Sawyer v Steeplechase Pty Ltd
[2024] QSC 142
•10 July 2024
SUPREME COURT OF QUEENSLAND
CITATION:
Sawyer v Steeplechase Pty Ltd [2024] QSC 142
PARTIES:
LUKE ANDREW SAWYER
(plaintiff)
v
STEEPLECHASE PTY LTD (ACN 109 392 449)(first defendant)
JOEL QUILLAN AND LINDA QUILLAN AS TRUSTEES FOR THE QUILLAN FAMILY TRUST (ABN 46 863 745 686)
(second defendant)
CRETEK PTY LTD (IN LIQUIDATION) (ABN 83 613 339 423)
(third defendant)
FILE NO/S:
8878 of 2019
DIVISION:
Trial Division
PROCEEDING:
Claim
ORIGINATING COURT:
Supreme Court of Queensland at Brisbane
DELIVERED ON:
10 July 2024
DELIVERED AT:
Brisbane
HEARING DATE:
5 February 2024; 6 February 2024; 7 February 2024; 8 February 2024; 9 February 2024; 12 February 2024; 13 February 2024
JUDGE:
Crowley J
ORDERS:
1. Judgment for the plaintiff against the second defendant for the amount of $781,082.09.
2. The plaintiff’s claims against the first defendant and the third defendant are dismissed.
CATCHWORDS:
TORT – NEGLIGENCE – STANDARD OF CARE, SCOPE OF DUTY AND SUBSEQUENT BREACH – AT COMMON LAW – where the plaintiff claims he injured his back carrying steel mesh sheets (‘first incident’) at a residential renovation project in 2016 (‘job site’) – where the plaintiff was an employee of the second defendant at the time of the first incident – where the first defendant was the principal contractor for the job site – where the first defendant contracted the second defendant to undertake concreting works at the job site – where the second defendant was supplied with the engineering plans – where the plaintiff claims the first defendant had a duty of care as the occupier of land – where obligations are owed under the Work Health and Safety Act 2011 (Qld), Work Health and Safety Regulations 2011 (Qld) and other safety standards – where the first defendant had organised an activity involving a risk of injury – where the operation of the activity was the responsibility of the second defendant – whether the first defendant as the principal contractor had a duty to take reasonable care to supervise and monitor and ensure a safe system of work for specialised work by independent contractors
TORT – NEGLIGENCE – DAMAGE AND CAUSATION – CAUSATION – where the plaintiff ultimately sustained a prolapsed disc at the L5/S1 and experience impingement of the right side S1 nerve root – where the first and second defendant say the plaintiff has a pre-existing degenerative spinal condition – where the plaintiff continued to have back pain and ‘flare ups’ after the first incident – where the plaintiff sometimes completed ‘lighter duties’ after the first incident – where the plaintiff otherwise performed his usual concreter duties – where the plaintiff sustained further injury in 2017 (‘second incident’) – where the plaintiff did not did not see a health practitioner until after the second incident – where the third defendant had taken over the running of the plaintiff’s employer at the time of the second incident – where there were issues with the plaintiff’s credibility and reliability – whether the second incident and the symptoms the plaintiff continues to experience, are causally connected to any injury from the first incident
TORT – NEGLIGENCE – STANDARD OF CARE, SCOPE OF DUTY AND SUBSEQUENT BREACH – CIVIL LIABILITY LEGISLATION – where the second defendant admits that it breached the duty of care it owed to the plaintiff – whether the second defendant’s breach of duty was a necessary condition of the plaintiff’s injuries
DAMAGES – ASSESSMENT OF DAMAGES IN TORT – PERSONAL INJURY – GENERALLY – where the plaintiff experienced an associated worsening of his pre-existing psychiatric condition – where the dominant injury was the plaintiff’s back injury – where the Injury Scale Value is to be assessed – where the plaintiff was otherwise fit and able to work and was an experienced and qualified concreter – where the plaintiff has not undertaken any course, training or rehabilitation towards obtaining new employment – where the plaintiff was assessed as being able to perform sedentary to light work – where there is a potential option for the plaintiff to obtain further surgery – where there was a significant change in the plaintiff’s domestic duties only after the second incident – whether the plaintiff sustained a serious permanent impairment in the thoracic or lumbar spine which may involve bilateral or multilevel nerve root damage or a change in motion segment integrity – whether the plaintiff has a residual earning capacity of greater than one day a week – whether there is a need for ongoing treatment and management of the plaintiff’s injury – whether the plaintiff’s evidence of past and future care needs is reliable
Workers Compensation and Rehabilitation Act 2003 (Qld), s 270, s 305D, s 305E, s 306N, s 306O, 306P
Workers Compensation and Rehabilitation Regulation 2014 (Qld), s 129, s 130, sch 8, sch 12
Work Health and Safety Act 2011 (Qld), s 5, s 19, s 20, s 267Work Health and Safety Regulations 2011 (Qld), s 60
Caltex Refineries (Qld) Pty Ltd v Stavar (2009) 75 NSWLR 649, cited
Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320, citedGuirguis Pty Ltd v Michael’s Patisserie System Pty Ltd [2018] 1 Qd R 132, cited
Kerle v BM Alliance Coal Operations Pty Limited (2016) 262 IR 381, considered
Leighton Contractors v Fox (2009) 240 CLR 1, considered
Onassis v Vergottis [1968] 2 Lloyd’s Rep 403, cited
Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16, cited
Thompson v Woolworths (QLD) Pty Ltd (2005) 221 CLR 234, distinguished
Woolworths Ltd v Perrins [2016] 2 Qd R 276, citedCOUNSEL:
T Nielsen for the plaintiff
M O’Sullivan for the first defendant
A Mellick with J V Pagliano for the second and third defendants
SOLICITORS:
Brighton Langley Law for the plaintiff
Mills Oakley for the first defendantHall & Wilcox for the second and third defendants
The plaintiff, Mr Luke Sawyer, brings an action in negligence to recover damages from the defendants in respect of personal injuries he says he sustained whilst working as a concreter for a business named ‘Cretek Concreting’, (‘Cretek’).
His claim involves two alleged incidents.
The first is said to have occurred on 22 August 2016 on a job site at a residential property in Ascot. The first defendant’s construction business, trading under the trading name ‘SW Constructions’, (‘SWC’), was the principal contractor for the construction project. It had engaged Cretek to undertake some of the concreting works. Cretek was at the time run by the second defendant.
Mr Sawyer and another Cretek employee were tasked by their supervisor to complete foundation preparations for a concrete slab that was to be installed at the site. In performing that task, they had to lift, carry and lay steel mesh sheets. Mr Sawyer claims he injured his lower back when bending and reaching whilst holding one of the mesh sheets as he and his co-worker attempted to position it in place for the slab foundation. He also claims he subsequently sustained further injury, in the form of an aggravation of a pre-existing depressive condition, as a consequence of his physical injury.
Mr Sawyer’s case is that the first incident, and his resultant injuries, were caused by SWC and Cretek breaching the duty of care they each owed him to ensure a safe system of work and to not expose him to unnecessary risks of injury.
Thereafter, Mr Sawyer continued to work as a concreter for Cretek, albeit he says he did so with constant lower back pain that increased over time due to the work duties he was required to perform. He did not seek any medical treatment or see a doctor about his back until after the second incident, almost one year later.
The second incident is said to have occurred on 3 July 2017, when Mr Sawyer was working for Cretek at another job site. The third defendant company had by this time taken over the running of Cretek and was Mr Sawyer’s employer. The company is now in liquidation.
Mr Sawyer claims that he exacerbated or aggravated his initial back injury during the second incident, when he bent over to get a drink during a work break. He also claims that he suffered further resultant aggravation of his psychiatric injury. Subsequent medical investigations revealed a prolapsed vertebral disc in his lumbo-sacral spine.
Mr Sawyer was off work for a time. He submitted a claim for, and subsequently received, workers compensation benefits. He commenced rehabilitation and later returned to work for a few weeks, but eventually ceased working for Cretek as he says the pain from his injured back was too severe and prevented him from continuing to work as a concreter.
Despite subsequent surgery and treatment, Mr Sawyer claims the condition of his prolapsed disc, and the symptoms it caused him to experience, worsened. He is now on a disability support pension and no longer works at all.
Mr Sawyer’s primary case is that his injuries are all attributable to the first incident, for which the first and second defendants are liable. Alternatively, he says he sustained initial injuries as a result of the first incident, which were then aggravated or exacerbated over a period of time due to the further work duties he performed, culminating in the injuries he sustained as a result of the second incident.
On either scenario, Mr Sawyer claims that the defendants are liable for the injuries, loss and damage he says he has suffered.
The defendants deny Mr Sawyer’s claims. Liability and quantum are both in issue.
PART A - LIABILITY
The liability issues
There are four major liability issues to consider in this case.
The first issue concerns the alleged duty of care owed to Mr Sawyer by SWC. Mr Sawyer claims it owed him a duty of care in its capacity as the principal contractor in occupation and control of the job site at the time of the first incident. SWC denies it owed any such duty of care. Furthermore, even if it did, it denies any breach of such a duty.
In contrast, the second defendant, being Mr Sawyer’s employer at the time of the first incident, admits that it owed Mr Sawyer a duty of care which it breached.
The second issue concerns causation. There is no dispute that Mr Sawyer sustained a prolapsed L5/S1 disc at some point in time. What is in dispute is when and how he sustained it. The first and second defendants do not admit the first incident occurred as alleged. Each denies that Mr Sawyer sustained any injury, or at least any significant injury, to his lower back on that occasion. They say that any injury he may have then suffered was minor and resolved in a short time. They further say that Mr Sawyer had a pre-existing degenerative condition in his spine, and it was that condition or some other independent cause, and not any breach of a duty they may have owed, that likely caused Mr Sawyer’s prolapsed disc.
Regardless of when and how Mr Sawyer’s prolapsed disc was caused, the defendants accept that aggravation of Mr Sawyer’s pre-existing psychiatric condition was part of the sequelae of the development of his lumbosacral spine condition.
The third issue concerns Mr Sawyer’s alternative case against the second and third defendants and the alleged over period of time injury he claims he sustained. Existence of a duty of care, breach of duty and causation are all in issue. Mr Sawyer claims that because the second and third defendants were aware that he had previously hurt his back and continued to experience ongoing back pain they owed him a special, higher duty of care to ensure he was not exposed to risks of injury when continuing to carry out his work duties. The second and third defendants deny they owed Mr Sawyer any such duty of care. They say they were not aware that he had sustained a significant injury to his lower back during the first incident or that he continued to experience ongoing pain. Furthermore, they deny breaching any duty of care that they may have owed Mr Sawyer and deny that any injuries Mr Sawyer sustained were caused by such a breach.
The fourth issue concerns the extent of the first defendant’s liability, in the event that it is held to be liable. There are two relevant aspects. First, it claims its liability ought to be reduced on account of Mr Sawyer’s contributory negligence. Second, it seeks to recover contributions from each of the second and third defendants, as joint tortfeasors under the provisions of the Law Reform Act 1995 (Qld).
The circumstances of the first and second incidents
Before considering the disputed issues, it is necessary to further detail what happened in the first and second incidents.
First incident
The first incident occurred at a residential job site at Yabba Street, Ascot on 22 August 2016. The owner of the residence was undertaking substantial renovations of the property, worth more than $1 million. She engaged an architect for the project and he prepared plans for the renovations. She also engaged SWC to undertake and manage the building works on the property.
Part of the building work to be carried out involved raising the existing house and installing a polished concrete slab underneath. The concrete slab was to be constructed in accordance with plans prepared by an engineer. SWC did some of the preliminary work for the slab installation, including excavating the ground and installing footings. It engaged Cretek to perform additional work for the slab installation, including completing some of the necessary preparatory formwork and foundation work to ready the area for the concrete pour. One aspect of the work to be done by Cretek was laying and fixing steel mesh sheets on the prepared ground to reinforce the concrete once it was poured.
The engineer’s plans detailed the location for the installation of the polished concrete slab and specified the materials that were to be used for its foundation, including the type of steel mesh sheet that was required. The particular steel mesh was identified as ‘SL81’, being a 6m x 2.4m square grid patterned product formed by 8mm thick bars spaced at 100mm horizontal and vertical intervals. Each sheet weighed approximately 105kg.
Cretek first began its work at the site on about Friday, 19 August 2016. On Monday, 22 August, four Cretek workers, Dwaine Stewart, Hepara McMath, Tamati Waho and Mr Sawyer, attended at the site at about 6:30am to complete the preparations for the concrete pour. Mr Stewart was the Cretek supervisor. Two workers from SWC were also onsite attending to other jobs.
In previous days SWC had already performed preliminary work to put the footings for the concrete slab in place. That involved excavating trenches and filling them with concrete to create the first stage of the slab foundation. The Cretek workers were to finish the preparations to have the foundation ready for the concrete pour.
At the commencement of the workday on 22 August, Mr Stewart tasked Mr Waho to work with him to complete the formwork and directed Mr Sawyer and Mr McMath to complete the other slab preparations. Their work involved levelling a sand base that had been left on top of the footings, covering it in sections with a plastic membrane, laying the steel mesh sheets on top of those sections, tying adjoining sheets together and then fixing them in place.
The SL81 mesh sheets were already present on site when the Cretek employees arrived. SWC had earlier ordered them and arranged for their delivery. The sheets were left stacked in a pile out in the open on a driveway area towards the front of the property.
In total, Mr Sawyer and Mr McMath were required to lay and fix about two dozen of the SL81 steel mesh sheets over the previously prepared footings. In order to do so, they had to pick up the sheets from the pile at the front of the property, one at a time, and then carry each one to the required location under the house. They were then required to manipulate each sheet into position to lay it on the ground over a section of the levelled sand base covered by one of the plastic membranes. Once the mesh sheet was in position it could then be tied to adjoining sheets and fixed in place. Most of the footings were clear of obstructions but some areas contained protruding plumbing pipes. Where the section of the footings was clear of obstructions Mr Sawyer and Mr McMath could lay the sheet by simply putting one end down on the ground and then lowering the top end down until it was flat and in position. Where there were protruding pipes, the sheet could not be laid that way. Instead, it was necessary for the workers to lift the sheet, holding it horizontal over the footings and to then lower it down to sit on top of the pipes, where sections of the sheet could then be cut to allow it to fit over the pipes. The sheet could then be lowered to the ground and laid.
It was while performing these duties that Mr Sawyer claims he hurt his back.
Mr Sawyer’s evidence
Mr Sawyer said that he saw the steel mesh when he arrived at the job site. He could see it was a heavier than usual mesh. He mentioned to Mr McMath that he had used the SL81 mesh before, but with three or four people carrying it. He said he was a bit concerned about how the two of them were going to carry the sheets.
According to Mr Sawyer, there was quite a lot of excess sand to remove before the plastic membrane sheets could be laid. His recollection was that it took until about 9:30am to remove the sand. He estimated it was about 11:00am when they started carrying the mesh. He recalled Mr Stewart had left the job site around 9:30am and did not return until about 1:30pm. During his absence, Mr Waho continued doing the formwork alone. Mr Sawyer said that he thought about asking Mr Waho to help with carrying the mesh but because Mr Stewart was not on site, Mr Waho had to keep going with the formwork to finish the job.
Mr Sawyer said Mr Stewart did not give him any instructions about putting the mesh in place before he left the site, only that he and Mr McMath were to lay the sheets that day.
As to the method he and Mr McMath used to carry the mesh sheets, Mr Sawyer explained that they each stood at one end of the sheet, raised it from the ground until it was upright, then held it by grasping a rod about 500mm from the bottom with their right hands while supporting the top with their left hands. They then carried each sheet to the area where it was to be laid.
Mr Sawyer recalled carrying and laying 26 sheets in total. He said it was about when they were laying the fourteenth sheet that the incident occurred. He estimated the time was about 1:30pm to 2:00pm. He said he and Mr McMath had carried the sheet to the area where it was to be laid but there were numerous plumbing pipes protruding from the ground in that area. As a result, the laying of this particular sheet was more difficult than the others. To ensure they did not break any pipes, he and Mr McMath had to first put one end of the sheet on the ground. They then tipped the other end of the sheet over, holding it while squatting down to get it into position.
Mr Sawyer described his left arm had been above his head supporting the top of the sheet and his right arm had been fully extended to the right side of his body and as he squatted and reached out to get the sheet to balance on top of the pipes. He said that it was whilst squatting and reaching out with the sheet above his head that he felt a ‘click’ in his lower back.
According to Mr Sawyer, just after they had laid the sheet, he told Mr McMath that he had felt a click in his back. He said that Mr McMath told him that his back was not feeling too good either. A while later, when Mr Stewart was back on site, Mr Sawyer told him that he had felt a click in his back and that his back was hurting. He did not remember what Mr Stewart may have said to him in response.
Mr McMath’s evidence
Mr McMath’s evidence was contained in a written statement received as an exhibit.
Mr McMath confirmed that Mr Sawyer had hurt his back when they had been performing work duties for Cretek at the Ascot job site. He stated that he and Mr Sawyer had been carrying heavy steel mesh from the driveway to underneath the house where there were some plastic pipes sticking up. He recalled this was where Mr Sawyer hurt his back, as he bent over to place a sheet of the steel mesh. He could not recall exactly what Mr Sawyer had said but he remembered that Mr Sawyer had told him he had hurt his back.
According to Mr McMath, he and Mr Sawyer kept working and carried more of the mesh sheets, but Mr Sawyer was struggling. Mr McMath stated that he could see Mr Sawyer’s back was sore.
Cretek incident investigation form
On 5 October 2016, Adrian Quillan completed an incident investigation form in respect of the first incident. He recorded that the incident occurred at the Ascot job site on 22 August 2010 (sic. 2016) at approximately 11:30am and that Mr Sawyer had reported the incident to Mr Stewart at approximately 15:00.
Under the executive summary section, Mr Quillan wrote:
Luke notified his supervisor immediately, but continued to work. Luke did not do anything differently while carrying the mesh but, being a heavier piece of mesh, could have offset any possible injury by requesting extra help on site to lift (i.e. a 3-man lift for the heavier sheet).
Similarly, as to the root causes of the incident, Mr Quillan noted:
A heavier-than-usual piece of steel mesh was carried by only 2 men as per normal – a third man should have been utilised to offset the extra weight.
Mr Quillan signed the incident investigation form, confirming he was satisfied the information recoded in it was correct. Mr Sawyer did not sign the form.
Conclusion
There was ultimately no real dispute about the occurrence of the first incident. Mr Sawyer’s description of when and how the event occurred is supported by the evidence given by Mr McMath and the information recorded in the Cretek incident investigation report.
I find that the first incident happened in the way described by Mr Sawyer in his evidence.
Second incident
There was no dispute about how the second incident occurred, nor that Mr Sawyer injured his back on that occasion.
Mr Sawyer’s evidence
The second incident happened on 3 July 2017. Mr Sawyer referred to it as one of the occasions he experienced a ‘flare-up’ of his back pain. He explained that on that day he was at a job for Cretek and had gone to his Esky to get a drink. As he bent over to pick up the drink, he felt severe lower back pain.
Despite the sudden pain he experienced, Mr Sawyer said that he did not seek medical attention that day. He recalled that after the incident he had to attend a second job, which was about an hour’s drive away. He said that after driving to the second job his back pain was a lot worse and he could not work, so he left and drove home. He sought medical treatment the next day.
Conclusion
I find the second incident occurred in the way Mr Sawyer described in his evidence.
Did SWC owe Mr Sawyer a duty of care?
Relevant evidence
Whilst I have considered the whole of the evidence, I will summarise only the evidence directly relevant to this issue at this point.
Mr Sawyer’s evidence
Mr Sawyer gave evidence that when he arrived at the Ascot job site one of the SWC workers unlocked the temporary fencing so that he and the other Cretek workers could enter. He recalled there were two workers from SWC on-site all day. They spent quite a lot of their day looking over plans that they had laid out on a plan desk, which Mr Sawyer identified from photographs as a slanted lectern structure situated a few metres away from the location where Mr Sawyer had hurt his back.
Mr Sawyer could not recall if the two SWC employees were at the plan desk when he had carried the first 13 mesh sheets to lay them under the house. However, he did recall that they remained present on-site throughout the day and that they were always visible.
Mr Sawyer identified a Cretek Safe Work Method Statement, (‘SWMS’), dated August 2016. It was a generic document and not specific for the work to be done at the Ascot job site. He recognised it as a kind of document he had used on other occasions. He had not read this particular SWMS and had not been asked to sign it before starting work on 22 August 2016. He had never signed one specific for the Ascot job site.
The SWMS noted as ‘High Risk Activities’, ‘lift and carry objects between 20—55kg…’. Mr Sawyer said that no-one from either Cretek or SWC had talked to him about those activities.
Mr Sawyer stated that there were occasions where he had been asked to sign a SWMS when working on a big commercial site, where workers had to do an induction before entering the site. He said that on those occasions the head contractor would have their own documents that the workers would have to sign. He said there had been occasions when he had been working for Cretek on those job sites that he had been directed by the head contractor’s people to do certain things. He said that he had complied with those directions because ‘the foreman is in charge of the job’ and he would have to follow those directions even above his own boss.
Donald Dixon’s evidence
Mr Dixon is a building industry consultant. He holds various building and construction qualifications. He was engaged by Mr Sawyer’s solicitors to provide two expert reports.
In his first report, dated 1 November 2021, Mr Dixon noted that under the Work Health and Safety Act 2011 (Qld), (‘WHSA’), and the Work Health and Safety Regulations 2011 (Qld), (‘WHSR’), the Hazardous manual tasks Code of Practice 2011 was an approved Code of Practice. He further noted that the Code of Practice applied to anyone who had a duty of care in the situations described in the Code and that it provided guidance on how to manage risk of musculoskeletal disorders, (‘MSD’), arising from hazardous manual tasks carried out in the workplace. He cited s 60(1) of the WHSR, which provided that 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. The task Mr Sawyer was performing on 22 August 2016 when he injured his back was within the definition of a ‘hazardous manual task’. Accordingly, Mr Dixon opined:
So, [SWC’s] “obligation to prevent the injury incident” is that of, “a person conducting a business or undertaking”. The obligation includes the WHS Regulations specific to managing the potential risks associated with a hazardous manual task that could result in an MSD injury.
On the specific issue of SWC’s obligations as the head contractor for the Ascot job, Mr Dixon stated:
Site safety is (first and foremost) the responsibility of the head contractor (in this case [SWC]) to identify the hazardous manual tasks, examine and assess the risks of MSDs and ultimately to implement control measures to eliminate and / or minimise the risk of worker injury from a MSD.
Justin O’Sullivan’s evidence
Mr Justin O’Sullivan is an ergonomist and safety consultant who was engaged by Mr Sawyer’s lawyers to provide two expert reports.
In his initial report, dated 31 January 2020, Mr O’Sullivan set out a number of matters said to be relevant to the issue of whether SWC owed a duty of care to Mr Sawyer. He referred in particular to the obligations of a builder under a generic ‘Housing Safety Workplan’ document published by Master Builders Queensland. He summarised those obligations as follows:
(a)a safety workplan must be prepared by the builder for any project exceeding $80,000;
(b)the builder must provide a copy to a subcontractor or discuss relevant parts with a subcontractor before their work commences;
(c)the plan must be available to anyone on the work site;
(d)the builder must ensure a subcontractor provides a SWMS for any task or activity which the builder reasonably believes could cause bodily harm or injury;
(e)the builder must ensure all workers have undergone a generic industry induction and record details;
(f)the builder must ensure adequate housekeeping and appropriate and safe access so as to control risk to workers;
(g)all persons on site were required to follow all work health and safety directions of the builder and any SWMS provided by their employer;
(h)the builder was required to ensure orderly conduct of all work and oversee coordination of all health and safety aspects pertaining to the project;
(i)the builder must also ensure trade contractors have certain contractual obligations in relation to management of health and safety matters… [consistent with the builder’s obligations].
He further referred to the obligations of contractors and suppliers under Australian safety standard AS/NZS4804:2001: Occupational Health and Safety Management Systems, which he said outlined hazard identification and risk assessment requirements for the activities of contractors and suppliers. In particular he noted that in respect of goods purchased from a supplier the standard provided:
Notwithstanding the contractor’s and supplier’s obligations contained in contract documentation, the organisation remains accountable for safe work practice, procedures and equipment on site.
When cross-examined by counsel for the first defendant, Mr O’Sullivan said that the general principle in safety management was that ‘control is set from the top’. He said that in the construction industry this was not only due to the requirements of the WHSA and the WHSR but had arisen over the years from various sources in terms of professional safety principles. He agreed that the size of the job was relevant to the application of work health and safety principles and obligations but did not consider time on site was as relevant. He confirmed his opinion that SWC, as the head contractor, having engaged Cretek as an independent concreter to do the concreting work, retained an obligation to ensure that the system of work of the contractor was performed in a reasonably safe manner. He agreed that in this case if Cretek had appropriately allocated its four workers then the steel mesh could have been moved about the site in a reasonably safe manner.
Timothy Hall’s evidence
Mr Hall is an employee of SWC. He was the leading hand working on the project at the Ascot job site in August 2016.
He recalled Cretek arrived on site on 19 August to commence their preparation works ahead of the slab pour. He said that on that day they were doing boxing and formwork. He said SWC ‘would have run lines and double-checked pipes and stuff’ but apart from that they had no other part to play in Cretek’s work activities. He confirmed that Cretek was working under the house in the area where the slab was to be constructed and that SWC were working elsewhere on the block. He said he was again onsite on 20 August when SWC would have been preparing footings.
With respect to 22 August, Mr Hall said he was there when the concreters were onsite, preparing the slab, while he and another SWC employee were preparing some footings around the perimeter of the property for landscaping blockwork. He could not recall having anything to do with the work of the concreters. He identified a timesheet for the work undertaken at the job site that day and that an entry, which read ‘slab prep’, related to the work being done by the concreters for the slab preparation whilst another entry, which read ‘tie steel in footings’, related to the work that SWC was doing that day.
Mr Hall said he first learned of an allegation that a Cretek worker had suffered an injury at the work site on 22 August 2016 sometime in early 2018. He was unable to recall which workers from Cretek were onsite that day. He could not remember giving any Cretek employees any instructions with respect to safety aspects or what they were supposed to do or not do on the site on that date. He said he did not ever notice any unsafe work practices being conducted by Cretek or its employees.
Mr Hall confirmed that the concrete slab was subsequently poured on the following Saturday, 27 August, and that he was again present at the site on that occasion.
In cross-examination, Mr Hall confirmed that the formwork that he had been doing at the site involved laying steel mesh in strip footings. He agreed that this steel mesh had also been stored on the driveway area at the front of the property, in the same area where the steel mesh that had been delivered for the work that Cretek was doing had been placed.
Mr Hall agreed that as the leading hand onsite he had control over who entered the site and their conduct onsite. He agreed that he could give directions to any subcontractors onsite. He accepted that part of his role was to ensure that subcontractors produced the appropriate paperwork before starting work onsite. He was unable to recall whether a SWMS had been provided to him by Cretek. He said that there were some SWMS’ from some trades and they were kept in a site box. He agreed that part of his role was to look at those documents to ensure they were realistic and that they demonstrated that people coming onto the site were going to do their work in a safe way. He accepted that his obligation was not simply to put them in the site box but to understand what was in them and then watch the workers onsite to ensure that they were complying with the SWMS.
Mr Hall accepted that he did not really have an independent recollection of 22 August 2016. He vaguely remembered Dwayne Stewart had been there and also recalled Mr Waho was doing box work. He was unable to recall whether the concrete pour had already been booked to take place at that time or whether there were time pressures to get all of the preparation work done. He also could not remember whether there were only two Cretek workers available to carry the mesh from the driveway area to place it in the footings where the slab was going to be poured. He was unable to recall seeing two people carrying mesh on that day. He agreed that the site was very open and that it was a common occurrence to see people carrying mesh, but nothing stuck in his memory of seeing two certain people carrying the SL81 mesh.
Mr Hall agreed that SL81 mesh was not commonly used and that the usual mesh used was ‘SL82’, which was a bit over 50kg in weight. He agreed that using only two people to lift the heavier SL81 mesh would raise a safety issue. He agreed that the job site was not big and accepted that he could see the activities of the Cretek workers from where he was working.
Simon Wehl’s evidence
Mr Wehl is a licensed builder and the sole director of the first defendant. His company specialises in house renovations. He confirmed that in 2016 SWC entered into a contract to renovate the house at the Ascot job site. As part of that job, SWC raised the house, poured a new concrete slab underneath, built in underneath and switched living rooms to downstairs and bedrooms to upstairs.
He confirmed that SWC engaged other contractors to do specialised work at the Ascot job site on numerous occasions. Those other contractors included Cretek. He said that he had been using Cretek as a contractor for about 10 years before August 2016 and he considered they were a reputable concreter, competent to do the concreting work required. He said he had confidence they could perform the job and that he had never had any concerns about safety aspects of their business.
Mr Wehl confirmed that he had sent an email with the architectural and engineering plans for the Ascot job attached and Cretek had in return provided a quote for their labour. He said that as part of their arrangement, SWC would supply the concrete and materials and Cretek would supply the labour to ‘prep the site and pour the concrete.’ He confirmed the concrete slab that was to be installed was to have a polished finish and the specific requirements for the slab were contained in the architect’s plans. The plans specified that SL81 mesh was to be used for the slab reinforcement.
He recalled that all the footings were poured by SWC on 5 August and that Cretek were later onsite for about a week, on and off, to prepare and pour the slab. He confirmed the slab was poured on Saturday, 27 August.
His recollection was that the concreters had first arrived on Friday, 19 August. He confirmed that he was onsite, on and off during that day. When asked about whether he left it to Cretek to arrange the way in which it was doing its work, Mr Wehl said ‘Yes. They’re a subcontractor. They get paid to do the job. I don’t, you know, want to waste, you know, time and money babysitting them to – to do the job they’re being paid to do.’ When asked about whether he had any expertise in the way in which the mesh sheets were to be cut, laid or tied, Mr Wehl said that he did not and that was a job he was paying Cretek to do, and they would work out the easiest way to do it as they felt fit. Mr Wehl confirmed that he did not give Cretek any directions about their system of work and that the matter was left to Cretek. Similarly, when asked whether he left it to Cretek to control their work site when they were doing their work, he stated ‘That’s right. They’re a subcontractor. … I’m not supervising their inter-crew works.’
When asked whether SWC had a safety officer onsite on 19 August, Mr Wehl said that they did not as there was no reason and no requirement to have a safety officer for a job of that size.
Mr Wehl said that he was onsite on 22 August for a time. His evidence was that before 22 August, no one from Cretek had made any complaint about the state of the job site, the task that they had to perform or the weight of the steel mesh that was to be used. He said he was not watching Cretek do their work on 22 August but believed there were three to four workers onsite. He was not aware of any unsafe work practices being undertaken and he did not see SL81 mesh being lifted by only two workers. When asked about whether Cretek had provided any SWMS prior to starting their work, Mr Wehl stated, ‘They normally turn up with a – with a work method statement on the day, yes … At the beginning of it.’ He confirmed that would be the case for every job that he had done with Cretek and that the SWMS would be put in the job box onsite. Mr Wehl stated that he did not retain a copy of Cretek’s SWMS.
As to further work arrangements, Mr Wehl said that contractor staff were not required to provide attendance sheets at the job site and that SWC did not provide any training or induction to the contractor or its employees.
Mr Wehl confirmed that on 22 August 2016, SWC’s employees, Tim Hall and Nathan Brown, were onsite doing some work upstairs and also some work on a landscaping footing for a block wall situated to the side of the property.
Mr Wehl said he was not aware at the time that anyone claimed to have had hurt themselves at the site. He said he only became aware 18 months later, when he received Mr Sawyer’s Notice of Claim.
In cross-examination, Mr Wehl again confirmed that he did not recall seeing anyone carrying any mesh on 22 August 2016. He said that he did not know Mr Sawyer. He agreed that SL81 mesh was not used in every job, but that SWC had probably used it three or four times on other job sites in the past. He said it was a specialised product for a polished slab and added that in this case the polished slab was designed by the engineer and they would install what the engineer had designed.
Mr Wehl accepted that SL81 mesh was a heavy mesh, weighing about 105kg, and that it would be considered a high risk in terms of manual handling. He agreed that it could be quite dangerous to workers onsite if they did not use appropriate manual handling techniques.
In terms of his role and responsibilities, Mr Wehl confirmed that as the operator of a building company he had an obligation to do regular risk assessments. He added however, ‘I engage a contractor to – to perform the – the job, and he provides the labour that he sees fit to get the job completed, as per his quote.’ When asked whether he carried out a risk assessment once he received the plans from the engineer, Mr Wehl said that he did not. He again emphasised that he engaged the contractor to do the job and that Cretek was supplying enough labour to do the job. When it was put to him that it was not a ‘totally arm’s-length contract’ because SWC were supplying the mesh, Mr Wehl stated, ‘His contract was to do labour only … to install the products that we supply.’
When asked whether SWC had flagged with Cretek that SL81 mesh was going to be used on the job site, Mr Wehl said, ‘Joel has the plans and the specifications … he knows that … he would’ve known that it was SL81 and quoted accordingly. And certainly, on the day of the job that they turned up and saw the SL81 lying in a pile in the driveway, they would’ve flagged it at that point to say “Hang on. This is not what we discussed, and we’re not going to proceed any further”.’
Mr Wehl accepted that he did not warn Cretek that SL81 mesh was to be used but added that they had been supplied the plans and specifications to do the job. He accepted that he did not do a risk assessment when he saw the architect’s plans in respect of the use of the SL81 mesh but rejected the suggestion that he did not give any consideration to the safety of workers onsite in respect of the SL81 mesh, stating ‘I don’t believe that to be correct. The contractor knew that it was [SL]81 mesh being used, and it was their responsibility to have enough labour onsite to get that installed safely.’
Mr Wehl confirmed that SWC had ordered the concrete truck for the slab pour. He was not able to confirm the original scheduled date for the slab pour but said that it had been poured on the Saturday. When it was put to him that the Cretek workers were under pressure to complete all of the slab preparations by the end of the day on 22 August 2016, before an imminent slab pour, Mr Wehl responded by pointing to a photograph of the work site taken on 24 August 2016, noting that it showed that at that stage the slab preparations had not been finished and that there was still a significant amount of work to be done by Cretek.
Mr Wehl was shown photographs of work being undertaken at the site on 12 August 2016 by SWC’s employees. He confirmed that SWC laid concrete footings. He said trenches under the house had been dug by a contractor and the SWC ‘would have supervised the digging.’. When it was put to him that he supervised all the contractors onsite, he said, ‘Well … we’re there … We supervise the – the contractors.’ In response to the suggestion that it was part of the role of the head contractor to supervise all contractors onsite, Mr Wehl said, ‘Well, you’re pointing them in the – you’re making sure that they’re – yeah, doing it as per specification and – and the plans.’ He agreed that this supervision also extended to ensuring that the subcontractor did the work as per the SWMS.
When shown further photographs of the work done on 12 August, Mr Wehl confirmed that SWC had installed timber boxing as part of doing the footings. He also confirmed that one of his workers had used a vibrator to help set the concrete when the concrete pour for the footings was carried out. He further confirmed that his workers had carried the steel to the trenches and placed them in the trenches and that they had supervised the concrete pumper pumping the concrete into the footings. Mr Wehl confirmed that those tasks were all standard things that concreters do. When it was suggested to him that it was a fairly common thing for SWC to have its workers do some of the concreting work, Mr Wehl stated, ‘We do footings. We never pour the slab. We’re not skilled to do – well, not licensed and not skilled to do slabs.’ When it was further put to him that it was a similar process to installing the footings, Mr Wehl stated, ‘No, it’s a totally different process and we’re – my crew’s predominantly carpenters, not concreters. So we’d never tackle pouring a slab ourselves.’
When further asked about the SWMS, Mr Wehl agreed that the document was important to ensure subcontractors coming onto the site were going to do their work safely. When it was put to him that, as the head contractor, he needed to look at the document to see what the subcontractor was going to do to perform their work, he said, ‘Yeah … I didn’t read the document on the day, no.’ When shown the SWMS that had been tendered, Mr Wehl was unable to say whether it was the document he received from Cretek in respect of the Ascot job site. When it was put to him that if he had received a SWMS like that, that would lead him to question whether it had taken into account the fact that there was going to be SL81 mesh used on the site, Mr Wehl said, ‘Well, there was enough people onsite – we assumed that there was enough people onsite … to do it safely.’
Mr Wehl confirmed that SWC had obtained a Master Builders’ Housing Safety Workplan and had prepared a safety workplan for the site. He was shown a copy of the generic Housing Safety Workplan that Mr O’Sullivan had referred to and accepted that it was the version of the document that had been used at the Ascot job site. He confirmed that it set out many of the obligations that SWC had as the builder in respect of a construction site. He accepted that was so because SWC had control of the job site, that it could exclude people from the site if it chose to, and that it could ask subcontractors to leave the site if it was not happy with the way they were performing their work. Mr Wehl agreed that according to the Housing Safety Workplan, any person intending to do construction work at the site must hold a general induction before starting work. He confirmed however that no inductions were done for this job site. He further agreed that the Housing Safety Workplan provided that subcontractors must follow properly approved SWMS’ as provided, signed and dated by their employer and comply with the site rules.
Joel Quillan’s evidence
Joel Quillan, is a concreter by trade. He and his wife, Linda Quillan, are the trustees of the second defendant. Before October 2016, they operated the Cretek concreting business. After October 2016, Mr Quillan was the managing director of the third defendant company, Cretek Pty Ltd, which took over running the business.
He confirmed that Cretek had done work for SWC in the past and that when they did they would have provided a quote and entered into some type of agreement, whether it was a formal agreement or a ‘simple approval’. He said that in order to provide a quote, Cretek would usually receive architectural or structural plans or both. He confirmed Cretek had provided a quote to SWC for the Ascot job.
When cross-examined by counsel for SWC, Mr Quillan agreed that when Cretek had done work for SWC in the past they would normally be emailed the relevant architectural or engineering plans, which would provide information about the type of concrete slab to be constructed and the type of steel mesh for the slab. He agreed that it was necessary to have the plans to be able to assess the scope of the work to be carried out and to provide a quote. He identified a copy of the plans Cretek had received from SWC for the Ascot job. He agreed that when he received the plans he knew that the slab required a polished finish and that SL81 mesh was to be used. He further agreed that he knew SL81 was a heavier mesh and that would have been why four men were onsite on 22 August 2016. He agreed that his normal practice would be to have three or four men to move steel mesh of that kind.
Mr Quillan agreed that the foundation preparation work to be undertaken by Cretek at the Ascot job site was work of a specialist nature. He agreed that part of the duties of a concreter involved cutting mesh as necessary and moving it and tying it in place into the overall fabric for the slab. He agreed that cutting the mesh before moving it would make it lighter and would allow it to be manoeuvred into position. He did not agree however that mesh would always be cut before moving it to lay it where pipes might be protruding. He said sometimes he would put the sheet against the pipes and cut around it in situ.
Mr Quillan agreed that Cretek would normally produce the SWMS when doing work for SWC. He agreed that a SWMS would normally be given to the head contractor at the start of a job and the head contractor would then retain it. In terms of working with SWC, Mr Quillan said that Cretek would not always provide a SWMS when they arrived onsite. He identified the Cretek SWMS in evidence as consistent with the type of document Cretek would provide to SWC in 2016. He described the SWMS as a document that ‘covered pretty much everything we did onsite’. He agreed that the SWMS indicated to the head contractor that Cretek had gone through that process of having a safe system of work for its workers. He accepted that it was Cretek’s responsibility to ensure its workers had a safe system of work.
In cross-examination by counsel for Mr Sawyer, Mr Quillan accepted that he did not have an independent recollection about the quote for the Ascot job. He accepted that, although he had agreed to the question put by counsel for SWC that there had been four workers at the job site on 22 August 2016 because he had noticed the mesh to be used was SL81, he could not definitively say why there had been four workers allocated on that day. He was not sure whether the reason why there was four workers was because there was an urgency to finish the preparations that day.
In response to the suggestion that he did not give any consideration to the dangers posed by SL81 mesh when preparing the SWMS for the job, Mr Quillan said that it was his brother, Adrian, who had prepared the SWMS. He was unable to recall whether SWC had said they should be aware that SL81 mesh was being used for the job and they might want to allow extra staff.
Mr Quillan accepted that the quote provided to SWC was dated 12 April 2016, but that the actual work done by Cretek did not start until 19 August 2016. He agreed that it was common that there would be changes to a construction site plan and that there were certain tasks which had been covered in the Cretek quote which were not ultimately performed by Cretek. He agreed there was no mention in the quote of a polished slab. He agreed that a polished slab required a lot more care and attention by the concreter to get it right, adding that it was the mesh that would keep it from cracking and that the screeding had to be done well so as to not leave lines in the surface.
Mr Quillan agreed that he had previously given a statement to WorkCover in August 2019. He accepted that in his statement he had said that there was no contract between Cretek and SWC for the Ascot job and that SWC had a supervisor onsite to oversee the work being completed by Cretek workers and to monitor progress. In response to the suggestion that on jobsites such as the Ascot job the head contractor’s leading hand was required to oversee Cretek’s work, Mr Quillan said ‘to a certain degree, yes.’ When it was put to Mr Quillan that he would expect the head contractor’s leading hand to step in and stop Cretek workers doing anything unsafe, Mr Quillan said, ‘I wouldn’t expect, but I’d assume … If it was unsafe, then yes, I’d want them to step in.’
Submissions
Mr Sawyer contends that SWC owed him a duty to take reasonable care to:[1]
(a)monitor and maintain workplace health and safety at the site;
(b)direct him not to engage in unsafe work;
(c)warn him of any unnecessary risk of injury; and
(d)avoid reasonably foreseeable but unnecessary risks of injury.
[1]Second Further Amended Statement of Claim, paragraph 5.
The particular risk of injury identified by Mr Sawyer is the risk of injury from the manual handling of the SL81 steel mesh sheets that he was required to work with at the job site on 22 August 2016.[2] Mr Sawyer claims that SWC knew, or ought to have known of this risk. Amongst other things, he relies upon the fact that SWC, was a person conducting a business or involved in the management or control of a workplace, within the meaning of the WHSA. As such, he claims that SWC ought to have known of safe manual handling guidelines, such as the Code of Practice, and ought to have carried out a risk assessment as required by a combination of s 19 of the WHSA and s 60 of the WHSR.
[2]Ibid, paragraph 9.
Whilst he accepts that the relationship between SWC and Cretek, as principal and independent contractor, is one where the common law does not, without more, recognise the existence of a duty of care owed to him by SWC, Mr Sawyer nevertheless submits that the circumstances here are such that a duty of care, with the content and scope as pleaded, did exist.
Mr Sawyer contends that the existence of such a duty is justified when the totality of the relationship is considered. In particular, he points to the following factors:
(a)SWC exerted control over the work he performed at the Ascot job site;
(b)the work he was doing was basic concreting preparation work. It was not specialised work and not something he had some specialised knowledge about, over and above SWC. SWC had itself carried out similar work at the site just weeks prior;
(c)a risk of harm of the kind he sustained was foreseeable by SWC – manual handling is well recognised as a source of back injuries;
(d)the nature of the harm was significant;
(e)there was a degree of vulnerability on his part to harm posed by lifting the steel mesh, in circumstances where there were time pressures to get the preparation works done before the concrete pour;
(f)SWC had assumed responsibility for Mr Sawyer by reason of its obligations under the Housing Safety Workplan it adopted for the work site;
(g)SWC was the lawful occupier of the land;
(h)SWC had ordered the SL81 mesh;
(i)SWC had knowledge (either actual or constructive) that the conduct in which Mr Sawyer was engaged at the site would cause harm – it knew of the risk because its own employees has recently done similar formwork at the same site. It also knew the SL81 mesh needed to be manually handled, and saw it being done in an unsafe way on 22 August 2016; and
(j)SWC’s obligations under the relevant workplace health and safety legislation, the Code of Practice and Australian Standards.
SWC submits the totality of the circumstances do not justify the imposition of the asserted duty. It relies principally upon the fact that Mr Sawyer was an employee of Cretek and that its relationship with Cretek was one as between a head contractor and an independent contractor, where the independent contractor had been engaged as a specialist to perform a particular job. It says that it had wholly delegated the task of laying the steel mesh sheets to Cretek, an experienced and competent concreting contractor. It further says it had had no control over the way in which Cretek completed the concreting work and no obligation to monitor or supervise the works carried out by Cretek’s employee. It says Cretek’s was solely responsible for devising and overseeing the system of work and it had no obligation to interfere or to carry out any risk assessment.
With respect to the opinion evidence of Mr Dixon and Mr O’Sullivan concerning the duties owed by a builder or principal contractor on a construction site, SWC submits that in each instance their evidence assumed that a duty of care would be owed by SWC, which it submitted was ultimately a legal question to be determined by the Court.
As to the potential application or relevance of the workplace health and safety provisions identified by Mr Sawyer in aid of his claim, SWC cites s 267 of the WHSA, which stipulates that nothing in the Act confers a right of action in civil proceedings. It submits that the legislative provisions do not impose any personal civil duty upon SWC.
Legal principles
The provisions of the Workers Compensation and Rehabilitation Act 2003 (Qld), (‘WCRA’), with respect to liability and assessment of damages for personal injury do not apply to SWC as it was not Mr Sawyer’s employer. The Civil Liability Act 2003 (Qld) also does not apply.[3] The question of its liability is therefore governed by the common law.
[3]Civil Liability Act 2003 (Qld), s 5(1)(b).
The relevant principles for determining whether SWC owed Mr Sawyer a duty of care in its capacity as the principal contractor were considered by the High Court in Leighton Contractors v Fox.[4] The appellant in that case, Leighton Contractors Pty Ltd, was the principal contractor for a construction project. It engaged a contractor, Downview Pty Ltd, to carry out concreting works, including reinforcing and formwork. Downview then engaged a subcontractor to provide the concrete pumping for a concrete pour. The respondent was engaged by Downview, together with another man named Stewart, for the concrete pumping. After the concrete pour was completed, the workers commenced cleaning the concrete delivery pipes. As a result of the negligent manner in which that was done, a pipe swung around and struck the respondent in the head, causing him injury.
[4](2009) 240 CLR 1.
The respondent brought an action in negligence against each of Leighton, Downview and Stewart’s company, through which Stewart had been engaged by Downview. The trial judge dismissed the claim against Leighton and Downview but found Stewart’s company liable. The Court of Appeal subsequently upheld an appeal brought by the respondent against the dismissal of his claim against Leighton and Downview, holding each was subject to a common law duty of care for the benefit of the respondent and that each was in breach of that duty. Leighton and Downview then appealed to the High Court.
The Court concluded that neither of the appellants owed a duty of care to the respondent. In allowing the appeal, the Court relevantly stated:[5]
The duty of principals to independent contractors. The common law does not impose a duty of care on principals for the benefit of independent contractors engaged by them of the kind which they owe to their employees [citation omitted]. However, it is recognised that in some circumstances a principal will come under a duty to use reasonable care to ensure that a system of work for one or more independent contractors is safe. The principles were explained by Brennan J in Stevens v Brodribb Sawmilling Co Pty Ltd[6]:
“An entrepreneur who organises an activity involving a risk of injury to those engaged in it is under a duty to use reasonable care in organising the activity to avoid or minimise that risk, and that duty is imposed whether or not the entrepreneur is under a further duty of care to servants employed by him to carry out that activity. The entrepreneur's duty arises simply because he is creating the risk and his duty is more limited than the duty owed by an employer to an employee. The duty to use reasonable care in organising an activity does not import a duty to avoid any risk of injury; it imports a duty to use reasonable care to avoid unnecessary risks of injury and to minimise other risks of injury. It does not import a duty to retain control of working systems if it is reasonable to engage the services of independent contractors who are competent themselves to control their system of work without supervision by the entrepreneur. The circumstances may make it necessary for the entrepreneur to retain and exercise a supervisory power or to prescribe the respective areas of responsibility of independent contractors if confusion about those areas involves a risk of injury. But once the activity has been organised and its operation is in the hands of independent contractors, liability for negligence by them within the area of their responsibility is not borne vicariously by the entrepreneur. If there is no failure to take reasonable care in the employment of independent contractors competent to control their own systems of work, or in not retaining a supervisory power or in leaving undefined the contractors' respective areas of responsibility, the entrepreneur is not liable for damage caused merely by a negligent failure of an independent contractor to adopt or follow a safe system of work either within his area of responsibility or in an area of shared responsibility.”
[5]Ibid, 11–12 [20] (French CJ, Gummow, Hayne, Heydon and Bell JJ) (‘Leighton’).
[6](1986) 160 CLR 16, 47–48 (‘Brodribb’).
Dr Coyne, in his 8 June 2021 report, stated:
Further management of Mr Sawyer's lumbar spine condition will likely be difficult… Assuming an up to date lumbar spine MRI scan continues to demonstrate a significant disc protrusion, further surgery may be an option, whether a revision L5/S1 discectomy or an L5/S1 discectomy/fusion. However given Mr Sawyer's history of previous surgery, ongoing symptoms despite previous surgery, maintenance [sic. of] opioid medication, and the presence of significant adverse psychosocial factors, the prospect of significant benefit from further surgery may be low.
Mr Sawyer gave evidence that his initial surgery in November 2017 had made his symptoms worse and that he was no longer on a wait list for surgery. As I understand his evidence, he saw a neurosurgeon after his June 2021 flare-up which saw him hospitalised at Redcliffe Hospital, and that doctor had told him it would be ‘risky’ to do another operation but he was happy to try it if Mr Sawyer wanted. Mr Sawyer explained that he did not go ahead with surgery at that time, stating, ‘I’d rather someone to be a bit more confident than that if they’re going to operate on my spine again.’
In my opinion, it is reasonable to make allowance for future surgery costs as it is indicated by the medical experts as a potential option and there is a likelihood Mr Sawyer will pursue it again in the future. I allow $20,000 for this future expense.
As to the future need for psychological treatment, in his report of 8 November 2021 Dr Lotz recommended Mr Sawyer continue with his psychologist for a further 18 months on a monthly basis, with an average cost of $250 per session. Despite that recommendation at the time, it seems Mr Sawyer did not continue to see his psychologist but did continue to take his anti-depressant medication.
In his further report of 18 July 2022, Professor Whiteford expressed the opinion that Mr Sawyer should continue on anti-depressant medication and have monthly consultations with a psychologist until he undertakes either a multi-disciplinary pain management program and/or spinal surgery to reduce his pain and physical disability. He noted that a standard fee for a one-hour consultation with a psychologist was $235.
There is no dispute that Mr Sawyer has experienced aggravated symptoms of his pre-existing depression and continues to do so. As I have found, this was a result of the physical injury he sustained to his lower back. I accept Mr Sawyer’s evidence that, in terms of his mental state, he is not really the person he used to be before his back injury. In my opinion it is reasonable to allow for the 18 further psychological counselling sessions that Mr Sawyer claims, at a cost of $250 per session and totalling $4,500.
In terms of the need for future pain management, therapy and rehabilitation, in his report of 11 March 2022, Mr Siebel recommended that Mr Sawyer undertake:
(a)consultation with a pain physician to identify further medical approaches to assist him to manage his persistent pain (no cost estimate given);
(b)consultation with an exercise physiologist – six sessions at $120 per session;
(c)vocational rehabilitation to assist his return to appropriate employment if/ when his functional capacity improves – costing in excess of $4000; and
(d)further physical rehabilitation in the event of further surgery – 15 to 20 sessions at of physiotherapy at $110 per session.
Mr Siebel was not challenged about any of these recommendations when he gave evidence at trial. In my opinion they are each reasonably likely future needs and allowance should be made for those costs as Mr Sawyer claims.
As to the future expenses for attending the GP and the pharmacy and medical cannabis, the tendered out of pocket expenses schedule notes that in 2023, Mr Sawyer attended his GP on eight occasions and went to the pharmacy on seven occasions to obtain cannabis oil and went three times for his anti-depressant medication. Each time the out-of-pocket cost for the cannabis oil was $97. The schedule notes that each GP visit was covered by Medicare.
In his evidence, Mr Sawyer said it cost him about $100 for a bottle of cannabis oil and he needed a new bottle every five weeks. He said he only needed to see his GP every three or four months to obtain his prescription as it would usually have two or three repeats.
In my view it is reasonable to allow an ongoing cost of $20 per week for these ongoing costs, for a life expectancy of 49 years, discounted by 5% (using a multiplier of 971), less a 15% discount for vicissitudes. That equates to $16,507.
In total therefore I allow $47,927 for future special damages.
Tax on compensation - Fox v Wood[42]
[42](1981) 148 CLR 438.
The agreed Fox v Wood amount is $25,443.
WorkCover refund[43]
[43]WCRA, s 270.
The total agreed amount to be deducted from the damages assessment of the WorkCover refund in respect of the claim against the second defendant is $129,029.63. No such deduction would be made in the claim against the first defendant.
Past and future care and assistance
These claims are only made against the first defendant.
Past
Mr Sawyer makes a claim for past paid care of $500, for the costs of mowing and gardening, together with interest on that amount of $186.50 (5% for 7.46 years). I am satisfied it is appropriate to allow an amount of $600, inclusive of interest. There is no basis to allow interest on $500 for 7.46 years. The tendered invoices for lawn maintenance were for services provided from August 2022 to January 2023.[44]
[44]Exhibit 15.
Mr Sawyer also makes a claim for past gratuitous care provided to him by his wife. The parties agree that the appropriate rate for past gratuitous care provided is $55 per hour.
Mr Sawyer’s pleaded claim under this head of damage is for $142,150, for 2,843 hours of care at $55 per hour from 22 August 2016 until the filing of his Second Further Amended Statement of Claim on 31 January 2023. He also claims interest at the rate of 2% for 6.4 years.
At trial the claim was put forward on the basis of evidence given by Mr and Mrs Sawyer and a schedule titled ‘Centaine Sawyer gratuitous care’, which was prepared by Mrs Sawyer. The schedule contained details of the particular services provided, the periods during which services were provided and a calculation of the total hours of extra care needed by Mr Sawyer during those periods together with a calculation of the hours of services actually provided to Mr Sawyer.
According to the schedule, between 2 August 2016 and 3 February 2024, Mr Sawyer needed a total of 4,897 hours of extra care but was actually provided with 3,714.9 hours of care by Mrs Sawyer. If charged at a rate of $55 per hour, the cost of the services needed would equate to $269,335 and the cost of the services actually provided would be $204,317.14.
In closing submission, Mr Sawyer’s claim for past gratuitous care was said to be for $51,959, based on a total of 953.8 hours derived from a table of care needs set out in Mr Siebel’s supplementary report of 25 March 2022. Mr Siebel’s evidence was based entirely on Mr Sawyer’s self-reporting of his assistance needs. Mr Sawyer also claims interest of $19,380.71 on this sum, calculated at a rate of 5% over 7.46 years.
The first defendant contends Mr Sawyer’s claim is grossly exaggerated and the schedule prepared by Mrs Sawyer is a fabrication which does not provide acceptable evidence to support the claim. It submitted that the assessment of care needs is no more than 1.5 hours per week, from November 2017. On its calculation the appropriate amount to allow for this head of damage at the date of trial is: $55 x 1.5hrs x 52 weeks x 6.25 years = $26,812.50.
I do not intend to descend into a detailed analysis of the evidence and further submissions that were made in respect of this claim. I do not accept Mrs Sawyer’s schedule is reliable. I agree with the first defendant’s submission that it provides exaggerated estimates of the hours of care Mr Sawyer needed and the hours of care provided to him. I also do not accept the evidence of Mr and Mrs Sawyer on this issue. In my view it overstated the true position.
I do not accept that Mr Sawyer performed anything like 17 hours of pre-injury domestic activities as of 21 August 2016. I also do not accept that there was a drastic reduction in the hours of domestic activities he performed after the first incident. I am satisfied that he had previously done most of the outdoor chores but do not accept that he contributed to other domestic chores equally with Mrs Sawyer. In my view, between the dates of the first incident and the second incident, there was likely little change in Mr Sawyer’s overall contribution to household chores and he likely needed little assistance with personal care to deal with the symptoms of his back injury. I have already accepted that he would recuperate at home on the weekends, but I do not find that there was any significant change in the level of his domestic activities.
I do accept that after the second incident, Mr Sawyer experienced real difficulties in his ability to perform his usual household duties and required additional care.
In my opinion, the appropriate amount to award for this head of damage would be calculated as 2 hours per week from 4 July 2017. As at the date of judgment that equates to $55 x 2hr x 52 weeks x 7.019 years = $40,148.68. I would, allow interest at 5% on this amount, yielding $14,090.18.
Future
Mr Sawyer’s pleaded claim for future care was $366,000, based on $55 x 7.5 hours per week for 50 years, discounted at 5% (multiplier of 976).
His claim at trial for future paid care was $10,418.66 and his claim for future gratuitous care was put as $200,268.76, based upon the evidence of Mr Siebel and an agreed rate of $55/hr. Mr Siebel’s assessment was based in part on Mr Sawyer’s self-reporting of his care needs but was also based on his own opinion as to Mr Sawyer’s expected functional recovery, functional presentation and his assessment of the demands of daily living tasks.
The same matters I have set out above with respect to the inadequacy and unreliability of the evidence in respect of Mr Sawyer’s past gratuitous care claim apply equally to his claim for future gratuitous care.
The first defendant submits the assessment for future gratuitous care, to age 70, should be no more than $55 x 885 (5% discount tables for 36 years) = $48,730.00.[45] The first defendant therefore submits that only 1 hour per week of future gratuitous care will be required.
[45]To arrive at this figure the first defendant would have had to use a multiplier of 866.
In my view the appropriate allowance for future care should be calculated at 2 hours per week for a life expectancy of 49 years. I would therefore allow $106,810, calculated at $55 x 2 hours per week x 49 years (5% discount multiplier of 971).
Assessment of damages
In summary, I assess Mr Sawyer’s damages as follows:
| Head of damage | First defendant | Second defendant |
| General damages | $80,000 | $34,030 |
| Interest | $6,312 | N/A |
| Past Economic Loss | $289,515 | $289,515 |
| Interest | $59,860.14 | $26,248.67 |
| Past Superannuation | $27,503.92 | $27,503.92 |
| Past Special Damages | $55,626.13 | $55,626.13 |
| Future Economic Loss | $363,800 | $363,800 |
| Future Superannuation | $40,018 | $40,018 |
| Future Special Damages | $47,927 | $47,927 |
| Past Gratuitous Care | $40,148.68 | N/A |
| Interest | $14,090.18 | N/A |
| Future Gratuitous Care | $106,810 | N/A |
| Past Paid Care | $600 | N/A |
| Fox v Wood | $25,443 | $25,443 |
| Gross Total | $1,143,564 | $910,111.72 |
| Less WorkCover Refund | N/A | ($129,029.63) |
| Net Total | $1,157,654.05 | $781,082.09 |
Orders
I make the following orders:
1.Judgment for the plaintiff against the second defendant for the amount $781,082.09.
2.The plaintiff’s claims against the first defendant and the third defendant are dismissed.
I will hear the parties on the issue of costs.
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