, it was not adequately supervised to ensure compliance by its workforce with the system. By failing to so supervise, the defendant breached the duty of care it owed to the plaintiff.

71. I am satisfied that factual causation has been made out pursuant to s 5D CLA. But for the breach of the defendant’s duty of care, the plaintiff would not have suffered her injury. It was further within the scope of the defendant’s liability so that both aspects of causation have been established – see Woolworths v Strong (2012) 246 CLR 182.

Application of S 151Z of Workers Compensation Act 1987

72. Section 151Z of the WCA relevantly provides as follows:

“(2) If, in respect of an injury to a worker for which compensation is payable under this Act:

(a) the worker takes or is entitled to take proceedings independently of this Act to recover damages from a person other than the worker’s employer, and

(b) the worker also takes or is entitled to take proceedings independently of this Act to recover damages from that employer,

the following provisions have effect:

(c) the damages that may be recovered from the person by the worker in proceedings referred to in paragraph (a) are to be reduced by the amount by which the contribution which the person would (but for this Part) be entitled to recover from the employer as a joint tortfeasor or otherwise exceeds the amount of the contribution recoverable,

(d) the amount of the contribution that the person is entitled to recover from the employer as a joint tortfeasor or otherwise is to be determined as if the whole of the damages were assessed in accordance with provisions of Division 3 as to the award of damages …’

73. The effect of the section was explained by McColl JA (with whom Mason P and Beazley JA agreed) in Pollard v Baulderstone Hornibrook Engineering Pty Ltd & Anor [2008] NSWCA 99 at [30] as follows:

“30 The calculations s 151Z(2)(c) requires the Court to undertake were explained in Forstaff Blacktown Pty Limited v Brimac Pty Limited; Brimac Pty Ltd v Johnston [2005] NSWCA 423; (2005) 4 DDCr 179 (at [74]) as follows (including the names of the first respondent, BHE, and Dependable to make the exercise clear):

“(a) Section 151Z(2)(C) provides for a reduction in the damages the plaintiff worker may recover from a tortfeasor (the non-employer) [BHE] other than the employer tortfeasor [Dependable] in the proceedings which the plaintiff worker has taken for damages against the non-employer [BHE]: Grljak no 1 (at 88); Clout at [29]); the worker’s entitlement to recover from the employer tortfeasor [Dependable] either directly or indirectly is to be no greater than if the worker had sued the employer tortfeasor [Dependable] alone, but the net burden on the non-employer [BHE] is not to be increased; Grljak no 2 (BC9601317 at 7); Clout (at [29], [38]);

(b) The figure used in s 151Z(2)(c) is calculated by the Court: (i) deciding the amount of the contribution the non-employer [BHE] would (but for Pt 5) be entitled to recover from the employer tortfeasor [Dependable] as a co-tortfeasor or otherwise at common law; (ii) deciding what is ‘the amount of the contribution recoverable’ within s 151Z(2)(c) and s 151Z(2)(d); and (iii) deducting the second figure from the first, the product being the amount by which the plaintiff worker’s common law damages from the non-employer [BHE] are to be reduced: Grljak No 1 (at 88-89) Clout (at [29] – [31]);

(c) Where step (b)(ii) leads to the conclusion that the employer tortfeasor [Dependable] would have been liable to pay no damages if the plaintiff worker’s damages were calculated under Pt 5, Div 3, the whole of the figure derived after step (i) is deducted from the plaintiff worker’s damages: Grljak no 1 (at 89); Grljak no 2 (BC9601317 at 7) Clout (at [34]);”

74. There was no evidence led by the defendant to demonstrate that the plaintiff’s injury resulted in a degree of permanent impairment of the plaintiff of at least 15% with the consequence that, by virtue of s 151H WCA, no damages could be awarded against the employer.

75. It is the defendant that bears the onus of proving the elements set out in s 151Z(2)(c) in order to obtain any reduction of damages – see Pollard at [32]. Here, the evidence of Mr Hutchinson referred to in [54] above, was that Integrated did not go into the powder room. Rather, the employer came and did “audits” of the work environment. That evidence was not expanded upon at all, so that the defendant did not establish what was involved in such an audit. Whilst it is non-controversial that the employer owed the plaintiff a non‑delegable duty of care, I am not satisfied on the balance of probabilities that the defendant has established any breach of that duty here. Rather, it was the defendant who failed to enforce proper supervision of the system of work it implemented. Assuming an audit by the employer had been of the system of work to be implemented, that audit would have revealed a safe system of work, but nothing about the defendant failing to carry out the supervision of that system. In those circumstances I find that the defendant has not established that the employer, Integrated, breached its duty of care to the plaintiff, and therefore there shall be no deduction of the plaintiff’s damages pursuant to s 151Z(2) WCA – see Shoalhaven City Council v Humphries [2013] NSWCA 390, per Leeming JA at [104] – [110].

Damages

76. The plaintiff was born on 14 June 1967 and is currently 47 years of age. She left school aged 15 years in year 9 and thereafter did unskilled work, first as a check out operator and then for five years between 1982 and 1987 packing smallgoods at Steggles.

77. The plaintiff’s first child was born on 8 May 1987, her second on 11 September 1992 and her third on 8 October 1993. In 1996 she separated from her husband and later remarried Craig Fullick, who gave evidence in the plaintiff’s case, on 2 November 2002.

78. As set out above, the plaintiff had suffered a left leg pain which she sought treatment from her GP, Dr Yeh, for in July 2000. She was referred for x-ray and CT scan of her lumbar spine and a diagnosis was made of severe moderate canal stenosis at L5/S1 level, secondary to disc herniation. Her symptoms subsided after a few weeks.

79. When her youngest child commenced school the plaintiff first attended as a volunteer at Life Without Partners in 2006. In 2007 she completed a Certificate II in Skills for Work and Training and a First Aid Certificate at Maitland TAFE. In early 2008 the plaintiff returned to work at Steggles but suffered carpal tunnel syndrome in her hands and stopped working. She obtained her OHS white card on 1 May 2008 and after working for a labour hire firm for a short time before Christmas in 2008, she registered for work with Integrated on 3 December 2009. She commenced work with the defendant on 27 January 2010, and on 6 December 2010 she again consulted Dr Yeh in relation to pain in the back of her left leg. She was referred for further lumbar spine x-ray and CT scan which revealed generalised lumbar facet joint degenerative change with no focal disc protrusion. She had no time off work.

80. Following her injury on 5 December 2011, the plaintiff suffered increased pain overnight and the next day rang her employer, Integrated, to notify them of her injury. She was told to see Dr McGinty, the same doctor who had examined her in June 2011 when she had applied for permanent employment with the defendant. She was referred by Dr McGinty for an MRI scan on 14 December 2011 which revealed multi-level mild foraminal stenosis, worse at L3/4 and changes at L5/S1.

81. In January 2012 Dr McGinty referred the plaintiff to Dr Ferch. She was examined by Dr Ferch on 1 March 2012 and referred for physiotherapy treatment. In March 2012 she also consulted her own local medical officer, Dr Yeh, and on 2 April 2012 she was certified as fit for selected duties, four hours per day, four days per week. On 21 May 2012 she was certified as unfit for work by Dr Yeh due to lower back pain. She was referred to Dr R Kuru, orthopaedic surgeon, who examined her on 22 August 2012. At that time she had pain in her back radiated into her left buttock, hamstring and down into her left calf, with occasional discomfort in her right hamstring. Dr Kuru diagnosed aggravation of a pre-existing degenerative condition of her lumbar spine, together with an unrelated synovial cyst emanating from the left side of her L5/S1 facet joint, impinging the S1 nerve root, which was not a result of her workplace injury.

82. The plaintiff gave evidence that she had never been back to work at the defendant’s premises in any capacity since her injury. She had worked for Integrated on light duties for approximately four months, and then worked for a time at a work wear shop at Broadmeadow for two months. Dr Kuru had recommended surgery for her lumbar spine, however, she had not had that surgery. Dr Yeh had prescribed Panadeine Forte for her that she took together with Neurofen. She had stopped having physiotherapy because she could not afford it.

83. Dr Yeh had subsequently referred her to John Hunter Hospital and she had undergone three lumbar spine injections, referred to as transforaminal injections.

84. The plaintiff gave evidence, which I accept, that prior to the accident she did all of the housework and domestic chores at home where she lived with her husband and two of her children. Her ability to do that work was compromised, as was her ability to help her husband doing work outside the home, for example, mowing the lawns and gardening. The injections had helped improve her situation and helped her move more freely and allowed her to do more than she was able to. She gave evidence that her husband and sons now had to contribute to the housework which would otherwise have taken her seven hours per week. That evidence was corroborated by evidence from her husband, Gregory Fullick.

85. The plaintiff gave evidence that she was unable to return to the same position she had when she was employed working for the defendant.

86. The plaintiff’s evidence was challenged in cross-examination, and ultimately the defendant submitted that the plaintiff had suffered an aggravation of her pre-existing and symptomatic L5/S1 degenerative spine, herniated disc and facet joint disease. The medical evidence had revealed that she had been on narcotic analgesia from 2000, including Endone and Panadeine Forte, as well as anti-inflammatory medication, including Celebrex. It was submitted that the aggravation to her pre-existing spinal condition had now ceased, relying on a report of Dr Chris Harrington dated 23 April 2013 (on behalf of QBE workers compensation). On that basis, the defendant submitted that for non‑economic loss the plaintiff should be assessed as less than 15% of a most extreme case and therefore no damages should be awarded pursuant to s 16 of the Civil Liability Act.

87. In respect of economic loss, the defendant submitted that the plaintiff’s injury, being an aggravation of a pre-existing injury, any incapacity she suffered had long since passed and her present incapacity on the open labour market was not the result of the consequences of the injury, but rather, her underlying condition. Therefore an allowance up to the point where she had been cut off by her workers compensation insurer was the maximum economic loss to be awarded, and she was entitled to no economic loss into the future.

88. In respect of the plaintiff’s claim for domestic assistance, it was submitted that the plaintiff did not pass the relevant threshold pursuant to s 15 of the Civil Liability Act and accordingly, no damages should be awarded.

89. The plaintiff relied on the following schedule of damages (MFI 13):

Non-economic loss – 30% of MEC

$131,500.00

Past treatment expenses

HIC charge $3,060.00

Workers compensation payments – Medicals - $11,014.00

$14,074.00

Future treatment expenses

Recurrent weekly expenses including medications, review by GP, injections, physiotherapy, pool class, appliances and travel - $117.62

Pain Management program

$108,799.00

$7,083.00

Past economic loss – 170 weeks at $650 net per week

$110,500.00

Past superannuation calculated at 11%

$12,155.00

Fox v Wood – estimate

$7,500.00

Future economic loss - $500 per week less 20% for vicissitudes

$258,400.00

Future superannuation calculated at 13.22% of net future loss

$34,160.00

Past care and services – 7 hours per week for 170 weeks @ $27.80 per hour

$33,082.00

Future care and services – 7 hours per week @ $27.80 per hour

$180,005.00

Total

$897,258.00

Determination in respect of Damages

90. I was referred to a number of comparable decisions pursuant to s 17A of the CLA, however, each case turns on its own facts.

91. I do not accept the defendant’s submission that the aggravation of the plaintiff’s lumbar spine caused by this injury has ceased, and therefore I do not accept the opinion of Dr Harrington referred to in [81] above. There is an evidentiary onus on the defendant which it has not satisfied – see Watts v Rake (1960) 108 CLR 158 and Purkess v Crittendon (1965) 114 CLR 164. Rather, I accept the evidence of the plaintiff that she suffered a different pain following this injury, a severe pain to her back, which has continued to the present time. Further, I accept the opinions of her treating doctors, Dr Yeh and Dr Kuru, and the opinion of Dr Mastroianni referred to above, as reflecting the proper history of the plaintiff’s injury and its effect on her.

92. Whilst the plaintiff did suffered an aggravation of a pre‑existing degenerative condition to her lumbar spine, it was a serious aggravation. That pre-existing condition was asymptomatic except on two prior occasions for short periods of time. During each of those occasions she had suffered pain in the back of her left lower limb, however, she had not suffered back pain. Following the injury she suffered a severe pain in her back which has continued. The injury warranted a recommendation by Dr Kuru for surgical intervention to decompress her S1 nerve root, however, the workers compensation insurer denied liability for that procedure. I accept the opinion of Dr Kuru that that surgery may be warranted at some time in the future, depending on her symptoms. His opinion is supported by that of Dr Mastroianni, consultant occupational physician.

93. The injury the plaintiff has suffered has affected all of her life activities. Whilst she was a poor historian, I accept that the plaintiff was a witness of truth as to her ongoing problems. For damages for non-economic loss pursuant to s 16 of the CLA, I assess her as 27% of a most extreme case and applying the table in s 16, I award damages for non-economic loss in the sum of $57,000.00.

94. For past treatment expenses I award the plaintiff the sum of her HIC charge together with payments made by the workers compensation insurer, a total of $14,075.00.

95. For future treatment expenses, including supervision by her GP, the need for transforaminal injections from time to time, medications and physiotherapy treatment I award the plaintiff the sum of $15,000.00. To that I add the cost of a pain management program in the sum of $7,000.00 and therefore award $22,000.00 for future medical treatment.

96. For past wage loss I award the plaintiff the sum of $650.00 net per week for a period of 170 weeks to 2 April 2015. I therefore award the sum of $111,800.00.

97. For past superannuation losses, 11% of that loss, totals $12,300.00.

98. For future economic loss, I find pursuant to s 13 of the CLA, that but for the injury the plaintiff would have continued to be employed by Integrated and work for the defendant as host employer, or some other host employer doing relatively unskilled work until aged 67. She had a good work record prior to having children, and returned to work as soon as her youngest child was in primary school. I find, in accordance with Medlin v State Government Insurance Commission (1995) 182 CLR 1 her injury is productive of loss of earning capacity on a continuing basis into the future. With the benefit of pain management and ongoing treatment she may be able to return to unskilled work from time to time, however, she will have to disclose her injury and may not be successful in obtaining such work. I assess her ongoing loss at $400 per week. The calculation is: $400 per week x 646 x 85% = $219,640.00.

99. Loss of superannuation payments calculated at 14% are $30,750.00.

100. I am satisfied that the plaintiff has established a need for domestic care and assistance provided on a gratuitous basis by her husband and sons since the accident in the order of 7 hours per week and has therefore satisfied the threshold in s 15 of the CLA. Her husband gave evidence corroborating her claim which I accept. I therefore award the sum of $33,100.00 for that claim.

101. For the future, the plaintiff has established a need for ongoing care and assistance to be provided on a gratuitous basis. I am not satisfied that that would be provided on a commercial basis, nor am I satisfied that she would not have required it in any event, due to the onset of her otherwise non‑symptomatic degenerative condition. I therefore award her damages for future gratuitous care, at 7 hours per week, for a period of 10 years, I allow the sum of $80,350.00.

102. I therefore assess damages as follows:

Non-economic loss	$57,000.00
Past treatment expenses	$14,075.00
Future treatment expenses	$22,000.00
Past economic loss	$111,800.00
Past superannuation	$12,300.00
Future economic loss	$219,640.00
Future superannuation loss	$30,750.00
Past gratuitous care and services	$33,100.00
Future gratuitous care and services	$80,350.00
Fox v Wood	$7,500.00
Total	$588,515.00

Orders

103. I therefore make the following orders:

1. Verdict and Judgment in favour of the Plaintiff against the Defendant in the sum of $588,515.00.

2. Order the Defendant to pay the Plaintiff’s costs of the proceedings.

3. Exhibits to be returned forthwith.

4. Grant Liberty to Apply to the parties for a special costs order on 7 days notice. Any application is to be by way of Notice of Motion supported by affidavit evidence in accordance with the UCPR.

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Decision last updated: 07 April 2015