Seng v P and M Quality Smallgoods Pty Ltd

[2011] NSWDC 175

District Court

New South Wales

Medium Neutral Citation:	Seng v P & M Quality Smallgoods Pty Ltd & Anor [2011] NSWDC 175
Hearing dates:	11, 12, 13 April, 27 July 2011, and subsequent written submissions
Decision date:	18 November 2011
Jurisdiction:	Civil
Before:	Levy SC DCJ
Decision:	See paragraph [229] of the judgment for orders.
Catchwords:	TORTS - workplace injury -injured worker struck from behind by a heavily laden meat trolley pushed by another employee in a sausage factory - whether injury due to negligence of the defendants - whether apportionment of employer's contribution required pursuant to s 151Z(2) of the Workers' Compensation Act 1987; DAMAGES - assessment of claimed heads of damages
Legislation Cited:	Civil Liability Act 2002, s 5B, s 5D, s 5E, s 5Q Evidence Act 1995, s 60 Uniform Civil Procedure Rules 2005, Sch 7 cl 5(c) Workplace Injury Management Act 1998
Cases Cited:	Browne v Dunn (1893) 6 R 67 Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25 Dib Group Pty Ltd v Cole [2009] NSWCA 210 Galea v Bagtrans Pty Limited [2010] NSWCA 350 Goodrich Aerospace Pty Limited v Arsic [2006] NSWCA 187 Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; 205 CLR 254 Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164 Stevens v Brodribb Sawmilling Company Pty Ltd [1986] HCA 1; (1986) 160 CLR 16 Vairy v Wyong Shire Council [2005] 223 CLR 442 Watts v Rake [1960] HCA 58; (1960) 108 CLR 158
Category:	Principal judgment
Parties:	Leap Seng (Plaintiff) P & M Quality Smallgoods Pty Limited (First defendant) The Homebush Unit Trust (Second defendant)
Representation:	Mr K Andrews (Plaintiff) Ms T Berberian (Defendant) NSW Compensation Lawyers (Plaintiff) HWL Ebsworth (Defendant)
File Number(s):	2009/336435

Judgment

Table of Contents

Nature of case	[1] - [10]
Issues	[11] - [12]
Summary of findings	[13]
Assessed heads of damage	[14]
Evidence overview	[15] - [17]
Credit	[18] - [21]
Facts	[22] - [36]
Issue 1 - The negligence issue	[37] - [87]
Issue 2 - The s 151Z(2) issue	[88] - [99]
Issue 3 - Damages issues	[100] - [160]
Issue 4 - Assessment of damages	[161] - [162]
(a) Non-economic loss	[163] - [168]
(b) Past economic loss	[169] - [186]
(c) Future economic loss	[187] - [199]
(d) Past loss of superannuation	[200] - [201]
(e) Future loss of superannuation	[202] - [203]
(f) Past domestic assistance	[204] - [213]
(g) Future domestic assistance	[214] - [221]
(h) Future out-of-pocket expenses	[222] - [224]
(i) Past out-of-pocket expenses	[225]
Disposition	[227]
Costs	[228]
Orders	[229]

Nature of case

1. The plaintiff, Leap Seng, initially brought these proceedings against the first defendant, P & M Quality Smallgoods Pty Ltd, trading as Primo Smallgoods ["Primo"], and against the second defendant, the Homebush Unit Trust ["the Trust"], and a number of other defendants, being a selection of 4 of the 45 companies that I shall for convenience refer to as the Kaybron group of companies. The plaintiff claimed damages for an injury she sustained at her workplace at Primo's premises, on either 31 July or 1 August 2006, the precise date is not material.

1. In the final iteration of amendments to the plaintiff's statement of claim, only the first defendant, Primo, and the second defendant, the Trustees of the Homebush Unit Trust ["the Trust"] remained as defendants to the proceedings. Primo was the occupier of the premises where the plaintiff was injured. It also owned all the plant and equipment on site. The Trust employed all senior managers and supervisors at the site.

1. Although the reasons for the elaborate corporate structures and arrangements for the employment of labour at Primo's factory were not fully explained, these appear to have been related to a method of corporate organisation that was aimed at the minimisation of insurance premiums. That is not a matter that directly relates to any of the issues that call for decision in these proceedings. Ultimately, there was no dispute that at the material time, the plaintiff was an employee of Kaybron No 24 Pty Limited ["Kaybron"].

1. At the time of her injury, the plaintiff was engaged in process work tasks associated with the manufacture of frankfurt sausages at the Primo factory premises. In the events in question, in the course of her employment with Kaybron, whilst performing tasks controlled by Primo, the plaintiff was struck from behind by a large and heavily laden metal trolley, which had been loaded with meat products.

1. The trolley that struck the plaintiff was being manually pushed towards the plaintiff by a person whom the plaintiff claimed was a Primo employee. Primo claimed that person was a Kaybron employee. The plaintiff was struck by the trolley whilst she was standing and waiting for other trolley traffic in the area to clear, so she could take the opportunity to continue her paused task of wheeling a pallet jack and storage bin to her allocated place of work at the frankfurt machine.

1. The defendants disputed liability for the plaintiff's injury. A focus for the dispute involved the distinction between the legal entities which occupied and managed the premises where the plaintiff worked, namely Primo and the Trust, and the entity which was the plaintiff's actual employer at the time of her injury, namely Kaybron, which was a labour hire company that deployed the plaintiff's labour to Primo's premises.

1. The evidence was that employees of the various Kaybron entities were deployed at various " cost centres " at Primo's factory, including to work in the area of the premises where the plaintiff was allocated to work.

1. The plaintiff's case was that Primo was legally responsible for the system of work in the premises. Primo claimed that Kaybron was also responsible for the plaintiff's safety in the workplace, pursuant to its non-delegable duty of care in that regard.

1. The defendants had common legal representation. The case for the defendants was that they denied they were negligent. There was no plea of contributory negligence raised against the plaintiff.

1. A practical significance of the foregoing matters concerned the question of whether the Civil Liability Act 2002 [" CL Act "] applied to these proceedings as the plaintiff's circumstances did not meet the assessment criteria entitling her to bring a claim for damages under the Workplace Injury Management Act 1998.

Issues

1. The defendants identified the key liability issue to be whether Primo, and the Trust, owed a duty of care to the plaintiff, and if so, what was the scope of that duty of care, and were there relevant breaches of that duty [" the negligence issue "]. Primo argued that in the event the defendants were found to be liable to the plaintiff, any entitlement of the plaintiff to damages should be reduced on account of an assessed proportion of the liability of the plaintiff's employer, Kaybron, pursuant to s 151Z(2) of the Workers' Compensation Act 1987 [" WC Act "] [" the s 151Z(2) issues "]. The defendants also argued that the incident in question only involved minor or trivial injury to the plaintiff, and therefore did not cause the plaintiff to suffer the claimed injury [" the damages issues "].

1. On the question of assessment of damages, issues arose concerning the credit of the plaintiff, as well as the nature and extent of the plaintiff's injuries, the residual effects of any ongoing disabilities, and the effects of those matters upon her earning capacity, and upon her ability to carry out her usual domestic activities. Those damages issues will be separately identified and dealt with wherever they arise in those parts of my reasons that deal with the amount of damages [" the assessment of damages issues "].

Summary of findings

1. I have accepted that the plaintiff's evidence concerning the manner in which she came to be injured. I have found that the plaintiff's injuries arose from, and were caused by, the negligence of each of the defendants. I have assessed the plaintiff's entitlement to damages in the sum of $470,536 . I have found that there should be no contribution on account of the alleged negligence of the plaintiff's employer. I have found that the plaintiff is entitled to a judgment in the unapportioned amount of $470,536 , as s 151Z(2) of the WC Act has no application to the facts of this case.

Assessed heads of damage

1. The plaintiff made a claim in respect of 9 heads of damage. Those heads of damage, and the effect of the quantum submissions by the parties, are listed below, together with the paragraph references to my assessments in respect of those damages:

Head of Damage claimed by plaintiff	Plaintiff's Submissions	Defendant's Submissions	Award	Paragraphs
(a) Non-economic loss (Adjusted from $156,500)	$171,500	$Nil	$171,500	[163] - [168]
(b) Past economic loss	$146,880	$152.78	$71,000	[169] - [186]
(c) Future economic loss	$232,957	$Nil	$119,547	[187] - [199]
(d) Past loss of superannuation	$14,644	$Nil	$7,810	[200] - [201]
(e) Future loss of superannuation	$25,625	$Nil	$13,150	[202] - [203]
(f) Past domestic assistance	$37,576	$Nil	$Nil	[204] - [213]
(g) Future domestic assistance	$152,796	$Nil	$76,305	[214] - [221]
(h) Future out-of-pocket expenses	$13,830	$Nil	$10,000	[222] - [224]
(i) Past out-of-pocket expenses	$3,448.90	$241.60	$1,224	[225]
Totals	$799,256.90	$394.38	$470,536

Evidence overview

1. The plaintiff and her son gave oral evidence in support of her claim. On the liability issues, in addition to the evidence of the plaintiff, evidence was called from Ms Sharon Todd, an ergonomist with expertise in workplace safety. The evidence of Ms Todd focused on criticisms of the work system at the premises. The plaintiff also tendered some answers to interrogatories and other documents on formal matters. In the damages component of the case, the plaintiff tendered a small number of medical reports, as well as some financial returns and payslips.

1. The essence of the case for the defendant was to call witnesses and tender documents tending to show that Kaybron was the employer of Mrs Andjelov in order to enable the argument that Kaybron should bear responsibility for the plaintiff's injury and damages.

1. The medical reports were very few in number, which of itself is not a critical matter. However, there was a paucity of information concerning the plaintiff's treatment history. No medical witnesses were called to elucidate the written opinions that were tendered. This raised a difficulty for assessment where the medico-legal expert for the defendants raised questions concerning the probity or genuineness of the plaintiff's complaints of symptoms relating to the injury for which she claimed damages. These circumstances required an analysis to determine which, if any, of the conflicting medical opinions was to be preferred, and for what reasons.

Credit

1. The plaintiff gave her evidence through a Khmer Cambodian interpreter. The plaintiff's son gave evidence concerning the circumstances in which a prior statement had been obtained from the plaintiff. I did not consider that any relevant credit issues arose from that statement.

1. The report of Dr Anthony Smith, an orthopaedic surgeon, which was tendered by the defendants, contained remarks that tended to cast doubt upon the reliability of the plaintiff's account of her disabilities. Significantly, the credibility based matters adverted to by Dr Smith, which were relied upon by the defendants, were not put to the plaintiff in cross-examination. In those circumstances, I consider that absent other evidence supporting such comments, any credit findings adverse to the plaintiff on those matters would be inappropriate: Browne v Dunn (1893) 6 R 67. This is especially so where Dr Smith was not called to give oral evidence to provide further explanatory reasons for his comments that were critical on the reliability of the plaintiff's historical account of her disabilities.

1. I consider that the attack on the plaintiff's credit based upon demeanour and the proposition that she resorted to the use of an interpreter when at times she was able to respond to questions in English has not been made out. In this case, the use of an interpreter was justified for clarity. English was not the plaintiff's first language. Giving evidence is a matter of some solemnity. In those circumstances it is only right that the plaintiff should have the assistance of an interpreter. In cases such as this, where the witness is of a different cultural or ethnic background, demeanour is not a proper determinant for making findings on credit: Goodrich Aerospace Pty Limited v Arsic [2006] NSWCA 187, per Ipp JA at [21] - [22].

1. The defendants sought to impugn the plaintiff's credit on other issues such as the precise location where the incident occurred, whether the incident had been witnessed, rostering issues, the work sequences she was required to carry out, and aspects of her disabilities and her treatment. I considered these matters to be peripheral and not of critical significance.

Facts

1. In the paragraphs that follow, I set out my findings of fact, unless otherwise stated.

Plaintiff's background

1. The plaintiff was born in Cambodia in 1959, where she received schooling until the age of 10 years. Thereafter she worked in a shop. She first arrived in Australia in 1996, at age 37 years. She has been an Australian citizen since 2006. Between 1996 and 2005 she periodically travelled back and forth to Cambodia. In this country, until 2005, she was principally concerned and occupied with family responsibilities. Between 1999 and 2009 the plaintiff was married but is now divorced. She has a non-dependent adult son.

1. The plaintiff was apparently in good health and was physically active before the injury in question, apart from a minor problem with gastric reflux that arose in about May 2006, and which is controlled by medication. The plaintiff's medical records show that before the injury in question she had undergone an x-ray of her right knee. The implication of that record is that the plaintiff must have had some kind of a problem with her right knee at that time, but the context of that problem was not explored in the detail of the evidence. I infer from the state of the evidence that whatever that previous knee problem was, it did not interfere with the plaintiff's ability to work as a process worker as at 1 August 2006.

1. Following short periods off work after her injury, and subsequent attempts at light duties, the plaintiff has been unemployed since about 1 October 2006 and has been in receipt of Centrelink benefits due to her injury-related inability to work.

Pre-injury employment

1. Between June and August 2005 the plaintiff was employed as a casual process worker for a packaging company. In about August 2005 she commenced her employment with Kaybron No 23 Pty Ltd in a permanent position. At some stage thereafter, unbeknown to the plaintiff, her employment had been transferred or assigned to Kaybron No 24 Pty Ltd. She worked in that position until the injury, which is the subject of these proceedings. Nothing turns on that transfer of employment.

1. The plaintiff's normal work shifts were Monday to Friday between 6.00am and 2.00pm plus regular overtime on weekdays for about 6 hours and occasionally, 8 hours of overtime on a Saturday or Sunday. She frequently worked 7 days per week. Her net income ranged from between $525.70 (including 2 hours of overtime) and $818.04 (including 19 hours of overtime). The plaintiff performed her work at various sites that were allocated to her from time to time within the Primo factory premises.

Circumstances of plaintiff's injury

1. At all material times Primo was the occupier who had control of the premises and the manufacturing processes within the premises.

1. At all material times Kaybron, which employed the plaintiff, supplied the plaintiff's labour to Primo as part of a labour hire arrangement to deploy staff and labour at Primo's premises.

1. On either Monday 31 July 2006 or Tuesday 1 August 2006, the date is not material, the plaintiff was allocated to work on the frankfurt manufacturing machine at the premises. The plaintiff had been allocated to that task to replace the usual operator of that machine, a Primo employee: Exhibit "5". That person was on holidays at that time. It is not necessary to describe the detail of the plaintiff's allocated work tasks other than as follows.

1. The plaintiff had completed taking a storage bin laden with a completed batch of manufactured frankfurts to a storage area. She did so by placing the bin onto a pallet jack and then wheeling it to a cool room for further storage. She then placed another empty storage bin onto that empty pallet jack in order to take it back to the frankfurt machine to enable the process to be repeated as part of the manufacturing cycle.

1. The floor area between the cool room and the frankfurt machine was busy with other persons and trolleys moving about in the premises. There were no marked-out traffic areas for the travel of either pedestrians or trolleys within the premises. The presence of other trolley and pedestrian traffic required the plaintiff to momentarily stop in a passageway in the area known as the Hamlet area and to remain standing there behind her stationary pallet jack until other pedestrian traffic had cleared the area in order that she could then continue on her journey, during which it was intended that she would push the pallet jack and storage bin on it, back to the area where the frankfurt machine was located.

1. As the plaintiff was standing in the passageway and waiting in that position, another worker, Mrs Lydia Andjelov, pushed a heavy metal trolley laden with shelves with meat products towards the plaintiff from behind without stopping. The weight of the laden trolley was estimated as having been about 200kgs. As it moved forward the trolley struck the plaintiff from behind with a crushing force that pushed the plaintiff's chest forward and hard up against the pallet jack in front of her. After the plaintiff had been struck in that manner, Mrs Andjelov released the pressure of the impacted trolley.

1. The only warning the plaintiff was given of the approach of the trolley was that Mrs Andjelov had called out " trolley " just as the plaintiff was struck from behind. The plaintiff just had sufficient time to swing around to see Mrs Andjelov pushing the trolley into collision with her. The circumstances did not provide an opportunity for the plaintiff to avoid being struck in the manner she described.

1. I will resume the analysis of facts concerning the events that followed this incident when dealing with the resultant damages issues at paragraphs [ 100 ] to [ 160 ] of these reasons.

1. I now turn to the related issues of the duty of care owed, and the claimed breach of that duty

Issue 1 - The negligence issue

1. In the circumstances of this case, in the context of occupation of the premises, and the deployment of labour in the premises, there can be no issue that the defendants owed the plaintiff a duty of care: Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; 205 CLR 254 per Gleeson CJ at [13] .

1. The question of whether the plaintiff's injuries arose from, and was caused by a breach of duty of care amounting to negligence on the part of the defendants is to be determined by the requirements of s 5B, s 5D and s 5E of the CL Act . Before approaching that question, the scope of the duty of care owed needs to be identified.

1. The defendants maintained that the plaintiff's work at the Primo premises was under the care, control and management of her employer, Kaybron. The defendants further claimed that the system of work had been designed, implemented and maintained by Kaybron.

1. The defendants also maintained that in the event of a finding that they are found liable to the plaintiff in damages, then the plaintiff's damages must be reduced to reflect the extent to which the employer is found liable: s 151Z(2) of the WC Act 1987. That stance was pleaded in paragraph 12 of the defence to the amended statement of claim filed in court on 12 April 2011.

1. In this case, the evidence was that Primo owned the trolleys and the premises where the incident occurred, and was responsible for the supply of the equipment and the work systems that operated within the premises. The Trust supplied the supervisory staff for production task organisation and sequencing. At the same time, for commercial reasons, Kaybron was the entity that employed some of the staff in the premises, including the plaintiff, who were deployed to operate some of the equipment, as well as to participate in the system of work within the premises.

1. Within those arrangements, it was clear from the evidence of the employees who were called, that Primo and the Trust exercised the ultimate control of the premises as to the sequencing and system of work within the premises. This was in connection with Primo's manufacturing processes that included matters of quality control, hygiene, and the ability to control and discipline the employees who worked at the premises.

1. In my view, those matters are crucial elements to the determination of the liability issues in this case because they guide the decision as to which entity controlled the works and the workers at the premises on the day in question: Stevens v Brodribb Sawmilling Company Pty Ltd [`986] HCA 1; (1986) 160 CLR 16 and subsequent cases following that line of authority.

1. The plaintiff's employer, Kaybron, had a non delegable duty to ensure that reasonable care would be exercised to ensure that the system of work in which the plaintiff was engaged was suitably safe, so that its employee, the plaintiff, would be protected from the foreseeable risks of injury. That duty extended to inspection of the workplace and work system for the safety of its employees. The context of that duty in this case was Kaybron's deployment of labour at Primo's premises, where Primo as occupier, controlled and determined the details of what tasks were required to be carried out in the process of manufacturing of smallgoods within the premises.

1. In those circumstances, Primo, the occupier of the premises, was also under a duty of care to ensure that reasonable care would be exercised concerning the arrangement and management of the premises so as to ensure that persons lawfully on the premises, such as the plaintiff, would be kept safe from foreseeable sources of harm. This duty extended to the management, operation and use of its floor area and trolleys used for conveying its goods and equipment.

1. The plaintiff's case, simply put, was that whilst she was engaged in fulfilling her work tasks at the premises, Primo's employee, Mrs Lydia Andjelov, had pushed a trolley into forceful contact with the plaintiff from behind. This was where the plaintiff had been lawfully entitled to stand at the point she was located when she was injured, and she had no indication that she was about to be struck from behind. In those circumstances, the relevant question that arises is whether this occurred as a result of negligence on the part of the defendants.

1. Therefore, the next matter that requires determination in dealing with the negligence issue is the question of which entity in fact employed Mrs Andjelov. In my view, for the reasons that follow, the evidence overwhelmingly and indisputably points to Mrs Andjelov having been employed by Primo at the time of the incident.

1. Mrs Andjelov's conditions of employment were issued in the name of Primo: Exhibit "F". Those conditions had all the indications of an employment relationship, referring to the potential of summary dismissal, the provision of sick leave, annual leave, timekeeping, housekeeping, the wearing of uniforms, the personal hygiene requirements, availability of a rehabilitation programme, equal opportunity policies, and other provisions. Primo made a first aid course available to its employees, including Mrs Andjelov: Exhibit "G". Primo kept Mrs Andjelov's personal details and details of her bank account in order to transfer her wages into her account, and entered those details into its wages system: Exhibit "H". Primo issued at least 2 " Official Warning Letters " to Mrs Andjelov concerning her performance at work, threatening her with possible termination of employment, and included copies of that correspondence in the personal file it kept in relation to its employment of her: Exhibit "J". Primo wrote to Mrs Andjelov threatening her with disciplinary action concerning workplace issues: Exhibit "K". Primo kept a record of Mrs Andjelov's employee training record: Exhibit "L".

1. It was Primo, and not Kaybron, that had asserted a high level of control over the workplace activities at the premises, including the control of the activities of Mrs Andjelov and other employees on the site. In my view, this indicated that Mrs Andjelov was Primo's employee. The indications of control I have outlined above make it clear that at the relevant time, there was an employer / employee relationship that persisted between Mrs Andjelov and Primo. This is amply demonstrated by the level of control that Primo was able to assert, and in fact asserted, in connection with Mrs Andjelov's employment.

1. The next matter to be considered is which entity owned and controlled the equipment being used on the premises.

1. Clearly, the equipment that was being used on the premises belonged to Primo: Exhibit "1" and Exhibit "4'. The equipment and the premises were being used in a managed workflow system that was devised, supervised and controlled by Primo.

1. In conformity with that formulation, any liability of Primo in connection with its systems of operations on the premises would necessarily include a vicarious liability for its employee, Mrs Andjelov, for any actions that she undertook in the course of her employment.

1. The plaintiff's formulation of the negligence of the defendants was principally concerned with allegations of failure to devise and implement a system of work to ensure that the plaintiff would not be exposed to injury due to the movement of trolleys within the premises.

1. This was in circumstances where the trolleys in use in the premises were large, heavy and by their size and configuration, and because of the level to which they had been loaded, there was the potential for obstruction to the vision of the persons required to push the trolleys. This was in circumstances where those persons could not see the way ahead because of shelf and load height considerations, thereby creating the risk of a collision, as occurred with the plaintiff in this instance.

1. In my view, the risk of a collision of the kind that occurred here was reasonably foreseeable where the plaintiff was required to venture into areas within the premises in order to fetch bins when those areas were regularly traversed by these trolleys. This exposed her to the risk of harm, which I consider to have been avoidable, if reasonable care had been exercised in governing the circumstances and the areas where those trolleys would be foreseeably used.

1. The manner in which the negligence argument proceeded against the defendants was that the premises were inadequately laid out for the operations being conducted there. In that regard, there was busy trolley and pedestrian traffic within the premises as part of the day-to-day operations of the factory. Those circumstances made a collision foreseeable, if reasonable care was not taken to address and avoid that risk by providing separately designated areas for the safe use and movement of trolleys and pedestrian workers within the premises.

1. In order to sustain these arguments, the plaintiff not only relied upon a commonsense analysis of the events, but also relied upon the expert evidence of the qualified ergonomist, Ms Todd.

1. The core factual assumption upon which Ms Todd based her opinion was that the plaintiff got squashed between the pallet jack handle that was in front of her, and a metal trolley that hit her from behind: Exhibit "7".

1. Although Ms Todd did not have the opportunity to inspect the premises for the purpose of preparing her report, she was of the view, and I accept, that such an inspection was not an essential component of her analysis, and if she had that opportunity it would have been unlikely to have caused her to change her opinions as the foundation assumptions would not have materially changed.

1. The effect of the opinion of Ms Todd was that there was negligence on the part of Primo in failing to provide designated or marked areas for the movement of trolleys and pedestrians separately within the premises because of the obvious risk of collision with pedestrians, as occurred in this case. I consider that argument has obvious application where there was the prospect of intermixing of pedestrian traffic and trolley traffic at the same time. In those circumstances, I consider that it was imperative that pedestrian workers in the premises be kept safe, and separate from potentially injurious contact with trolleys.

1. In my view, this was especially so where the plaintiff was required to move away from her immediate work place in order to fetch a storage tub to permit the manufacturing process to proceed, since the plaintiff did not have an empty tub on hand. This meant she had to traverse areas which were frequented by trolley traffic.

1. The failure of the defendants to address this issue thereby exposed the plaintiff to the risk of injury through a casual act of negligence perpetrated by employees pushing trolleys.

1. In that regard, an orderly approach to regulating the flow of pedestrian and trolley traffic was entirely absent in the premises, and instead, the system of operations that prevailed depended upon an assumption that pedestrians and the persons in control of trolleys would be in a position to be able to see each other in order to take any action that was required in order to avoid a collision. In my view, that situation was more akin to an obstacle course or to conditions involving pedestrians and vehicles on roads, rather than to a safe workplace where the risk of injury to pedestrian workers had to be considered, with appropriate measures being taken to avoid collisions of the kind under present consideration.

1. In my view, there would have been little difficulty and cost associated with ensuring that walkways and trolley ways would be marked out for separate use in a factory where frequent movement of pedestrians and traffic was to be ordinarily expected in the course of a working day. This is plain from the layout of the premises as shown in Exhibit "4". It seems obvious that traffic flow has to be appropriately considered and managed for both the safety of employees on the factory floor and as well as for ordinary work efficiency considerations.

1. In my view, the collision in question could have easily been avoided if a systemic approach to safety had been adopted so as to separate trolleys from pedestrians, as was identified by Ms Todd.

1. A prudent approach to safety also required that the weight, size and structural configuration of the trolleys ought to have been such that they could be pushed from place to place comfortably, without having to be pulled backwards in the manner described by Mrs Andjelov. This would have allowed the person moving the trolley to see the way ahead without obstruction or occlusion at eye level, to ensure that they could see any pedestrians who might be present and ahead, and who might be at risk of injury through a collision with a trolley.

1. These are obvious and commonsense considerations that should have been prospectively obvious, and do not arise on a hindsight analysis: Vairy v Wyong Shire Council [2005] 223 CLR 442 per Hayne J at [126], p 461.

1. The fact that the plaintiff had to leave her work station in order to go and fetch a yellow storage tub or bin and in doing so would have to necessarily traverse areas where there was likely to be trolley traffic bespeaks a deficient workflow and management system that exposed workers to the foreseeable risk of injury from contact with moving trolleys. Ms Todd described this as possibly amounting to poor industrial housekeeping in that storage bins should have been on hand for the plaintiff to use. I agree with that observation.

1. In my view, all of the foregoing matters demonstrate that there have been relevant breaches of the duty of care owed by Primo, and that the pre-requisites for a finding of negligence have been satisfied: s 5B of the CL Act .

1. The risk of injury to the plaintiff from being struck by a trolley being moved within the premises was plainly foreseeable, as a reasonable person ought to have appreciated the risk: s 5B(1)(a).

1. The risk was not insignificant where moving goods around the premises by trolley was the chosen method of operation: s 5B(1)(b).

1. In those events, I consider that a reasonable person would have arranged the work system along the lines identified by Ms Todd in order to take precautions against the risk of an accident of the kind under present consideration: s 5B(1)(c).

1. I have come to these conclusions because there was a high probability of harm from a collision occurring if steps were not taken to separate pedestrian and trolley traffic: s 5B(2)(a). Such harm was foreseeably serious in that it is well known that even relatively minor collisions can cause serious injuries: s 5B(2)(b).

1. The burden of taking precautions against the risk of harm is not great in a large factory where it appears that the floor space as shown on Exhibit "4" could easily have been marked out into separate zones for pedestrian and trolley traffic without great expense: s 5B(2)(c). In any event, any burden imposed on Primo as a result of having to take such precautions seems greatly outweighed by the social utility of avoiding foreseeable injury to workers where there is great social utility for commercial operations like Primo's to continue profitably, without disruption by injury to workers.

1. On the issue of causation, in my view, the plaintiff has plainly established legal causation in that, were it not for the identified failures that I have outlined, her injury would most probably not have occurred: s 5D and s 5E of the CL Act 2002.

1. This leaves the question of the defence raised pursuant to s 5Q of the CL Act . In my view, the defendants have not made good any defence under that section.

1. Whilst it is true that Kaybron had a non-delegable duty to ensure that reasonable care was taken to ensure that the plaintiff was provided with a safe place of work and safe system of work, thereby generally creating a potential vicarious liability for the failure of others to exercise reasonable care, that is not the end of the specific analysis required in this case.

1. In the present case, Kaybron had no power to exercise reasonable care as to the systems in place at Primo's factory because it had no control, either of the system of work, or of any casual act of negligence on the part of another, in this case, Mrs Andjelov. This is because in the present case, the casual act of negligence by Mrs Andjelov, fell outside the tasks with which the defendants were entrusted to take care of in connection with the plaintiff's employment: Galea v Bagtrans Pty Limited [2010] NSWCA 350, per Hodgson JA at [67], following Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1; (1986) 160 CLR 16, at 32-33.

1. In the present case, Kaybron ought not to be required to bear responsibility for Mrs Andjelov's casual act of negligence because the act in question, in striking the plaintiff with a trolley, was outside the scope of the task that Kaybron had entrusted to Primo and to the Trust: Galea , at [67].

1. The defendants have argued that the decision in Galea , the context of s 5Q of the CL Act , imposes strict liability on Kaybron for any systemic failure on the part of Primo and of the Trust to exercise the duty of care imposed on those entities. In doing so, the defendants argued there is no actual distinction between the present case and the position that prevailed in Galea . In my view, for the reasons that follow, that submission should not be accepted.

1. In Galea , at [70], it was held that a reasonable employer would have instructed Mr Galea to report to it, as well as to any surrogate employer, any safety issues that arose in his employment. That was in the context of a failure to repair or replace a defective driver's seat in a truck used for long distance inter-urban transport.

1. In the present case, the plaintiff was allocated to carry out tasks that were new to her to replace the usual employee whose job involved working in the production of frankfurts. The plaintiff only then realised the need to leave the precincts of the frankfurt machine where she was working, in order to take a filled storage container to the storage area, and to then fetch an empty bin, in the course of that newly allocated work. In those circumstances, I consider the defendant's submission in the present case to involve an unreasonable counsel of perfection to require the plaintiff to have both realised that trolley movements posed a risk to her safety, and to report that view to her supervisors at Primo, given her limited language skills and the fact that her supervisors had in fact allocated that task to her. In the ordinary course of events, she was entitled to assume that the assigned task could be carried out safely without danger to herself, until she had sufficient reason to believe otherwise.

1. Even if the plaintiff had the opportunity to report the safety problem under present consideration to her employer on the day in question, it is extremely doubtful that the employer would, in such a short space of time, have been able to inspect the premises and peremptorily require systemic changes to Primo's system of operations in its factory so that Primo would then do what was prudently required, as was envisaged would have been the case in Galea , at [70].

1. It is clear from the decision in Galea , at [70], that the vicarious liability envisaged by s 5Q of the CL Act is a generally applicable principle, but not necessarily, where the defects in the system are for example, due to a manufacturer's own negligence.

1. Significantly, in the present case, the defendants did not tender any evidence to identify what steps should reasonably have been taken by Kaybron, to exercise a duty to take reasonable care for its employee, the plaintiff, in the circumstances of this case: Dib Group Pty Ltd v Cole [2009] NSWCA 210, per Basten JA, at [23].

1. The present case is not one of effective maintenance, over which the employer had no control, where the non-delegable duty is to provide safe equipment, as was observed by Allsop P in Galea , at [6]. Rather, this is a case where the system of work was flawed because of the inter-mix of movement of workers and trolleys in the same areas so as to create a danger of collision through a casual act of negligence. That is a matter over which Kaybron have no control, as that risk could only have become apparent to the plaintiff, and therefore to Kaybron, when the plaintiff was allocated to the new tasks that led to her injury on the day in question.

1. For those reasons, I do not accept the defendant's submission interpreting the authority of Galea to impose strict liability on Kaybron in the circumstances of this case, especially where, from a practical perspective, Kaybron could not have done anything to change the course of events. Accordingly, I find that the defence based on s 5Q of the CL Act should be rejected.

Issue 2 - The s 151Z(2) issue

1. I have found that the plaintiff was injured as a result of the negligence of Mrs Andjelov, who had pushed the trolley into collision with the plaintiff so as to cause the plaintiff's injury. The defendants sought a reduction in the plaintiff's damages pursuant to s 151Z(2) of the WC Act , arguing that if the actions of Mrs Andjelov were characterised as having been negligent, then this required an apportionment of Kaybron's responsibility for the plaintiff's injury.

1. I do not accept that submission. Although Kaybron's duty to take reasonable steps to safeguard the plaintiff from foreseeable risks of injury was one which was non-delegable, there is no justification in the evidence for finding that Kaybron had breached its duty of care to the plaintiff, so that if it were sued, it would have been found culpable or responsible for either causing, or materially contributing to, the plaintiff's injury.

1. I have reached that conclusion because Kaybron had no power to devise, implement or control Primo's system of work, or to require that the Trust implement changes through its supervisory functions. More particularly, there was no evidence which reasonably suggested that Kaybron could have in any way prevented the trolley in question from being manoeuvred around the workplace where the plaintiff was struck by it.

1. The preponderance of evidence is very much to the contrary of the proposition relied upon by the defendants. In that context, the task of trolley pushing was not one which was the subject of special training. All that was involved was the simple task of pushing trolleys from one location in Primo's premises, to another. The areas and the routes for trolley movements were within the sole discretion and direction of Primo and / or the Trust. The only persons, who could have given Mrs Andjelov directions as to the use of the trolley, were responsible employees of Primo and / or the Trust.

1. That analysis leads me to the inevitable conclusion that since Kaybron had no power or authority to require Primo or the Trust to conduct its operations concerning trolley use in any particular way, or to require changes along the lines suggested by Ms Todd, the defendants have failed to establish any relevant causal nexus between any alleged acts or omissions by Kaybron, to the plaintiff's injury: s 5D and S 5E of the CL Act .

1. Accordingly, I find that the defence raised pursuant to s 151Z(2) of the WC Act must fail, with the result that any assessment of the plaintiff's damages should not be reduced on account of any s 151Z(2) issues as argued by the defendants.

1. In accordance with convention, notwithstanding that I have rejected the s151Z(2) defence, to allow for the possibility that on appeal, it may be found that I have erred in arriving at that conclusion, I propose to briefly state the approach I would have otherwise taken to identify the percentage of any notional culpability of the plaintiff's employer.

1. In weighing the respective culpabilities, it is clear that the employer would have had little if any opportunity to recognize the risk of injury to the plaintiff from moving trolleys sharing pedestrian spaces in the premises. The employer would have had minimal if any sway with Primo to require changes of the kind envisaged by Ms Todd.

1. In those circumstances, I consider that a just and equitable apportionment of the employer's notional responsibility would have been in the range 5 per cent to 15 per cent, and an apportionment at the midpoint of that range, at 10 per cent would have been my alternative finding if the circumstances had compelled the conclusion that Kaybron had been in breach of its duty of care to the plaintiff.

1. Kaybron was entitled to expect that Primo's equipment and premises would be used safely in an orderly system of production. Kaybron was not expected to have foreseen the casual act of negligence by Mrs Andjelov as part of it non-delegable duty. The argument to the contrary seeks to overstate the duty in this case.

1. In contrast, Primo must accept vicarious liability for the casual act of negligence of its own employee, Mrs Andjelov. In addition, Primo's work systems allowed for a potentially dangerous intermixing of pedestrian and trolley traffic within the premises. This rendered it more likely that a collision between a trolley and a pedestrian worker could occur if the person operating the trolley acted in a manner that caused a casual act of negligence to occur, as was the case here. Kaybron could not have exerted any degree of control over those events.

1. In those circumstances, I consider that Primo should bear the entire share of the responsibility for the plaintiff's injury.

Issue 3 - Damages issues

1. Before proceeding to the assessment of damages, it is necessary to resume the factual analysis on some underlying damages issues.

Plaintiff's initial awareness of injuries sustained

1. The plaintiff immediately experienced discomfort in her chest due to compression when she was thrust forward and hard up against the pallet jack handle. She also experienced pain over the length of her spine from the neck down to hip or buttocks level, at which time she felt jarring to her neck and shoulders. When the plaintiff was released from the pressure of that impact she sat down on the floor because she felt pain, dizziness and headache.

Treatment

1. Initial assistance was rendered to the plaintiff by a manager, Mr Vashek Subrt. He took her to the sick bay where a medical attendant gave her some Panadol and an ice pack for her dizziness. The plaintiff was then excused from further work on that day and a friend arrived to take her home.

1. On the day following her injury, the plaintiff was seen by Dr Soukao Ly, a general practitioner. She has remained under his care and has been prescribed rest, painkilling medication, sleeping tablets, investigation scans, physiotherapy and referrals to other practitioners for treatment.

1. Since early August 2006 the plaintiff has been receiving physiotherapy from the Cabramatta Occupational Rehabilitation Centre.

1. On 22 March 2007, some 7 months after the accident, the plaintiff was referred for an x-ray of her right knee.

1. On 26 March 2007 the plaintiff first consulted Dr Loretta Rozario, a rheumatologist. It is not clear whether this consultation was at the referral of Dr Ly. Dr Rozario arranged an MRI scan of the plaintiff's right ankle and foot as well as her back. She also administered cortisone injections to the right ankle.

1. On 4 October 2007, some 13 months after the accident, the plaintiff was referred for an x-ray of her left ankle.

1. In 2007 Centrelink referred the plaintiff to the Vocational Rehabilitation Service at Liverpool Hospital for physiotherapy treatment.

1. On 19 August 2008 the plaintiff first consulted Dr David Manohar, a specialist in occupational and rehabilitation medicine. This consultation was at the referral of Dr Ly. Dr Manohar saw the plaintiff again on 28 October 2008 for management of low back pain and reduced sitting tolerance for ten minutes. Dr Manohar's correspondence to Dr Ly was tendered as part of Exhibit "D". On 20 November 2008 Dr Manohar administered neural blockade injections to the plaintiff's spine at the levels L4/5 and L5/S1 at Liverpool Hospital. Those injections decreased the plaintiff's facet joint pain, improved her sleeping, but she was left with stiffness in the lumbo-sacral spine. Dr Manohar's last letter to Dr Ly is dated 7 October 2009. That letter records ongoing low backache and tightness in the para-lumbar muscles.

1. The plaintiff has been treated and reviewed at Liverpool Hospital for back pain. She has also been assessed and advised by a hospital occupational therapist on the management of her back pain problems.

1. The plaintiff has continued under medical care and continues to take medications for pain relief and to help her sleep.

Claimed disabilities

1. The plaintiff claimed ongoing problems with her neck, her shoulders, her lower back, her right knee and right ankle aggravated by cold temperatures. She also claimed difficulties sleeping. There was doubt as to whether she had injured her right knee and ankle in the incident. That knee had obviously given her trouble in the past.

Medical and allied assessments

1. The plaintiff has been seen by a number of medical and allied practitioners for either treatment or for assessment for the purposes of these proceedings. It was apparent from a reading of the medical and allied reports that were tendered in the proceedings, that the materials tendered did not represent a full complement of reports from all of the practitioners who had examined and treated the plaintiff. The absence of such reports was not explained. In the paragraphs that follow, I set out a factual summary that arises from my review of the limited medical and allied reports that were tendered in evidence.

WorkCover work unfitness certificates - various dates

1. The defendant tendered a series of WorkCover certificates certifying the plaintiff's unfitness for work for the period 1 August 2006 to 4 September 2006. The narrative of the first certificate described the plaintiff as having been struck from behind by a trolley, causing her to be crushed against the handle of another trolley. The injuries upon which based the certificates, were described as being " soft tissue back pain ". The certificates imposed lifting restrictions on the plaintiff. Those certificates were signed by Dr Ly, the plaintiff's general practitioner. Unusually for this type of case, none of the usual reports outlining matters of history, findings on examination or diagnosis that would ordinarily be expected to have been obtained from Dr Ly, were tendered in evidence.

Radiological reports

1. The parties tendered numerous radiological imaging reports. Those reports include x-rays of the chest and the right ankle and foot. Also included were reports on MRI scans of the plaintiff's right ankle, right knee and lumbo-sacral spine. The reports also included a whole body bone tomography scan.

1. The clinical context of the tendered x-rays was not made clear from within the documents. The context of the tomography was described as being polyarthritis. Although that term seems to imply arthritis in multiple locations, no medical evidence was called to establish its meaning and significance in the context of this case. The report, which was dated 3 August 2009, referred to mild to moderate arthritis particularly at the L4/L5 facet joints. Mild degenerative arthritis was described as being present in the end plates in the cervical and thoracic spine. Mild arthritis was also noted to be present in both shoulders and hips. The scan also revealed a possible right ankle ligamentous strain. The cause of that strain was not made clear, although it was possible that when the plaintiff went down to the ground after the incident, such a strain could have occurred. However, that was not her evidence and I do not propose to draw that inference on the state of the evidence.

1. The 27 October 2009 MRI scan of the plaintiff's lumbo-sacral spine revealed a posterior disc bulge, with a central annular tear at the level L5/S1. A subsequent MRI report dated 29 November 2009 identified degenerative disc disease, at the levels L4/5 and L5/S1, and a posterior annular disc bulge with a left lateral annular tear at L5/S1.

Dr J B Stephenson - consultant orthopaedic surgeon

1. On 12 August 2009, at the request of her solicitor, the plaintiff was examined by Dr J B Stephenson, a consultant orthopaedic surgeon. Dr Stephenson reviewed the plaintiff's history and reviewed the relevant imaging reports. Dr Stephenson was of the opinion that the plaintiff had injured her lumbar spine in the incident. He expressed the opinion that the plaintiff was only fit for lighter work, with avoidance of heavy labouring or lifting tasks. He considered the plaintiff was fit for lighter forms of work such as light process work, bench work or surface work not involving heavy lifting activities. Dr Stephenson certified the plaintiff to be permanently restricted to modified lighter duties, avoiding heavy lifting, excessive bending or climbing, on account of her lumbar spine problems. The probability of such work being available to the plaintiff was not the subject of other evidence.

Dr Elias Matalani - consultant occupational physician

1. On 4 November 2009 and again on 8 February 2011, at the request of her solicitor, the plaintiff was seen by Dr Elias Matalani, a consultant occupational physician. Dr Matalani's reports of 4 November 2009 and 22 February 2011 were tendered.

1. After noting the plaintiff's complaints Dr Matalani recorded his findings on examination. These included problems with her neck, depressed bilateral upper limb reflexes, painful and restricted low back movements. There were also some problems noted with standing and squatting. Dr Matalani's initial opinion was that the plaintiff had sustained soft tissue injuries in the affected areas with chronic musculo-ligamentous strain of the neck and back which also produced left shoulder symptoms related to the neck strain. After a period of 3 years following her injury, his opinion was that the plaintiff's longterm prognosis was guarded, with significant remaining symptoms.

1. Dr Matalani was of the opinion the plaintiff was unfit and unsuitable for a range of physical activities associated with her former employment and he expressed the view the plaintiff was virtually unemployable. Dr Matalani did not relate the plaintiff's right knee problems to the injury in question, either as to straight out causation or as an aggravation of an underlying condition. I will further review Dr Matalani's opinion on work restrictions and treatment recommendations under the respective heads of damage to which they relate.

1. Dr Matalani's second report recorded some additional observations of weakness in the legs associated with back pain, neurological deficit was present in the upper limbs, Dr Matalani confirmed his earlier diagnosis and prognosis and expressed the view that the plaintiff's condition was unlikely to change substantially. He reiterated his earlier opinion on the plaintiff's occupational restrictions and updated his treatment recommendations.

Ms Carolyn Grinter - consultant occupational therapist

1. On 23 June 2010, at the request of her solicitor, the plaintiff was assessed by Ms Carolyn Grinter, an occupational therapist.

1. After recounting the plaintiff's history, Ms Grinter observed the plaintiff's physical activities and noted difficulties with walking, standing, sitting, climbing stairs, bending, kneeling, squatting, lifting, carrying and performing bilateral activities above head height.

1. Ms Grinter also noted the plaintiff performed limited housework and was restricted in driving a motor vehicle or travelling as a passenger in a motor vehicle. Ms Grinter made recommendations concerning domestic assistance, which I will analyse separately in relation to the claim for the value of such services.

Dr Loretta Rozario

1. Dr Rozario's records tendered by the defendant included a referral letter from Dr Ly, dated 22 February 2007 as well as letters from Dr Rozario to Dr Ly. That correspondence made no mention of the plaintiff's work injury that is the subject of these proceedings.

1. Dr Rozario's correspondence to Dr Ly made reference to ankle problems, chondromalacia patella of the right knee, problems with both knees, back pain, leg pain, restricted range of movement of the cervical and lumbar spine, absence of neurological deficits in the limbs, and reasonable movements of both shoulders. The above summary is extracted from Dr Rozario's letters that cover the period between 22 February 2007 and 19 January 2010.

1. In view of that time span during which the plaintiff obtained treatment and advice from Dr Rozario, it is surprising that there is no comprehensive report from that doctor concerning the plaintiff's problems. That said, given the absence of any record by Dr Rozario of the plaintiff's injury, no adverse inference arises from the absence of such a report from Dr Rozario because there is no evidence that Dr Rozario was ever asked to consider the historical description of the plaintiff's injury and the relationship between the recorded symptoms and that injury.

Dr Anthony L G Smith - consultant orthopaedic surgeon

1. On 26 May 2010, at the request of the solicitor for the defendant, the plaintiff was examined by Dr Anthony L G Smith, a consultant orthopaedic surgeon. In his report of the same date, Dr Smith reviewed the plaintiff's history, the documents that were provided to him, and he set out his findings on examination. Dr Smith's opinion was expressed in the following terms:

"This woman gives a history that suggests she has a problem with her back, neck, right upper limb, right leg, both ankles and the right knee, which she dates from an incident that occurred at work at Primo when she was crushed between a trolley full of legs of ham and a pallet jack or another trolley. It is likely the injury occurred on or around 1.8.06 - judging from the Initial WorkCover certificate from Dr. Ly.

Her history is that it isn't getting any better and is getting worse with the passage of time.

She was seen 28 days after the injury by Dr. Ly, and certified fit for pre-injury duties on that day. One presumes she must have reported some improvement to him, and I would have thought, in all probability, resolution of symptoms. It would be of some interest to read his clinical notes from that date."

1. There was no evidence that Dr Smith was given the opportunity to review the clinical notes of Dr Ly, in which he had expressed interest.

1. On the question of the probity of the complaints made by the plaintiff, Dr Smith made some critical comments concerning the presentation of the plaintiff, as follows:

"She has degenerative disease in her lumbar spine that is fairly unremarkable for her age and there is no post-traumatic lesion seen in the lumbar spine that one could attribute to the accident that occurred on or around 1.8.06. That type of injury when she is standing up would be unlikely to cause any significant disc lesion in the lumbar spine in any event.

There is no evidence of any significant trauma I would have thought, for she was certified fit for her usual duties 28 days after the accident.

Her examination demonstrates her to have nothing objectively wrong with her. She exhibits a manufactured restriction in the range of movement of the back and the neck. The hypoaesthesia she exhibits in the face, head and upper torso and arm on the right is manufactured. So is the weakness in both upper limbs. There is no organic illness that can produce that pattern of weakness.

It is inconsistent for her to have the restriction in the range of movement she exhibits regarding her shoulders. There is no evidence of any impingement.

It is conceivable she could have suffered some form of bruising to her back and/or chest wall or abdominal wall under the circumstances described in the original letter from Dr. Ly outlining the injury taking place on 1.8.06. I would have thought she has long since recovered. She had probably recovered by the time she was certified fit to resume normal work.

She has ageing changes in her lumbar spine, which is within normal limits. She is in that percent of the population who have knee arthritis."

1. In answering a series of questions posed to him, Dr Smith expressed the prognosis that the plaintiff is going to continue with her symptoms. He also stated as follows:

"Her investigations demonstrate no significant post-traumatic lesion and as far as I can tell she is a normal 51 year old woman. I would have thought she is as fit as any other 51 year old female to engage in her previous occupation with Primo, or any other occupation suitable for women. There isn't any real evidence of any injury to the back, either knee, either ankle, the neck or the shoulder. I would have thought she has been fit for work since August/September 2006."

1. Dr Smith also stated that in his view, there was no restriction in the plaintiff's normal social, recreational, vocational or sporting activities if she wished to engage in them.

1. Significantly, there was no specific self-explanatory statement of the clinical basis or reasons upon which Dr Smith had reached his conclusions that the plaintiff exhibited manufactured restrictions and weaknesses.

Injury findings following resolution of controversy in the medical opinions

1. A conflict emerged from within the medical evidence concerning the nature and extent of the plaintiff's injuries from the incident in question. Unfortunately, the parties left the resolution of that controversy to be determined without oral evidence being called from the respective doctors who gave the opinions in question. I must therefore approach the analysis as best I can on the evidence that was adduced.

1. On one side of the controversy concerning the medical issues, Dr Smith, who only saw the plaintiff on the one occasion on 26 May 2010, expressed the qualified judgment that there is no evidence of " significant " trauma, and he has expressed the view that the plaintiff has manufactured her symptoms. That was a matter that was not put to the plaintiff in cross-examination. Dr Smith also expressed the view that there was " no real evidence " that supported the plaintiff's claims of injury to the back, either knee, either ankle, neck or shoulders. The terms " significant " or " real " were not elaborated upon in Dr Smith's report and were not otherwise explained.

1. On the other side of the controversy within the medical issues, Dr Ly has issued certificates over time supporting the conclusion that the plaintiff suffered a crushing injury to her back and to her chest after being struck from behind by the trolley that had been pushed against her back. In my view, the relatively contemporaneous nature of Dr Ly's certificates, and the plaintiff's evidence of the initial treatment provided by Dr Ly, is persuasive evidence that the plaintiff was injured in the chest and the back, as she has claimed. The radiological evidence indicates that at the very least, the plaintiff had degenerative disc disease in her neck and lower back. The inference is that the trauma may have had some aggravating effect on those underlying problems.

1. Against that background, Dr Stephenson was of the view that the plaintiff had injured her lumbar spine in the incident. Dr Matalani, who saw the plaintiff more than once, on 4 November 2009 and 8 February 2011, accepted that the incident in question caused the plaintiff to suffer soft tissue injuries involving the neck and the back to produce left shoulder symptoms related to the neck injury, and leg weakness related to the back condition. The evidence of Dr Rozario was not contributory to a resolution of the controversy I have identified.

1. I have considered the evidence as summarised above. In considering the controversy in the medical evidence, I have concluded that I should prefer the combined evidence of Dr Ly, Dr Stephenson and Dr Matalani, as I have summarised above, compared to the evidence of Dr Smith. My reasons for that conclusion are as follows.

1. First, it appears from the face of his report, that Dr Smith has approached the assessment of the plaintiff's problems on the basis that the plaintiff's own account of the events of the incident should not be given much weight in the analysis. There could be little other significance of his use of the term " real evidence " than that conclusion.

1. Secondly, unlike Dr Matalani or Dr Ly, Dr Smith has not had the advantage of re-examining the plaintiff over time in order to consider and assess her symptoms in the context of her injury, and by reference to a baseline for observations. In my view the considerable advantage those other doctors had from multiple consultations, should not be lightly discounted.

1. Thirdly, the conclusion drawn by Dr Smith to the effect that the plaintiff was fabricating or manufacturing her symptoms was not one which was put to the plaintiff or to her doctors for a relevant response or for comment. I consider that in those circumstances, I should in fairness, discount Dr Smith's report where he had expressed views to that effect.

1. Fourthly, Dr Smith appears to have based his opinion on the qualified expression " no significant post-traumatic lesion " so far as he could tell. That is an unexplained subjective expression of opinion, the reasons for which have not been adequately articulated as is required by Uniform Civil Procedure Rules 2005, Sch 7, cl 5(c) of the Expert Witness Code.

1. Fifthly, in concluding that there was no " real evidence of injury " in the plaintiff, Dr Smith appears to have discounted entirely the historical evidence of the plaintiff, where, like in the case of a medical history, the evidence given by the plaintiff in the proceedings, was sufficiently real to form a proper basis for arriving at the findings of fact, if accepted. Perhaps Dr Smith was intending to convey the impression that there were no physical signs of injury, but that is not the way I read his report.

1. It would appear that Dr Smith was not given the benefit of the Primo injury report: Exhibit "7". That document provided independent evidence that the plaintiff had been " squashed " between a pallet jack handle in front of her and a metal trolley that hit her from behind and which was loaded with sausages. The report of injury, which had been filled in by the plaintiff's supervisor and a Primo investigator, confirmed the plaintiff had been hit on the back and the shoulders from behind, and had bruising. The report noted that the plaintiff had been given an ice pack to be applied to her head for her resultant dizziness. In my view this is real and contemporaneous evidence of injury that did not appear to have been considered by Dr Smith.

1. I have therefore concluded that I should prefer the medical evidence tendered by the plaintiff to that of Dr Smith. As a consequence, I find that the plaintiff was injured in the incident, in the manner and to the extent she has claimed insofar as the incident caused her to suffer shock, a chest injury and injury over the length of her spine, particularly to her back and neck, and related jolting of her shoulders when she was crushed or " squashed " by the metal trolley.

1. However, I am not satisfied that the plaintiff sustained any knee or ankle injury in the incident. She did not assert anything to the contrary in her evidence. Those latter problems were only investigated well after the incident, and in a context that did not specifically relate to the incident.

Disabilities that remain

1. Having considered and accepted the evidence of the plaintiff in the light of the medical reports tendered by the plaintiff, I am satisfied that the described problems that I have accepted, relate to the work injury in question. I am also satisfied that the plaintiff's account of those injuries and disabilities, as described in her evidence, is reliable. I have therefore drawn upon the summaries of the complaints as recorded in the various reports of the medical examiners in order to identify the full extent of her injuries and disabilities : Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25 per Heydon JA at [70]; s 60 of the Evidence Act 1995.

1. As a result of that analysis, I am satisfied that the plaintiff continues to suffer from neck pain with associated referred pain in her shoulder, and lower back pain, with related weakness in her legs, which significantly restricts her ability to carry out physical activity in both the work and domestic settings. I accept the opinion of Dr Stephenson to the effect that the plaintiff's back problems are consistent with the presentation and the stated cause. I also accept the opinions of Dr Stephenson and Dr Matalani to the effect that the future prognosis for the plaintiff's problems must remain guarded.

1. In respect of those matters, on the basis of her own evidence and the medical evidence, I consider that the plaintiff has discharged the onus of proving the matters I have described in the preceding paragraph: s 5D and s 5E of the CL Act .

1. However, with regard to the plaintiff's complaints of knee and ankle problems, I am not satisfied that the evidence establishes that these were caused by the injury in question.

1. There is evidence that the plaintiff had knee and ankle problems before the subject incident in that an x-ray was required and this was not explained. There was no direct evidence whether the knee injury was an aggravation of an underlying condition or a fresh injury so as to create further disabilities. The plaintiff carries the onus of establishing that, but for the incident in question, the knee problems would not have occurred: s 5D and s 5E of the CL Act .

1. On the state of the evidence, I find that the plaintiff has not discharged the onus of establishing a relevant causal connection between her complaint of knee and ankle problems and the incident in question. Dr Stephenson noted the knee and ankle problems were present before the incident in question. Whilst the plaintiff is recorded as having felt that the injury related lumbar problems accentuated these earlier problems, no medical evidence has been called to establish a relevant causal nexus. This is particularly evident when the radiological reports on the knee and ankle areas are considered.

1. Although at page 7 of his report, Dr Stephenson accepts the relationship between the plaintiff's accident and the injuries sustained, on analysis of the evidence, that opinion cannot be fairly read to refer to the plaintiff's complaints of knee and ankle problems. Dr Matalani took a history that tends to suggest the plaintiff had not suffered any knee or ankle injuries in the incident.

Work effects

1. The plaintiff gave evidence that her injuries had adversely affected her ability to work. She stated that the majority of her pain was in her back. She said her experience of pain prevented her from carrying out the type of heavy duty work she was doing at the time she was injured. She also found that the lighter form of process work she had tried after her injury became too difficult because that work required her to stand up, and this was very painful for her back and her neck. Her standing tolerance is limited to about 15 minutes. She now experiences back pain constantly. She finds it very difficult to negotiate stairs, it interferes with her ability to cook and carry out household tasks. She needs to take medications for pain on most days, as well as sleeping tablets due to an inability to sleep. As a result of these things, she has become emotionally very unhappy. These matters have had an obviously deleterious effect on the plaintiff's ability to work.

1. When Dr Stephenson saw the plaintiff in 2009, he thought it was reasonable that she should avoid heavy lifting activities and he foreshadowed the need for yard, garden and home care assistance. At that time Dr Stephenson thought the plaintiff was fit for lighter type duties of work, but avoiding heavy lifting. He did not specify the degree to which any of those restrictions were due to the unrelated knee and ankle problems.

1. When Dr Matalani saw the plaintiff in 2009, and again in February 2011, he considered that her injury had adversely affected her manual abilities. In that regard, at page 22 of his 22 February report, he stated:

" Fitness for Work:

Mrs. Seng is unsuitable for work requiring the following activities:

• Repetitive bending and twisting of the spine.
• Prolonged uninterrupted sitting.
• Prolonged walking and prolonged standing.
• Heavy manual handling activities.
• Sustained flexion or extension of the neck.

She is therefore unable to return to her pre-injury employment as a packer since it requires prolonged standing and repetitive bending of the neck and back to pick up various items from below waist level. She was expected to lift heavy containers of sausage and meat, push heavy trolleys and bins and general heavy manual handling activities.

She is likely to have difficulties obtaining suitable employment in the open labour market because of her considerable lack of skills and multitude of physical restrictions. Her English is very weak and her educational history is quite restricted. She only worked in unskilled occupations and is likely to find it very difficult to obtain suitable employment in the open labour market.

She has developed a chronic pain syndrome and unless she is able to obtain work within the above restrictions or a virtually "tailor-made" position, to allow her to alternate between sitting and standing regularly and avoid aggravating activities, in her current condition she is practically unemployable."

1. Based upon the opinions of Dr Stephenson and Dr Matalani, which I have cited above, I accept that the plaintiff has, by reason of the subject injuries, become practically unemployable, which requires that an assessment be made of damages for loss of earnings and loss of earning capacity as I also accept that the plaintiff has been unable to return to her work as a result of her disabilities. There is no issue arising from the evidence concerning any alleged failure to mitigate.

1. This still leaves open the question of the degree to which, if at all, the plaintiff's knee and ankle problems are responsible for that situation. I shall return to that question when identifying my assessment of non-economic damages.

Domestic activities affected

1. Based upon the opinions of Dr Stephenson and Dr Matalani, consistent with my finding on the work effects of the plaintiff's injuries, I also conclude that the difficulties that stand in the way of the plaintiff being gainfully employed, also carry over into the domestic setting, and also adversely affect her ability to carry out her domestic activities. I will return to this issue when setting out my reasons for assessment of the plaintiff's entitlement to damages. As with the question of work restrictions, the same questions I have identified concerning the knee and ankle problems, also apply to the question of domestic assistance.

Issue 4 - Assessment of damages

1. In the paragraphs that follow, after identifying the plaintiff's probable life span for the purpose of assessing damages, I will proceed to assess each of the heads of damage which the plaintiff seeks to have assessed in these proceedings.

Life span

1. An assessment of some components of the plaintiff's entitlement to future damages first requires an assessment of the years that probably remains for the plaintiff. Having regard to the current prospective life tables, at age 52, this being the plaintiff's age at trial and, in the absence of any medical or other evidence suggesting the plaintiff may have a decreased life span, I assess the plaintiff's probable life span to be in the rounded down statistics based figure of a remaining 36 years. The 5 per cent multiplier for 36 years is 884.8

Non-economic loss

1. On behalf of the plaintiff it was submitted that the level of her injuries and the resultant disabilities warrant an award equivalent to 33 per cent of a most extreme case, pursuant to s 16 of the CL Act 2002. The current indexed amount for s 16 damages is $171,500. At the time the submissions were made, the indexed amount for 33 per cent of a most extreme case was $156,500. In contrast, the defendant submitted that the plaintiff's situation does not meet the statutory threshold for the award of any s 16 damages for non-economic loss.

1. In my view, the plaintiff has suffered a very significant deleterious impact upon her ability to enjoy the amenity of her life. She has and continues to experience a level of pain and discomfort in the neck and constant pain in her lower back. She has related problems in her shoulder, and weakness in her legs. As a result she has significant restrictions in her work, her domestic and leisure activities. She also suffers from resultant difficulties with sleep and emotional distress.

1. In making my assessment, I have not included any allowance for the specific problems the plaintiff has experienced regarding her knee and ankle problems in view of the state of the medical evidence and the difficulty relating those problems to the plaintiff's injury. Those exclusionary comments do not apply to the plaintiff's complaint of weakness in the legs, which are in the opinion of Dr Matalani, injury related.

1. Nevertheless, the medical opinions I have accepted, are to the effect that the plaintiff has been deprived of her earning capacity, which is an important feature of her amenity of life. Whilst she will be separately compensated for her loss of earning capacity, the loss of the ability to earn has a significant impact on the amenity of life, and the satisfaction obtained from exercising an earning capacity. Balanced against that, as a result of the award of damages the plaintiff will receive from these proceedings, she will not be burdened by the need to work. However, she will continue to suffer pain.

1. Taking into account the evidence of the plaintiff which I have accepted, and taking into account the medical opinions of Dr Stephenson, Dr Matalani, and the occupational therapy assessment of Ms Grinter, which also supports the conclusion that many aspects of the plaintiff's amenity of life have been adversely affected by her injuries, I consider that the submitted assessment of 33 per cent impairment is an appropriate one to compensate the plaintiff. This results in an assessment for non-economic loss is the amount of $171,500.

1. I therefore assess the plaintiff's damages for non-economic loss in the amount of $171,500.

Past economic loss

1. On behalf of the plaintiff, it was submitted that the appropriate amount to compensate the plaintiff for her past loss of earnings was in the net amount of $146,880.46. In contrast, the defendant submitted that the plaintiff was not entitled to any damages for past economic loss.

1. After her injury, the plaintiff was initially absent from her work for about 2 days. Following her return to work from that absence, and due to the effects of her injuries, she was assigned to light duties, which she continued to carry out for a period of about a month. In that time, the plaintiff found she was unable to continue work to the same level of her previous hours of work, which included substantial overtime, where she was at times working a 10 hour day during the week including overtime, and up to 8 hours per week of overtime on weekends.

1. In that context, the plaintiff gave unchallenged evidence, which I accept, that on behalf of her employer, Mr Subrt had told her that if she was not going to work overtime, she should not return to work. As a result, the plaintiff did not return to her work at the Primo factory in September 2006. Instead, she found alternative light work in a factory at Warwick Farm. That work required her to stand, and she found herself unable to continue in that work for more than 3 days. This was claimed to be as a result of her injuries at the Primo premises on 1 August 2006 but the medical evidence does not support that view. The degree to which, at that time, the plaintiff's problem with standing was due to the underlying condition of the plaintiff's knee and ankle problems was left unexplained.

1. The plaintiff has not been able to resume any work since that time, on account of the injuries to the back and neck, and the resultant disabilities, which I have accepted. That position is supported by the opinion of Dr Matalani, which I have accepted.

1. I also accept the plaintiff's evidence to the effect that she liked her pre-injury job, and would have continued to work in her job with Primo until her retirement, which I assess to be the standard pensionable age for female workers, namely 60 years.

1. On behalf of the plaintiff it was submitted that it was probable that the plaintiff would have continued to work in her pre-injury employment, or similar employment, until the time of the hearing. In support of that submission the plaintiff prepared a schedule which was based on her pre-injury net earnings of $574 per week, which included calculations based on CPI increments to yield a calculation of claimed economic loss of $146,880.46 for lost earnings between 1 October 2006 and 31 May 2011.

1. Given the plaintiff's pre-injury levels of overtime, I consider that schedule sets out a reasonable and conservative method by which to assess the value of the plaintiff's past loss of earnings to the date of the trial. However, I have adjusted the plaintiff's schedule to reduce it to take the calculation to 11 April 2011, rather than to 31 May 2011, as the trial commenced on 11 April 2011. The adjusted schedule appears as Appendix I to these reasons. The result of that adjustment has the effect of reducing the amount of the plaintiff's claim from $146,880.46 to $142,253.78.

1. I consider that the foregoing calculation requires a further downward adjustment to reflect the uncertainty as to whether the plaintiff would have been offered, and would have continued to undertake, her pre-injury levels of overtime over the entire period until the commencement of the trial.

1. In my view, the calculation of past economic loss must also be significantly discounted to reflect the emergent effect on her earning capacity, of the plaintiff's knee and ankle problems.

1. Although the unchallenged evidence was that the plaintiff was coping with her work without difficulty at the time of her injuries, she nevertheless had pre-existing underlying knee and ankle problems, which I infer from the radiological evidence. As there is no evidence that she incurred any knee or ankle injuries in the incident, it is unsafe to approach the matter of assessment on the basis that the plaintiff must be taken as she is found, and that the accident must be seen as the material contributing factor giving rise to the plaintiff's impairment of earning capacity so as to, in this case, shift the burden to the defendant to call evidence to untangle what level of disability is due to the injury in question, and what level of disability is due to the underlying condition along the lines of the conventional common law authorities: Watts v Rake [1960] HCA 58; (1960) 108 CLR 158 ; Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164 .

1. Instead, the plaintiff is required to prove a relevant causal connection, and the evidence does not permit that conclusion: s 5D and s 5E of the CL Act 2002.

1. That said, in the absence of explanatory medical evidence I must make some assessment as best I can of the degree of attribution of the respective problems because it would be unsatisfactory to simply make no assessment.

1. In the circumstances, I consider that great weight should be placed on the fact that at the time of her injury the plaintiff was coping with her work without any reported knee or ankle symptoms. A range of inferences arises from that fact: the plaintiff would not have been able to continue to cope in that manner for some period of time either without difficulty; the plaintiff may have been able to cope with difficulty, but not to a sufficient degree of difficulty to stop her from working, or alternatively, at the other end of the spectrum of possibilities, a degree that was sufficient to stop her from working.

1. One cannot simply ignore the knee and ankle problems as contributory causes for the plaintiff's inability to work. In the absence of explanatory medical evidence, I consider the approach that is fair to both sides, is to select a discount factor to reflect the potential vicissitudes posed by the underlying ankle and knee problems.

1. I therefore consider that a discount of the order of 50 per cent on account of those past vicissitudes is warranted. This reduces the amount calculated in Appendix I to a rounded down amount of $71,000.

1. In coming to that conclusion I have considered the submissions made on behalf of the defendant to the effect that on the defendant's interpretation of the medical evidence, the plaintiff had no relevant incapacity for work. That view was based upon the limited evidence of Dr Rozario, whose comments were to the effect the plaintiff was unable to work because of the need to avoid kneeling, squatting and climbing. Those views were founded upon Dr Rozario's examination of the plaintiff in 2007. The defendant's position on this issue was based on that evidence. The submission was that the plaintiff was not entitled to damages for economic loss because non-injury related matters were adversely impacting upon her inability to perform her pre-injury work. In that regard, I found the evidence of Dr Matalani more compelling because his report was comprehensive, and because it was based on more than one consultation, and it was supported by reasons.

1. I have concluded that the defendant's submission in that regard should not be accepted because it fails to have any regard to the opinions of Dr Matalani, which I have accepted.

1. I therefore assess the plaintiff's damages for past economic loss in the amount of $71,000.

Future economic loss

1. On behalf of the plaintiff, it was submitted that consistent with the opinion of Dr Matalani, she is for practical purposes, virtually unemployable. In support of that submission it was pointed out that the plaintiff is now in receipt of a disability pension, and she is unlikely to return to the workforce.

1. The plaintiff submitted a quantification of the claim for future loss of earning capacity in the sum of $270,971.26. That amount was identified as being the product of projecting the CPI increased amount of $634.66 per week net at 5 per cent over a remaining working life of 13 years, and discounted by 15 per cent for vicissitudes.

1. In contrast, the defendant submitted that no damages should be awarded for future loss of earning capacity. The defendant's submission was based on an analysis of the medical evidence, and the medical findings including concerning the later emerging knee and ankle problems.

1. In that regard there is an aspect of the defendant's submission that has some force, for the same reasons that I have discounted the claim for past loss of earnings. However, for the same reasons, I do not accept the defendant's submission that no damages should be awarded for the future loss of earning capacity.

1. Turning to the task of assessment, I consider that the submission on behalf of the plaintiff overstates the likely true position.

1. Were it not for the causation questions left open and unanswered concerning the plaintiff's knee and ankle problems, the plaintiff's submitted methodology for assessment would be entirely appropriate. However, that cannot be the case.

1. For the same reasons by which I have analysed and assessed the claim for past loss of earning capacity, I have concluded that it would be fair to both parties that I approach the assessment of future loss of earning capacity in the same manner as I have approached the assessment of past economic loss.

1. Before giving effect to that calculation it is necessary to deal with the overtime component of the weekly sum for projection.

1. In my view it would have been very unlikely that at her present age, the plaintiff would have been able to sustain long hours of overtime for the remainder of her working life, having regard to the fact that her knee and ankle problems were liable to cause her problems as she aged, notwithstanding her strong work ethic. There is an additional factor, namely the question of whether the overtime would have been continued to be offered, either in her pre-injury employment or some other employment.

1. I am conscious of the general need to avoid double or multiple discounts on account of potential adverse vicissitudes, however, on the facts shown to exist in this case, I consider this case to be an exception to that general rule. I consider that there should be a discount factor of 25 per cent applied on account of these latter outcome considerations before the 50 per cent discount is applied on account of the causation and related considerations.

1. The amount of $634.66 per week net, when discounted by 25 per cent, yields the sum of $476 per week net.

1. Applying those findings to the mechanics of assessment, the projection of $476 per week net, at 5 per cent over a remaining 13 years (x 502.3) less 50 per cent for vicissitudes yields an amount of $119,547.

1. I therefore assess the plaintiff's damages for future economic loss in the amount of $119,547.

Past loss of superannuation

1. Consistent with my finding that in the period between 1 October 2006 and the date of the hearing the plaintiff has lost earning capacity in the sum of $71,000, it is necessary to assess the value of the past loss of employer funded superannuation benefits. The convention is that in the absence of actuarial evidence of that loss, 11 per cent of the net sum awarded for past loss of earning capacity is taken to represent the loss for this head of damage. Accordingly, 11 per cent of $71,000 is the equivalent of $7,810.

1. I therefore assess the plaintiff's damages for past loss of superannuation in the amount of $7,810.

Future loss of superannuation

1. Consistent with my findings in respect of past net employer funded superannuation losses it is necessary to assess the value of the loss to the plaintiff of future employer funded superannuation benefits, I apply a similar convention of 11 per cent of the net sum awarded for future loss of earnings to represent the loss for this head of damage. Accordingly, 11 per cent of $119,547 is the equivalent of $13,150.

1. I therefore assess the plaintiff's damages for future loss of superannuation in the amount of $13,150.

Past domestic assistance

1. On behalf of the plaintiff it was submitted that the evidence justifies an award of damages for past domestic assistance in accordance with s 15(4) of the CL Act 2002, in an amount of $152,796.13.That claim was based upon a calculation of 7 hours per week of domestic assistance from the time of the injury until the time of the trial, which was submitted to be 244 weeks.

1. In contrast, the defendant submitted that the plaintiff should not receive any award of damages for past domestic assistance because, it was submitted, an analysis of the evidence discloses that the statutory thresholds for such damages have not been satisfied either as to need or as to the number of hours required: s 15(2) and s 15(3) of the CL Act 2002.

1. I do not accept the proposition that the plaintiff had no reasonable need for the assistance provided to her. I consider that her level of disability was not overstated, and the assistance she described in her evidence was reasonably required and in the main, would not have been required but for her injury: s 15(2) of the CL Act 2002. I also considered that the claimed amount of 7 hours per week is reasonable and satisfied the statutory threshold: s 65(3) of the CL Act 2002.

1. Although I consider that the assessment of 7 hours per week of domestic assistance represents a reasonable analysis of the evidence, I nevertheless consider that the defendant's submission on the issue of past domestic assistance should be accepted, for the reasons that follow.

1. Whilst I am satisfied that the plaintiff received the benefit of an average of 7 hours per week domestic assistance from the time of her injury until the time the hearing commenced, I consider that the evidence does not reasonably permit an analysis that the domestic assistance in question was " solely because of the injury to which the damages relate ": s 15(2)(b) of the CL Act 2002. This is because to a degree, that assistance was required on account of the unrelated knee and ankle problems.

1. Notwithstanding that the plaintiff's injury related problems have given rise to a need for assistance, the knee and ankle problems are also likely to contribute to the need for assistance. I therefore conclude that contribution of the non-injury related problems must be substantial, and not nominal.

1. In my assessment, when a substantial and not nominal discount is applied to this head of damage, a real doubt emerges as to whether the post-discount estimate of the number of hours of domestic assistance due to the injury related factors excluding the knee and ankle problems, meets the minimum statutory threshold of 6 hours per week for 6 months: s 15(3) of the CL Act 2002. In my view, it does not. A substantial discount would have to be greater than 20 per cent, which does not meet the threshold of 6 hours per week: s 15(3) of the CL Act 2002.

1. I therefore conclude the plaintiff has not established causation of loss with respect to the claim for past domestic assistance: s 5D of the CL Act 2002.

1. To allow for the possibility that on appeal, my reasoning in this regard may be held to be incorrect, in accordance with convention, I have set out the value of 7 hours per week of domestic assistance over 244 weeks at the rate prescribed by s 15(5) of the CL Act 2002, namely $40,086, as calculated in Appendix II to these reasons.

1. On the basis of the foregoing reasons, I decline to make any award for damages for past domestic assistance.

Future domestic assistance

1. The plaintiff made a claim for 7 hours of future domestic assistance at $24.67 per hour or $172.69 per week over her remaining life span of 36 years (x 884.8) which yields $115,220. The hourly rate of $24.67 was the published s 15 CL Act rate at the time. Appendix II shows that the current s 15 rate is $25.64, which yields a projection of $179.48 per week to yield $158,803 when calculated at that current rate.

1. The defendant submitted that no allowance should be made for this head of damage, arguing that the claimed need did not arise solely as a result of the injury in question.

1. Although I have accepted the defendant's submission as to past domestic assistance and as a result of the application of the s 15(3) threshold, and this has resulted in no allowance being made for past domestic assistance, it must be recognised that the issue of future assistance is not subject to that threshold.

1. This still leaves open the question as to the extent to which the non-injury related need for assistance due to the knee and ankle problems can be isolated from the intermixed need for assistance that has arisen due to the injuries which are the subject of this claim.

1. Absent a defined or identifiable evidentiary basis for separating out these elements that go to make up a total need for 7 hours of assistance, I consider that an apportionment approach that may appear arbitrary is preferable to making no attempt at all to apportion between the injury and non-injury related need for domestic assistance.

1. Accordingly, opting for the latter approach, I propose to take a similar approach to that taken with respect to the claim for loss of earnings. I therefore allocate half of the claimed hours claimed for future domestic assistance to the effects of the plaintiff's injury. I consider that the allowance should extend over the plaintiff's remaining life span because the prognosis for the plaintiff's injury related problems, according to Dr Matalani, is guarded and is therefore unlikely to improve. I accept that opinion.

1. The projection of 3.5 hours of future domestic assistance per week at $25.64 per hour, or $86.24 per week, at 5 per cent over 36 years (x 884.8) yields an amount of $76,305.

1. I therefore assess the plaintiff's damages for future domestic assistance in the amount of $76,305.

Future out-of-pocket expenses

1. The plaintiff made a claim for future out-of-pocket expenses in the sum of $13,830.92. That claim comprised the cost of painkilling medication at $40 per month, an attendance at a general practitioner every 4 months and a course of 12 physiotherapy sessions for the next 2 years. That claim is based on the unchallenged evidence of Dr Matalani, as set out at pages 5 and 6 of his report dated 22 February 2011. At page 2 of Dr Matalani's report he makes it clear that he was considering the plaintiff's symptoms of back and neck pain and associated problems, and not the knee or ankle problems.

1. Accordingly, I am satisfied that the plaintiff has made out her claim for future treatment expenses: s 5D of the CL Act 2002. However, I propose to round the figure down to the sum of $10,000 in recognition of the fact that on the evidence, precision is not possible in the assessment of this head of damage.

1. I therefore assess the plaintiff's damages for future out-of-pocket expenses in the amount of $10,000.

Past out-of-pocket expenses

1. The plaintiff makes a claim for past out-of-pocket expenses in the total amount of $3448.90. The defendant conceded only $241.60 in respect of such expenses. The evidence does not permit a reasoned analysis that separates the knee and ankle related out-of-pocket expenses from the injury related expenses. In those circumstances I propose to follow the same course that I have taken with the claim for loss of earning capacity and future domestic assistance, and allow 50 per cent of the amount claimed. I therefore assess the plaintiff's damages for past out-of-pocket expenses in the amount of $1224.

Summary of damages assessment

1. My assessment of the Plaintiff's damages is summarised as follows:

(a) Non-economic loss	$171,500
(b) Past economic loss	$71,000
(c) Future economic loss	$119,547
(d) Past loss of superannuation	$7,810
(e) Future loss of superannuation	$13,150
(f) Past domestic assistance	$Nil
(g) Future domestic assistance	$76,305
(h) Future out-of-pocket expenses	$10,000
(i) Past out-of-pocket expenses	$1,224
Total	$470,536

Disposition

1. The plaintiff has succeeded in her claim and has established her case against the defendants as well as an entitlement to a damages assessment in the sum of $470,536. There is no basis for a reduction of the plaintiff's damages on account of s 151Z(2) of the WC Act .

Costs

1. In those circumstances she is entitled to an order that the defendant pay her costs on the ordinary basis, absent any evidence justifying a different costs order. I propose to allow liberty to apply to vary the costs order I make should the circumstances call for a variation to be made.

Orders

1. I make the following orders:

(1)   Verdict and judgment for the plaintiff against the first and second defendants in the sum of $470,536;

(2)   The defendants are to pay the plaintiff's costs of the proceedings on the ordinary basis, unless otherwise ordered;

(3)   The exhibits may be returned;

(4)   Liberty to apply on 7 days notice if further orders are required.

APPENDIX I

SCHEDULE OF CLACULATION FOR PAST ECONOMIC LOSS

(Based on average income $574 net per week as at August 2006)

Date range	Amount	No of weeks	CPI increase	Total
01.10.06 - 30.06.07	$574.00	38.90	N/A	$22,328.60
01.07.07 - 30.06.08	$583.76	52.00	1.7%	$30,355.42
01.07.08 - 30.06.09	$608.86	52.00	4.3%	$31,660.72
01.07.09 - 30.06.10	$616.77	52.00	1.3%	$32,072.04
01.07.10 - 31.05.11	$634.66	40.71	2.9%	$25,837.00
Total	$142,253.78

APPENDIX II

CALCULATION OF VALUE OF PAST GRATUITOUS DOMESTIC ASSISTANCE / CARE ACCORDING TO CIVIL LIABILITY ACT 2002, s 15

[7 hours per week]

PERIOD	WEEKS	WEEKLY s.15 RATE	HOURLY s.15 RATE	AMOUNT FOR 7 HOURS PER WEEK
1	03.08.2006 to 18.08.2006	02.14	$868.90	$21.72	$325.36
2	19.08.2006 to 17.11.2006	13.00	$884.00	$22.10	$2011.10
3	18.11.2006 to 17.02.2007	13.00	$892.30	$22.30	$2029.30
4	18.02.2007 to 18.05.2007	12.71	$916.10	$22.90	$2038.09
5	19.05.2007 to 18.08.2007	13.00	$918.90	$22.97	$2090.27
6	19.08.2007 to 16.11.2007	12.85	$929.70	$23.24	$2156.10
7	17.11.2007 to 15.02.2008	12.85	$929.30	$23.23	$2089.53
8	16.02.2008 to 16.05.2008	12.71	$937.80	$23.44	$2085.45
9	17.05.2008 to 15.08.2008	12.85	$921.60	$23.04	$2072.44
10	16.08.2008 to 21.11.2008	13.85	$933.50	$23.34	$2262.81
11	22.11.2008 to 20.02.2009	12.85	$938.50	$23.46	$2110.22
12	21.02.2009 to 15.05.2009	12.00	$946.40	$23.66	$1987.44
13	16.05.2009 to 21.08.2009	13.85	$939.00	$23.48	$2276.38
14	22.08.2009 to 20.11.2009	12.85	$959.90	$23.99	$2157.90
15	21.11.2009 to 19.02.2010	12.85	$969.40	$24.23	$2179.48
16	20.02.2010 to 21.05.2010	12.85	$989.90	$24.74	$2225.36
17	22.05.2010 to 20.08.2010	12.85	$986.90	$24.67	$2219.06
18	21.08.2010 to 19.11.2010	12.85	$985.50	$24.63	$2215.46
19	20.11.2010 to 18.02.2011	12.85	$996.40	$24.91	$2240.65
20	19.02.2011 to 11.04.2011	7.28	$1025.90	$25.64	$1306.61
TOTAL	$40,086.01

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Decision last updated: 23 November 2011