Shoalhaven City Council v Humphries

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Shoalhaven City Council v Humphries [2013] NSWCA 390
Hearing dates: 23 August 2013
Decision date: 22 November 2013
Before: Barrett JA at [1];
Leeming JA at [2];
Tobias AJA at [12].
Decision:
(1) Appeal allowed in part.
(2) Set aside Order 1 made by his Honour Judge Levy SC on 23 November 2012.
(3) Judgment for the respondent in the amount of $733,369.59.
(4) The appellant to pay 90 per cent of the respondent's costs of the appeal.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords: TORTS - damages - workplace injury - whether primary judge erred in evaluation of medical evidence - whether assessment of damages for future medical expenses and domestic assistance excessive - whether damages ought to have been reduced pursuant to Workers Compensation Act 1987, s 151Z
Legislation Cited:
Civil Liability Act 2002, s 15
Workers Compensation Act 1987, s 151Z
Occupational Health and Safety Regulation 2001, cl 77
Uniform Civil Procedure Rules 2005 ("UCPR") Sch 7, cl 5(c)
Work Health and Safety Regulation 2011, cl 76
Cases Cited: Andar Transport Pty Ltd v Brambles Ltd [2004] HCA 28; (2004) 217 CLR 424
Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588
K & M Prodanovski Pty Ltd v Calliden Insurance Limited [2012] NSWCA 117; (2012) 60 MVR 456
Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99; (2008) 172 IR 453
Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164
TNT v Christie [2003] NSWCA 47
Watts v Rake [1960] HCA 58; (1960) 108 CLR 158
Category: Principal judgment
Parties: Shoalhaven City Council (Appellant)
Kevin Humphries (Respondent)
Representation: Counsel:
Mr R S Sheldon SC (Appellant)
Mr B G McManamey (Respondent)
Solicitors:
DLA Piper (Appellant)
Slater & Gordon Lawyers (Respondent)

File Number(s): 2012/384390
Decision under appeal

Jurisdiction:

9101

Citation:

Humphries v Shoalhaven City Council [2012] NSWDC 216

Date of Decision:

2012-11-23 00:00:00

Before:

Levy SC DCJ

File Number(s):

2011/83900

Judgment

BARRETT JA: For the reasons stated by Tobias AJA (and amplified, as to one aspect, by Leeming JA), orders should be made as Tobias AJA proposes.

LEEMING JA: I have enjoyed the considerable advantage of reading the judgment of Tobias AJA in draft. I agree with his Honour's reasons and conclusions. I wish to elaborate one aspect, namely, why I agree that there was no error on the part of the primary judge in failing to find that Mr Humphries' employer (a labour hire company) (employer) had breached its duty of care to him. His Honour's review of the evidence and findings enable me to do so concisely.

The primary judge proceeded on the basis that there was insufficient evidence to find that the employer "either knew or ought to have known the plaintiff's labour would be deployed in heavy lifting tasks" by Shoalhaven City Council (Council): at [217]. As Tobias AJA observes, there is good reason to doubt that approach. The evidence, although scanty, established that prior to sending Mr Humphries to work with Council, his employer "put me through a course to get my confined spaces ticket", and it follows that, at the least, his employer ought to have known that one aspect of Mr Humphries' work would be lifting manhole covers.

Council asserted that any damages recoverable against it were liable to be reduced in accordance with s 151Z(2)(c) of the Workers Compensation Act 1987. Where as here no claim was being made in the proceedings by the employee against the employer, the onus lay upon Council to establish that the employer had breached its duty to Mr Humphries: the authorities are collected in Pollard v Baulderstone Hornibrook Engineering PtyLtd [2008] NSWCA 99; (2008) 172 IR 453 at [32]. The following three matters lead me to conclude that Council failed to discharge the onus it bore.

First, there was no evidence squarely directed to the content of the course Mr Humphries undertook prior to working for the Council. The primary judge found that his employer had not trained Mr Humphries in safe lifting techniques: at [215]. When the appeal was heard, counsel were unable to identify any evidentiary basis for that finding, save perhaps for when Mr Humphries was asked in chief whether he was given training on manual handling techniques, to which he answered, "No". However, although there is scope for ambiguity in the question and answer, the natural way of reading the evidence is that it was confined to whether he was given training by Shoalhaven City Council. The evidence was led in chief, and the plaintiff's counsel had previously directed questions to training given by his employer, and had moved to a new topic. Most importantly for present purposes, the issue was not the subject of any cross-examination by the party in whose interest it was to prove the employer's failure to train.

Moreover, as Tobias AJA notes, the Occupational Health and Safety Regulation 2001 (to which the primary judge did not refer and may not have been taken) imposed an obligation to provide training "in all relevant activities relating to entering and working in or on the confined space": cl 77(1), emphasis added. And there was unchallenged expert evidence that "[o]ne might reasonably expect that there would be no employer in the 21st century who would be unaware of the basics of manual handling safety".

It may seem unsatisfactory for the content of the course to be a matter of inference, when direct evidence could readily have been led on the issue. Either the course which Mr Humphries was put through by his employer included training as to the risks posed by entering confined spaces, which would include lifting heavy manhole covers, did include training on the techniques to open manholes, or it did not. In my view it was open to infer that it did. The course may be expected to have complied with cl 77 of the regulation, and lifting a heavy manhole cover was undoubtedly a relevant activity relating to entering a confined space. But what presently matters is that Council, which bore the onus on this issue, did not demonstrate that Mr Humphries' employer had not caused him to be trained in the safe lifting of heavy manhole covers.

Secondly, there was no evidence adduced by Council of any steps taken by Mr Humphries' employer to inquire or investigate whether Council was providing a safe system of work. A positive obligation lay upon his employer to do so; the High Court described it as an "independent obligation to satisfy itself of the safety of the system": Andar Transport Pty Ltd v Brambles Ltd [2004] HCA 28; (2004) 217 CLR 424 at [57]. Once again, either the employer took positive steps to do so or it did not, but the onus remained on Council to demonstrate what the employer did and how that failed to discharge its duty. If as here Council adduced no evidence at all as to what the employer did, it could not discharge its onus in this respect.

Thirdly, there are the unchallenged findings of the primary judge that (a) the Council did not fail to maintain a safe system of work: at [163], (b) there was no general inadequacy in the provision of manual and mechanical assistance: at [166], and (c) there was a one-off failure by Mr Gillard in detecting the actual weight of the manhole cover on the particular occasion: at [178]. And the evidence was that Council had written policies about manual lifting, a failure to comply with which was "a matter that management would take seriously". As Tobias AJA observes, a person making inquiries would have learned that the Council had a system which included a mechanical lifting device. That system included a site-specific form requiring identification of 19 categories of hazards, the second of which was "Manual Handling", whose first entry in which was whether it was appropriate to use a control measure such as a lifting aid.

In those circumstances, the finding of no breach by the employer should stand. It was for Council to adduce evidence (a) as to the content of the course the employer put Mr Humphries through, (b) as to the inquiries the employer made with Council as to Council's safe system of work, such that (c) the employer failed to discharge its obligation to satisfy itself there was a safe system. Council ran the trial on the basis that Mr Humphries was under its direction and control and that it was not negligent; it is unsurprising that it did not, for forensic reasons, advance a case in the alternative that its procedures were so patently defective that the employer was negligent in not seeing that more should have been done.

For those additional reasons, as well as those given by Tobias AJA, I agree with the substantive orders proposed by Tobias AJA. I also agree with his Honour's proposed order as to the costs of the appeal.

TOBIAS AJA: On 22 February 2008 the respondent, Mr Kevin Humphries, sustained injuries to his back and shoulder whilst performing work ("the 2008 work incident") for the appellant, Shoalhaven City Council ("the Council"). At that time he was, and had been since 1999, employed by Campbell Page Labour Hire ("the employer"), a labour hire company.

In early 2008 the respondent was assigned by the employer to work for Shoalhaven Water, an arm of the Council, attending to the opening, inspection and clearing of sewerage main manholes and, if required, choked sewerage mains. These activities naturally required the removal of the manhole covers. The respondent received no particular training for this task, but was under the direction of a Council supervisor in charge of the respondent's work detail. In the present case that was a Mr Brian Gillard.

The respondent instituted proceedings against the Council claiming damages. The primary judge, Levy DCJ, found that the Council had breached its duty of care to the respondent and awarded him damages which he assessed in the sum of $753,369.59: Humphries v Shoalhaven City Council [2012] NSWDC 216. In so doing, his Honour rejected a submission on behalf of the Council that the damages should be reduced pursuant to s 151Z(2) of the Workers Compensation Act 1987 ("WC Act") as a consequence of a breach by the employer of its duty of care to the respondent.

The Council challenges in this Court his Honour's finding with respect to the application of s 151Z(2) as well as his approach to the assessment of damages, in particular, his rejection of what is said to be the unchallenged and uncontradicted evidence of Dr Thomas Silva, a consultant orthopaedic surgeon retained by the Council. It also challenges his Honour's assessment of out-of-pocket expenses and domestic assistance. No challenge is made to the primary judge's finding of negligence on the part of the Council.

The Facts Relating to the Accident

The evidence relating to the occurrence of the accident was given by the respondent and his supervisor, Mr Gillard. His Honour accepted the evidence of the former, finding that his evidence was credible on its face and not inherently improbable. It is appropriate to summarise his Honour's findings (at [28]-[32]) with respect to the respondent's evidence as to how he sustained his injuries, as those findings are relevant to the s 151Z issue on the appeal.

On the morning of 22 February 2008, the respondent and his supervisor, Mr Gillard, were carrying out sewerage inspection and maintenance work at a site at St Georges Basin. After lunch Mr Gillard decided that they should inspect some sewer mains on Council owned property by removing their manhole covers as part of preventative maintenance against potential sewer chokes in the area.

The manholes in question were located on open ground that was relatively level and firm, such that the truck they were using was able to be driven upon it. The truck had a crane fitted to it which could be utilised to lift heavy manhole covers. Although the Council utilised manhole covers of several types, weights and sizes, that which Mr Gillard required the respondent to lift on this occasion was a large concrete manhole cover that weighed between 75 and 85 kilograms.

In order to lift the concrete cover of the manhole in question, the respondent first went to the truck that he and Mr Gillard were using. He obtained a lifting tool known as a T-bar, which comprised a long steel rod with a key-like appearance at one end and a lateral T-shaped bar section at the other. When the key end was inserted into a slit on the manhole cover and turned so that it would engage, the T-bar enabled the manhole cover to be lifted using a vertical manual lifting force applied to the T-shaped handle section of the tool.

At the time, the respondent was a fit and strong man and accustomed to hard physical work. In compliance with Mr Gillard's request he placed his feet in a bracing position around the perimeter of the manhole, engaged the key end of the T-bar with the manhole cover, and proceeded to apply an upward lifting force. As he did so the manhole cover did not dislodge as, apparently, it had become jammed as a consequence of grassroots having grown into the manhole, which was not an unusual occurrence. It was not always apparent that this would be a problem at a particular site until an attempt was made to remove the cover.

Accordingly, not at first being able to dislodge the cover, the respondent applied more force in his lifting manoeuvre and in so doing felt a painful popping sensation in his spine accompanied by pain in his right shoulder.

The Medical Evidence in Summary

On 10 April 2006, almost two years before the subject incident, the respondent had occasion to undergo an X-ray examination of his chest and thoracic spine on the referral of his general practitioner, Dr Lockhart. The X-ray revealed the presence of some mildly anteriorly wedge-shaped mid-thoracic vertebral bodies, with end plate irregularity and Schmorl's nodes consistent with what was described as previous vertebral epiphysitis. Only minimal degenerative spondylotic changes were reported to be evident in the mid-thoracic region and these were considered to be within normal limits for someone of the respondent's age, which was then 37 years.

The primary judge accepted that this pre-existing condition did not cause the condition arising out of the 2008 work incident but had resolved itself and had not caused the respondent any lasting problems. His Honour considered that the X-ray findings were of no significance to the subject accident other than to provide evidence that at that stage the respondent had some underlying degenerative changes in his thoracic spine, which was not an unexpected finding in someone who had been performing manual work since his teenage years.

On 11 May 2010, the respondent underwent a further X-ray examination of his thoracic and lumbar spines. The former was reported to show degenerative change as well as compression fractures in the mid-thoracic vertebrae with a 30 per cent decrease of the vertebral body height, which was thought to relate to underlying osteoporosis. Spondylotic change was seen with disc space narrowing at the L4/5 and L5/S1 levels.

On 29 June 2010 the respondent was referred to and examined by

Dr Al-Khawaja, a specialist neurological and spinal surgeon. He presented with mid-thoracic pain with bilateral shoulder pain (worse on the right side) and a pins and needles sensation in the fingers of the right hand. Dr Al-Khawaja interpreted the X-rays as showing collapses of the upper thoracic vertebrae. He referred the respondent for MRI scans of the cervical and thoracic spines and the right shoulder. Those scans revealed subtle disc protrusions at the levels C2/3 and C3/4 without encroachment. At the level C4/5 there was a reduction in disc height without encroachment. At the level C5/6 there was a central disc protrusion and subtle narrowing of the C6 neural exit suggesting the need for correlation with clinical features.

The thoracic MRI revealed multi-level areas of decreased anterior vertebral body height between T6 and T9, particularly at T7 and T8. There was no distinct evidence of a fracture. Subtle disc changes were defined as well as mild age-related costovertebral degenerative changes.

On 9 September 2010 the respondent was re-examined by Dr Al-Khawaja following the MRI scans. He identified multi-level degeneration in the respondent's spine, wedging at T7, T8 and T9 but no evidence of an acute fracture.

On 1 December 2010, at the request of his solicitor, the respondent was examined by Dr Alan Searle, a consultant orthopaedic surgeon. After reviewing the history, carrying out his own examination and reviewing the imaging investigations, Dr Searle expressed his opinion with regard to the respondent's injury and its consequences in the following terms:

The slight wedging of the bodies of at least two of his thoracic vertebrae is almost certainly developmental, not one of them resembling a healed fracture. This minor developmental variant would be likely to make him slightly more susceptible to a thoracic ligament strain or aggravation of some thoracic spondylosis, and this is what happened in the lifting incident on 22/2/08. The previous incident in November 2005 also caused some temporary minor aggravation of the same area but it appears that recovered completely. The developmental slight wedging of the bodies is usually accompanied by the development of slight spondylosis in that region. The incident on 22/2/08 aggravated the pre-existing condition and this aggravation is persisting and permanent and causes a moderately severe degree of disability.

Because of this he is permanently unfit for activities which require prolonged standing, lifting or repeated bending, twisting movements of the trunk, or regularly travelling moderate to long distances. It seems to me these restrictions would preclude any employment for which he is suited by reason of education or training or experience. If he is to obtain some form of sedentary work he would need retraining.

With regard to prognosis there will be a gradual increase in the symptoms and disability with the passage of time as degenerative (sic) become prominent and then progress steadily.

Treatment will continue to be conservative, as at present, and current treatment costs will continue. He should have a trial of other forms of medication particularly anti-inflammatories.

This injury has caused pain and suffering and has impaired his social, domestic and recreational activities, and his employment prospects. ... (emphasis added)

Of particular relevance to the Council's challenge to his Honour's approach to the assessment of damages is that on 1 June 2011, at the request of the solicitor for the Council, the respondent was examined by Dr Thomas Silva, a consultant orthopaedic surgeon. After reviewing his history, and after examining the respondent and the imaging films of his spine, Dr Silva, in his report of that date, considered that the respondent had pre-existing Scheuermann's disorder of the thoracic spine with Schmorl's nodes. Dr Silva stated his clinical impression as being that the respondent's underlying Scheuermann's disorder was probably aggravated by the 2008 work incident but that the aggravation had "since resolved" and his prognosis was "good". He considered that any work restrictions on the respondent concerning heavy lifting would be on account of the pre-existing Scheuermann's disorder.

On 3 May 2012, again at the request of the solicitor for the Council, Dr Silva provided a supplementary report in which he answered a series of questions posed to him by that solicitor. Regrettably, the letter of request was not included in the tender at trial, with the consequence that ambiguities arise in relation to some of Dr Silva's responses. Dr Silva stated that in his view, it was more probable than not that the respondent did suffer an aggravation of his pre-existing Scheuermann's disorder of the thoracic spine.

Importantly, Dr Silva expressed the opinion that the respondent's pre-existing Scheuermann's disorder would, in any event, have rendered him "unsuitable" to perform heavy and/or repetitive labouring duties at a time "earlier in his career as a labourer". He went on to state that the respondent's current back condition would be the same without the intervention of the 2008 work incident. He said he based that view on the clinical observations that were set out in his original report of 1 June 2011. The primary judge considered that the underlying details of Dr Silva's reasoning in forming these opinions were not adequately explained according to the requirements of the Uniform Civil Procedure Rules 2005 ("UCPR") Sch 7, cl 5(c).

On 5 July 2012, at the request of his solicitors, the respondent was examined by Dr Derrick Billett, a consultant orthopaedic surgeon. Dr Billett took a history from the respondent, examined him and reviewed the relevant imaging films. He considered that on 22 February 2008 whilst lifting a heavy manhole cover the respondent sustained soft tissue injuries to his neck, right shoulder and upper thoracic region, as well as discal problems in relation to his cervical and thoracic spines. His view was that these injuries aggravated underlying age-related, pre-existing degenerative changes in the respondent's spine. He considered the effects of the aggravation to be ongoing and the respondent's prognosis to be "guarded".

On 29 July 2012, Dr Searle provided a supplementary report to the respondent's solicitor. Having reviewed the report of Dr Silva dated 1 June 2011, Dr Searle expressed his disagreement with a number of aspects of the opinion of Dr Silva as expressed in that report. It will be necessary to return in more detail to the reports of Drs Searle and Silva, as they form the basis of the Council's challenge to his Honour's acceptance of the evidence of Dr Searle and the rejection of that of Dr Silva. Nevertheless, the primary judge recognised that there was a conflict of medical opinion which he needed to resolve.

The Primary Judge's Resolution of the Conflicting Medical Opinions

None of the medical experts was called to give evidence and, therefore, none was cross-examined. His Honour recognised at [72] that the conflicting expert medical opinions tendered in evidence needed to be reconciled as they could not stand together. Notwithstanding the lack of oral evidence, whether in chief or in cross-examination, his Honour accepted that he was required to engage in the task of reconciliation as best he could upon the available materials tendered by the parties.

His Honour acknowledged at [73] of his reasons that where there are competing opinions, a court must choose between them by reference to the proved facts, the specialised knowledge of the witness and the reasoning process which produces the opinion tendered. Having done so, the court must give an explanation for preferring one opinion over the other: Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588 at [35], [39], [91] and [92]; K & M Prodanovski Pty Ltd v Calliden Insurance Limited [2012] NSWCA 117; (2012) 60 MVR 456 at [25] per Meagher JA, Macfarlan JA and Tobias AJA agreeing; cf Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [64].

At [75] the primary judge found that there was nothing in the evidence of either the respondent or his wife to indicate that he was aware that he had been harbouring a debilitating or work limiting condition of his spine prior to the 2008 work incident. His Honour therefore accepted the respondent's evidence that he was pain and disability free in his thoracic spine immediately prior thereto. Against that background, his Honour considered it necessary (at [79]) to identify the polarised opinions within the expert medical opinions. In this respect, he noted that there was a body of expert orthopaedic opinion comprising the reports of Dr Searle and Dr Billett which related the respondent's current problems to the 2008 work incident, whilst there was a contrary body of evidence in the expert orthopaedic opinion of Dr Silva.

With respect to Dr Searle's report of 4 December 2010, his Honour noted (at [80]) that it made no mention of a diagnosis of Scheuermann's disorder, although it referred to pre-existing spondylosis of the thoracic spine which, in Dr Searle's opinion, was aggravated by the 2008 work incident. That aggravation was persisting and permanent in its effect, and continued to cause the respondent a moderately severe degree of disability. I would add that Dr Searle further opined that there would be a gradual increase in the respondent's symptoms and disability with the passing of time as his degenerative condition became prominent and then progressed steadily. His Honour considered that this opinion served to explain the respondent's ongoing symptoms.

The primary judge then referred (at [81]) to the report of Dr Silva of 1 June 2011, in which he opined that the X-ray and MRI scans of the respondent's thoracic spine revealed evidence of pre-existing classical Scheuermann's disorder of the mid-thoracic vertebra. His Honour reiterated that Dr Silva was of the opinion that the 2008 work incident had probably aggravated that condition, although the effects thereof had since resolved, leaving the respondent with a good prognosis. His Honour observed that Dr Silva's opinion, which was given three years following the respondent's injury, did not indicate the actual or likely timing of such resolution and, unlike the report of Dr Searle, did not explain the rationale for the respondent's ongoing symptoms.

At [83] the primary judge referred to a letter of Dr Silva dated 3 May 2012, which was provided in response to a request by the Council's solicitor for further clarification of his opinion. In that letter Dr Silva addressed a series of eight questions, but none raised the likely timing of the resolution of the aggravation of the respondent's Scheuermann's disorder, and Dr Silva made no comment on that issue in that document. However, Dr Silva went on to state that because of the underlying Scheuermann's disorder, the respondent would have been unfit to perform heavy lifting and repetitive bending activities earlier in his career as a labourer, the implication being that this was so before the subject injury. Dr Silva also stated that the respondent's then current back condition would have been the same without the intervention of the 2008 work incident.

At [85] his Honour dealt with Dr Billett's report of 5 July 2012, in which he also reviewed the radiological evidence. He based his reported conclusions on what he referred to as the evaluation of the objective findings concerning the respondent. Relevantly, he described the respondent's condition as still presenting with evidence of the ongoing aggravation of the degenerative changes in the thoracic spine. He expressed the view that the respondent was not capable of resuming his pre-injury duties and that he should limit his activities. His Honour observed that like Dr Searle's report, and unlike Dr Silva's report, Dr Billett's report also explained the basis of the respondent's ongoing symptoms.

Because Dr Silva had not in his report described Scheuermann's disorder, the primary judge resorted (at [88]-[90]) to two medical dictionaries in order to seek a definition of that condition. At [91] he concluded that when read broadly, the definitions seemed to indicate that where the competing bodies of expert evidence referred to either Scheuermann's disorder on the one hand, or degenerative spinal disease on the other, they were most probably referring to the same entity but by different nomenclature.

The primary judge then analysed the conflicting opinions. Relevantly, he noted the submission on behalf of the respondent that both Dr Searle and Dr Billett complied with the requirements of UCPR Sch 7, cl 5(1)(c), which requires an expert's report to include the expert's reasons for the opinion expressed. His Honour then noted (at [93]) the respondent's submission that Dr Silva's views as to the respondent's pre-existing Scheuermann's disorder were based upon an unsupported or unexplained assertion and should therefore be afforded little weight.

Of greater significance, given the course of the Council's challenge to his Honour's preference for the opinions of Drs Searle and Billett over that of Dr Silva, was the submission that since both Dr Searle and Dr Billett had been provided with the two reports of Dr Silva for comment, and as there was no expressed disagreement with some aspects of the views expressed by Dr Silva, including his opinion that the respondent suffered from Scheuermann's disorder, that testamentary silence on the part of Drs Searle and Billett should be taken to mean that they could not relevantly contradict that aspect of Dr Silva's views.

The primary judge considered (at [95]) that that submission of the Council was too simplistic to be accepted. Dr Silva's views, as well as the views of the other experts, still required analysis to determine their cogency in the context of the disputed issues. His Honour then examined the opinion of Dr Silva upon the assumption that his reference to the presence of Scheuermann's disorder in the respondent's thoracic spine was a reference to the same degenerative condition referred to by the other experts by a different name.

At [97] of his reasons the primary judge noted that the experts were in agreement that there had probably been an aggravation of an underlying degenerative condition in the respondent's thoracic spine, by whatever name that condition happened to be described. The point at which they diverged concerned the consequences of that aggravation, including its duration. In his first report of 1 June 2011, Dr Silva simply stated that the aggravation had "since resolved". His Honour considered that his reasons for that view were unstated and that, therefore, his opinion was entirely opaque to analysis. Relevantly, he considered that Dr Silva's report failed to comply with the requirement that reasons be expressed for the opinion held.

In particular, in proffering the view that the effects of the aggravation had resolved, according to his Honour (at [100]), Dr Silva neither dealt with nor explained the respondent's continuing experiencing of pain between his shoulder blades extending from the level of T1 to T10 in his thoracic spine. In that context, Dr Silva had not stated that it was not feasible for the respondent to be reporting the continuing presence of such pain in circumstances where he suggested that the aggravation had ceased to have effect, especially where there had been no additional trauma and before the 2008 work incident the respondent had been asymptomatic.

The Reports of Drs Searle and Silva in More Detail and the Primary Judge's Responses to Them

In his report of 1 June 2011 Dr Silva, having examined the respondent on 27 May 2011, took a history from him as to his employment as well as in relation to the incident. He noted that the respondent medicated himself with Panadeine Forte® when necessary, taking four to five tablets per day, and that his present complaint was pain between the shoulder blades extending from about T1 to T10 of the spine and over the right shoulder.

Upon examination, Dr Silva noted that the respondent was not in any distress, moved with ease, sat comfortably and was able to undress and dress himself with ease. He observed that he

had recent callosities and work staining on both palms suggestive of recent manual activity probably of a heavy nature.

Two aspects of that observation need to be noted at this point. The first is that it does not appear that Dr Silva questioned the respondent as to how his palms became so stained and whether in fact he had performed any recent manual activity, let alone manual activity of a heavy nature. Secondly, the respondent was not cross-examined with respect to Dr Silva's observation to establish it as a matter of fact. In these circumstances it was open to his Honour (at [103]) to decline to place any weight upon that observation of Dr Silva.

Although the respondent moved with ease, Dr Silva noted that during the rest of his clinical examination there were significant pain behaviour features and that the clinical presentation was essentially non-organic. Dr Silva did not explain what he meant by that last comment. He further observed that on examination, although the cervical, thoracic and lumbar curves were normal with no spinal muscle spasm in the cervical and thoracolumbar areas, the respondent had restricted spinal mobility in all three sections in a symmetrical fashion to about half the normal range "and that was non-organic", an observation which was also not explained. He concluded that part of his report dealing with the examination of the respondent by observing that his clinical presentation was "essentially non-organic in the context of recent callosities and work staining of both palms".

Under the heading "INVESTIGATIONS", Dr Silva noted that the plain X-rays of the respondent's thoracic and lumbar spines failed to reveal any bone injury, although there was some mild degenerative lipping in the mid-dorsal spine and some mild wedging and endplate changes suggestive of Scheuermann's disorder in that area. The MRI scan of the thoracic spine of 2 August 2010 revealed evidence of classical Scheuermann's disorder of the mid-thoracic vertebrae and Schmorl's nodes, which were pre-existing features. That was the extent of Dr Silva's explanation of the respondent's condition.

Under the heading "DIAGNOSIS AND OPINION", Dr Silva opined that the "clinical impression" was that the respondent had pre-existing Scheuermann's disorder of the thoracic spine which was probably aggravated by the 2008 work incident, "but that aggravation has since resolved and the prognosis is good". When answering a number of questions, he repeated that the aggravation of the respondent's pre-existing condition "has since resolved" and that he remained fit to return to work to his pre-injury activities, although if he required any restrictions on heavy lifting it was because of his pre-existing condition and not because of the work-related aggravation.

I pause to observe that according to Dr Silva's report of 1 June 2011, the aggravation of the respondent's pre-existing condition had resolved prior to his being examined by Dr Silva on 27 May 2011. The difficulty presented by the report is two-fold. First, it would seem that Dr Silva's opinion that any aggravation of the respondent's pre-existing condition had resolved was influenced by his observation during the course of his examination that the respondent had recent callosities and work staining on both palms suggestive of recent manual activity probably of a heavy nature. Secondly, there is no explanation by Dr Silva of the cause of the respondent's restricted spinal mobility or, more significantly, of his complaint of constant pain between the shoulder blades, extending from about T1 to T10 of his spine and over his right shoulder, unless that pain was due to the "recent callosities and work staining on both palms suggestive of recent manual activity probably of a heavy nature".

I turn now to Dr Silva's report of 3 May 2012. He stated that that report was to be read with his previous report of 1 June 2011. In answer to a question as to whether the respondent's pre-existing back condition made him unsuitable to perform heavy and/or repetitive labouring duties, Dr Silva responded that his "pre-existing back condition or thoracic Scheuermann's disorder" (seemingly expressed as alternatives) would have made him unsuitable to perform heavy and/or repetitive labouring duties and that it was more probable than not that he would have become unfit to perform his pre-injury labouring duties because of that disorder. In other words, he was probably unfit to perform his pre-injury labouring duties in any event because of his pre-existing Scheuermann's disorder. When asked when the respondent would so have become unfit, Dr Silva responded that earlier in his career as a labourer he would have been unfit to perform heavy lifting and repetitive bending because of that disorder. In the foregoing context, it should be noted that the respondent commenced work as a labourer at the age of 15. He was aged 44 as at the date of trial (13 November 2012), and had been working as a labourer without experiencing such symptoms for approximately 25 years as at the date of the accident (apart from the occasion in 2006 referred to at [22] above).

His Honour was also not prepared to give weight to Dr Silva's second report, which he provided without further examining the respondent and without taking any further history from him, and which expressed two further and significant views which his Honour considered had no identifiable basis in cogent reasoning. The first was that the respondent became unfit to perform heavy lifting and repetitive bending at a point earlier in his career as a labourer. His Honour observed (at [107]) with respect to that opinion:

I find myself unable to accept that opinion of Dr Silva because, without further reasoning, it seems inconsistent with the history obtained from the [respondent], which I accept, of him having in the past carried out such work both at work and at home without difficulty or incapacity before the subject injury. Dr Silva has not cogently explained how the [respondent] could have achieved such activity without debilitating pain when unfit for those tasks in the pre-injury period. A court should not be left to speculate on such an important matter. I therefore place no weight on that aspect of Dr Silva's opinion.

The second was that the respondent's current back condition would have been the same even without the intervention of the 2008 work incident. Dr Silva based that opinion on the clinical observations detailed in his original report of 1 June 2011. If that were so, then as his Honour noted at [110] of his reasons, it must have been because the relevant products of the clinical examination Dr Silva had in mind were the respondent's callosities and work stained palms. However, nowhere did Dr Silva suggest in either report that the respondent's ongoing complaints of pain were not genuine.

Thus at [111] his Honour concluded that Dr Silva had not provided any reasons for the suggestion that, although the respondent continued to experience the pain he described, that pain was not due to the aggravation of his pre-existing condition by the 2008 work incident. I would add that at [113] his Honour queried the use by Dr Silva of the description "essentially non-organic" to describe the respondent's clinical presentation, observing it to be necessarily ambiguous. Dr Silva was not asked to explain that expression when the Council's solicitor put the further questions to him which were the subject of his report of 3 May 2012.

The primary judge concluded his analysis of Dr Silva's reports in the following terms (at [114]):

On analysing the reports of Dr Silva as outlined above, I consider that the reasons for his opinions that the defendant relies upon as being critical of the plaintiff's claim are not adequately identified, explained or justified. This must necessarily significantly diminish any weight that such reports would otherwise be given.

By a letter dated 24 July 2012 the respondent's solicitors forwarded to Dr Searle the reports of Dr Silva, including, in particular, his second report of 3 May 2012. The letter requested Dr Searle to provide further comments with respect to the issues raised by Dr Silva. Relevantly, the solicitors' letter stated the following:

The following comments are taken from Dr Silva's reports dated 3 May 2012

● The Plaintiff's pre-existing back condition or thoracic Scheuermann's disorder would have made him unsuitable to perform heavy or repetitive laboring duties.

● The Plaintiff would have become unfit to perform his pre-injury laboring duties because of his pre-existing Scheuermann's disorder and that is more probable than not. In other words he probably will be unfit his pre-existing laboring duties (sic) in any event because of his pre-existing Scheuermann's disorder.

● Earlier in his career as a Labourer he would have been unfit to do heavy lifting and repetitive bending because of his pre-existing Scheuermann's disorder.

● The Plaintiff's current back condition would be the same even without the intervention for (sic) the February 2008 incident and I base those opinions on my clinical observations detailed in my original report.

I would be pleased if you would provide your comments in response to Dr Silva's reports. In particular would you kindly comment on the following:

1. Bearing in mind that the Plaintiff had worked as a waste/water pump attendant since 2004 without injury does this suggest that he could have continued in his line of work in the event that he had not sustained an injury to his back on 22 February 2008?

2. Do you agree with Dr Silva's diagnosis of aggravation of pre-existing Scheuermann's disorder?

3. Do you agree with Dr Silva that the aggravation has now ceased? If not, would you please advise those aspects of your examination findings or the history given that you rely upon to reach that conclusion.

4. I would be pleased if you provide your comments and response to Dr Silva's reports generally.

It is apparent from Dr Searle's report of 29 July 2012 that he partially answered the four numbered questions asked of him. In particular, he disagreed with the assertion in Question 3, but he did not answer Questions 1 or 2 and did not specifically respond to Dr Silva's report of 3 May 2012 and, in particular, the contents of the four dot points extracted from that report ("the four propositions").

Nevertheless, Dr Searle dealt in detail with Dr Silva's 1 June 2011 report. In that report Dr Silva maintained that the aggravation of the respondent's condition caused by the 2008 work incident had resolved. Dr Searle in his report of 29 July 2012 disagreed with that opinion. It is noteworthy that Dr Searle referred to Dr Silva's observation that the respondent had "recent callosities and work staining on both palms suggestive of recent manual activity probably of a heavy nature". He stated that when he examined the respondent he had generalised slight hardening of the skin (presumably of his palms) which one inevitably sees in a manual worker aged 42. He considered that Dr Silva had made an unwarranted assumption when he stated that the callosities were "recent". Dr Searle further considered that Dr Silva's suggestion that the respondent's complaints of difficulty with the activities of daily living were untrue because of the recent staining of his hands was inconsistent with the history obtained by Dr Silva that he had not worked since the day of his injury on 22 February 2008. At no stage did Dr Silva suggest that the respondent was lying or malingering.

Dr Searle then referred to Dr Silva's opinion that the respondent's thoracic spine disorder was probably aggravated by the incident on 22 February 2008, an opinion which, according to Dr Searle, must have been based on the respondent's history that he felt pain at that time. Resolution of the aggravation would therefore mean that the pain had disappeared. Dr Searle saw nothing in the respondent's history or examination which would suggest that his pain had resolved. This in itself suggested that the aggravation had not resolved, especially as Dr Silva noted that he would need occasional pain medication in the future. Accordingly, Dr Searle disagreed with Dr Silva's conclusions.

Having expressed the view (at [117]) that Dr Silva's opinions failed to adequately explain or deal with the respondent's ongoing complaints of pain in the context of an asserted resolution of the aggravation of his injury, his Honour contrasted Dr Silva's opinions with three of Dr Searle's which he asserted were based on reasoning which did not contain the flaws evidenced in Dr Silva's reports. His Honour then observed (at [120]) that:

[t]he opinion of Dr Searle, to the effect that the symptomatic effects of the subject aggravation of the [respondent's] spine will continue and get worse with the passage of time, stands to be evaluated according to events that occurred after his December 2010 examination of the [respondent].

His Honour then referred to the report of Dr Billett of 5 July 2012 and the fact that he had examined the respondent in July 2012, some 14 months after Dr Silva. The Council noted that Dr Billett had been provided with copies of Dr Silva's two reports under cover of a letter from the respondent's solicitors dated 29 June 2012 in which he was asked to provide his comments on those reports and, in particular, to comment on the following:

1. Bearing in mind that the [respondent] had worked as a waste-water pump attendant since 2004 without injury, does this suggest that he could have continued in his line of work in the event that he had not sustained an injury to his back on 22 February 2008?

2. I would be pleased if you provide your comments in response to Dr Silva's reports generally.

Regrettably, Dr Billet did not respond directly to these requests, particularly the second.

However, it may be noted that the respondent stated to Dr Billett that the pain in his mid-thoracic region occurred on a constant daily basis, that he rated it "at 8 out of 10" and that he also experienced intermittent daily pain in his right shoulder. It was on the basis of that history and his examination of the respondent that Dr Billett expressed the opinion that as a consequence of the 2008 work incident, the respondent had sustained soft tissue injuries to his neck, right shoulder and upper thoracic region with aggravation of any underlying pre-existing constitutional age-related degenerative changes. His prognosis was, as I have said, expressed as "guarded".

At [123] the primary judge concluded that he did not accept Dr Silva's opinions for the reasons identified but that he preferred the reasoned opinions of Dr Searle and Dr Billett, which were consistent with each other over the time span of their respective examinations of the respondent and consistent with the history provided by him to each of them (and which had not been challenged in cross-examination or otherwise). Accordingly, in his Honour's view those opinions outweighed the contrary opinion of Dr Silva in an acceptably reasoned manner.

The Validity of the Council's Submissions with respect to Dr Silva's Reports

The Council submitted that Drs Searle and Billett had been asked to comment on the four propositions extracted from Dr Silva's report of 3 May 2012, and that as neither had responded to them, it should be inferred that they agreed with them.

There is no doubt that neither Dr Searle nor Dr Billett agreed or disagreed with Dr Silva's diagnosis that the respondent had pre-existing Scheuermann's disorder and that it was that disorder that was aggravated by the 2008 work incident. They certainly agreed that he had a pre-existing thoracic degenerative condition which was aggravated by that incident. However, Dr Searle expressly disagreed with Dr Silva's opinion that that aggravation had resolved itself and, therefore, had ceased to impact on the respondent's condition at the time of his examination of him and on his ongoing symptoms.

It was nevertheless submitted that by failing to deal specifically with the question which was asked of them as to whether the respondent's pre-existing condition was Scheuermann's disorder, both Dr Searle and Dr Billett had accepted that the respondent's degenerative condition was indeed Scheuermann's disorder. But even if this be so, in my view the only thing that flows from it are the four propositions to the effect that that disorder would have made him unsuitable and unfit to perform his pre-injury heavy and/or repetitive labouring and bending duties earlier in his career as a labourer and that this was so without the intervention of the 2008 work incident.

However, the difficulty facing the Council is that, even leaving Dr Billett to one side, notwithstanding that his evidence is consistent with that of Dr Searle albeit less detailed, it is apparent that Dr Searle specifically disagreed with Dr Silva's assertion that the aggravation caused by the subject incident to the respondent's pre-existing degenerative condition of the thoracic spine had resolved. Contrary to Dr Silva's opinion, Dr Searle's view was that it was ongoing and permanent.

Notwithstanding that Dr Searle did not expressly respond to the assertion of Dr Silva that the respondent's pre-existing thoracic spine condition, which Dr Silva had diagnosed as thoracic Scheuermann's disorder, made him unsuitable to perform the type of work he had been performing for some 26 years prior to the accident, the fact remained that he was able to perform such work without difficulty up until the accident. He had what appears to have been a minor hiccup in November 2005 when, according to the history given by the respondent to Dr Searle, he had some rib pain diagnosed as bruising when he was involved in an altercation unrelated to his work. It was then that he underwent X-rays of his thoracic spine and his degenerative condition was discovered: see [22] above.

Although Dr Silva expressed the opinion that the respondent was unfit to perform his pre-existing labouring duties "in any event" because of his pre-existing Scheuermann's disorder, when requested to provide an opinion as to when he would have become so unfit, his response was "earlier in his career as a labourer". As I have said, this must be a reference to the respondent becoming unfit well prior to his accident.

In his report of 1 June 2011, Dr Silva stated, no doubt because the aggravation of his pre-existing condition had resolved, that the respondent was fit to return to work. As already noted, he added that because of his pre-existing thoracic Scheuermann's disorder it would be advisable for him to abstain from heavy lifting. What Dr Silva did not explain was why, if the respondent was unfit to perform that task, his susceptibility to aggravating his disorder by heavy lifting and bending had not manifested itself prior to the 2008 work incident, especially given his then incident-free labouring career of some 26 years.

There is no doubt that, as Dr Searle confirmed in his report of 4 December 2010, the respondent was as a consequence of his pre-existing degenerative condition "slightly more susceptible to a thoracic ligament strain or aggravation of some thoracic spondylosis" and that this susceptibility manifested itself for the first time in the lifting incident in February 2008.

It may well be that there is little difference between the opinions of Dr Searle and Dr Silva except as to the issue of whether the aggravation to the respondent's pre-existing degenerative thoracic condition caused by the 2008 work incident had resolved itself or whether it would resolve itself at any time in the future. It was clearly the view of Dr Silva that it had resolved itself prior to his first report of 1 June 2011. Dr Searle was equally clearly of the view that it had not and that the aggravation was not only persisting but also permanent and causing a moderately severe degree of disability. He maintained that position, disagreeing with the conclusions which Dr Silva stated in his first report.

Furthermore, as I have indicated, Dr Searle expressed the view that the respondent was susceptible to a thoracic ligament strain or aggravation of his thoracic spondylosis due to his pre-existing degenerative condition. As such, it might be said that it was at least inadvisable for him to be involved in work that involved heavy lifting or bending. It seems to me that Dr Silva's views expressed in his report of 3 May 2012 are essentially the same. He said that the respondent's "pre-existing back condition or thoracic Scheuermann's disorder" would have made him unsuitable to perform heavy and/or repetitive labouring duties. As such, if he continued to perform such duties, then he was susceptible to aggravating that condition and suffering the injury which he ultimately sustained in the 2008 work incident.

Dr Silva's opinion that the respondent's current back condition would be the same without the intervention of the 2008 work incident would not be at odds with the views of Dr Searle if, as I understand the latter to be saying, that condition made him susceptible to future aggravation caused by heavy labouring work. Dr Searle's opinion that the respondent's degenerative thoracic condition made him more susceptible to strain or aggravation such as occurred in the 2008 work incident clearly implies that he was unfit for that type of work due to that susceptibility. If this is so, then there is little difference between the two experts on this issue.

As already noted, at [91] of his reasons the primary judge stated that the expert evidence on both sides established that the respondent had a pre-existing degenerative spinal disease and that whether or not one referred to it as Scheuermann's disorder made no difference: it was a pre-existing degenerative condition that rendered the respondent unfit for heavy labouring work (to use Dr Silva's description) or susceptible to aggravation by heavy lifting (to use Dr Searle's). In his report of 3 May 2012, Dr Silva referred to the respondent's "pre-existing back condition or thoracic Scheuermann's disorder" as if they were interchangeable.

The real issue between the two medical experts, as recognised by his Honour at [98] of his reasons, was whether the aggravation caused by the 2008 work incident had resolved by June 2011 or whether it was permanent and continuing. On this issue there was clear disagreement and, in particular, Dr Searle in his report of 29 July 2012 expressed his disagreement with Dr Silva's conclusion that the aggravation had resolved. It had not and he regarded it as permanent. The primary judge was entitled to accept Dr Searle on this issue, particularly given the fact that not only when he saw Dr Silva but also at the time of trial, the respondent was suffering a reasonably high degree of pain in his thoracic region which could only be explained by the fact that the aggravation of his condition in February 2008 had not resolved. On this basis his Honour was entitled to reject the evidence of Dr Silva, as he did at [100], [104] and [107] of his reasons.

Dr Billett in his report of 5 July 2012 corroborated the views of Dr Searle. He diagnosed aggravation of the respondent's underlying pre-existing constitutional age-related degenerative changes which was ongoing as at the time that he examined him. In my view it follows from the foregoing that even if one assumes that Drs Searle and Billett accepted the four propositions, that would have made no difference to the opinions they expressed with respect to the ongoing aggravation of the respondent's pre-existing degenerative condition caused by the Council's negligence. It is not to the point that the respondent was unfit, or that it was unsuitable for him, to perform heavy and/or repetitive lifting or that he became so unfit and susceptible to injury at an earlier point in his lengthy labouring career. Equally, it is not to the point that his degenerative condition would be the same even if he had not aggravated that condition in the incident on 22 February 2008. None of the four propositions, even if accepted, are inconsistent with the considered views of Drs Searle and Billett that the aggravation of his condition was ongoing and permanent.

The Council submitted that, not having objected to the four propositions stated by Dr Silva nor cross-examined him thereon nor adduced evidence to contradict them, the respondent must have chosen to fight the case on the basis that the correctness of the four propositions formed the foundation on which the respondent's damages should be determined. With respect, that is not so. Subject to one matter referred to below, the fundamental issue bearing on the determination of the respondent's damages was whether the aggravation of his pre-existing degenerative condition caused by the negligence of the Council had resolved itself or was permanent and ongoing. That was the primary issue joined between the experts and it was resolved by his Honour in favour of the respondent. It follows that the failure of Dr Searle to dispute the characterisation of the disorder as diagnosed by Dr Silva was a false issue.

The Council further submitted that the primary judge created a dispute where one did not exist when (at [86]) he stated that Dr Silva was the only medical expert to identify the presence of Scheuermann's disorder of the respondent's thoracic spine. As Dr Searle did not expressly dispute the characterisation of the disorder as so diagnosed, this was not an issue in dispute. Even if this be so, for the reasons I have indicated it was a false issue and can be ignored. The real issue was correctly identified by the primary judge at [98] when he stated that the point at which there was a divergence of opinion amongst the experts concerned the consequences of the aggravation, including its duration: in particular, had it resolved or was it continuing, and if so, for how long? Dr Searle's opinion was that it was permanent and his Honour was entitled to accept it given the respondent's evidence at trial as to his continuing symptoms, there being no other explanation for them: see [100] of his Honour's reasons.

As in my opinion the so-called dispute created by the primary judge relating to the four propositions was a false issue and implicitly recognised by his Honour as such, it follows that the Council's reliance on the authorities referred to in its written submissions at [40]-[42] and [54]-[62] becomes moot.

Finally, the Council submitted that, had the primary judge accepted the four propositions asserted by Dr Silva, an entirely different approach to the calculation of damages would have been called for. This was because the respondent was carrying an underlying degenerative condition that meant that sooner or later he would have been incapable of performing his pre-injury work in any event. It was thus submitted that all the problems accepted by the primary judge as being the result of the accident would have come to pass (at some indeterminate time in the future) with the consequence that the respondent would have experienced the same struggle to find suitable work which his Honour accepted he faced due to his incapacity as a result of the accident.

On the basis of this scenario, the Council accepted that there was a period, before the respondent's underlying incapacity would have overwhelmed him in any event, when the acute effects of the 2008 work incident would have had an impact upon him. However, that period represented the extent of the damage for which the Council was liable.

The difficulty with the foregoing proposition is two-fold. First, the evidence of Dr Searle, accepted by the primary judge, was that the aggravation to the respondent's pre-existing degenerative condition caused by the 2008 work incident was both persisting and permanent. Secondly, Dr Searle's prognosis in his 4 December 2010 report was that there would be a gradual increase in the respondent's symptoms and disability with the passage of time "as degenerative [symptoms] become prominent and then progress steadily". Although it was not referred to by the Council, it is not entirely clear what Dr Searle meant by this last reference. It may be that he was saying that eventually the degenerative condition would become so prominent in terms of its symptomology that it would overtake the impact of the aggravation of the respondent's condition caused by the 2008 work incident. However, this may not be a correct interpretation of Dr Searle's opinion, given that his view was that the 2008 aggravation was permanent and causing a moderately severe degree of disability. But in any event, even if it be the case that at some point the respondent's degenerative condition may increase his degree of disability from moderately severe to severe or worse, neither Dr Searle nor Dr Silva expressed a view as to when that might occur.

At this point, the decisions of the High Court in Watts v Rake [1960] HCA 58; (1960) 108 CLR 158 and Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164 become relevant. In Purkess Barwick CJ, Kitto and Taylor JJ stated (at 168) that where a plaintiff has, by direct or circumstantial evidence, made out a prima facie case that incapacity has resulted from the defendant's negligence, the onus of adducing evidence that his incapacity is wholly or partly the result of some pre-existing condition or that incapacity, either total or partial, would, in any event, have resulted from a pre-existing condition, rests on the defendant. Their Honours continued:

... it is not enough for the defendant merely to suggest the existence of a progressive pre-existing condition in the plaintiff or a relationship between any such condition and the plaintiff's present incapacity. On the contrary it was stressed [in Watts v Rake] that both the pre-existing condition and its future probable effects or its actual relationship to that incapacity must be the subject of evidence ... which, if accepted, would establish with some reasonable measure of precision, what the pre-existing condition was and what its future effects, both as to their nature and their future development and progress, were likely to be.

The primary judge referred to these authorities at [124] and [125] of his reasons, where he said:

124 The fundamental principle of assessment of injury and disability is that the defendant must take the plaintiff as he is found, which includes with any vulnerability or susceptibility to aggravation of any underlying condition from a further tortious injury.

125 In a case where a defendant seeks to avoid liability for an aggravation injury to an underlying condition, it is incumbent upon the defendant to show, through acceptable evidence, that any ongoing complaints experienced by the plaintiff are as a result of the underlying condition, and not due to an aggravation of asserted temporary duration: Watts v Rake [1953] HCA 18; (1953) 89 CLR 200; Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164.

At [126] his Honour noted that the Council sought to avoid liability for what was an aggravation injury by relying on the evidence of Dr Silva, which he had not accepted. Dr Silva's proposition was that the respondent was unfit to perform his pre-existing labouring duties "in any event". As I have indicated, one can accept this proposition, but Dr Silva did not express a view as to when it was likely, let alone probable, that the respondent's unfitness would have manifested itself in the aggravation of his pre-existing degenerative condition, had the 2008 work incident not occurred.

The onus lay upon the Council to establish, if it could, that at some determinate point in the future the symptoms of which the respondent complained which were caused by the aggravation of his condition due to the 2008 work incident would cease to have effect. Dr Silva's evidence did not establish any such point of time. In these circumstances, in my view the Council did not discharge its onus of proof. Accordingly, the approach taken by the primary judge discloses no error, particularly given the view expressed by Dr Searle that the aggravation of the respondent's pre-existing degenerative condition was permanent. As his Honour found at [130] of his reasons, having recited the respondent's physical and psychological problems in that and the preceding paragraph, there was no end in sight for those problems.

It follows from the foregoing discussion that the Council's challenge to his Honour's general approach to the assessment of damages should be rejected.

Future Medical Expenses

The respondent claimed $50,199.00 for future treatment expenses. The Council submitted that there should be no allowance under that head of damages. That submission was rejected by his Honour (at [287]) upon the basis that it glossed over the reality of the respondent's ongoing back pain and his depression, which he had found to have been caused by the injury in question.

The respondent advanced a case based upon a pattern of consultations and expenses which included general practitioners, orthopaedic specialists, radiological investigations, physiotherapy, hydrotherapy, pain killing medications, psychological assessments, an exercise rehabilitation program, a pain management program and associated travel.

However, his Honour accepted (at [290]), first, that the medical evidence was not prescriptive of as detailed a treatment program as the respondent claimed. Secondly, he noted that the respondent acknowledged that he was not one readily to seek out medical assistance through consultations with medical practitioners. Thirdly, his Honour nevertheless assumed that the respondent would take reasonable steps to seek to mitigate his impairments and that that required that some award be made for reasonable mitigatory treatment.

Having rejected a claim for the projection of a weekly amount because of the many imponderable factors involved in such an assessment, his Honour considered that the appropriate approach was to provide a lump sum buffer, which he assessed at $30,000, to cover the respondent in relation to likely expenses over his remaining lifetime.

The Council submitted that even on the basis of Dr Searle's evidence the respondent's future treatment would continue to be conservative. It was contended that there was no evidence to support any particular amount or any particular form of treatment. Given the conclusion that the respondent was not one to seek out medical treatment, it was submitted that at best the evidence only justified an award of damages under this head of between $1,600 and $2,200. It was contended that the allowance of $30,000 was unsupported by any rational reasons and was an entirely arbitrary figure.

The respondent conceded that the evidence on this topic was, to say the least, sparse. Although he submitted that the allowance made by the primary judge for future treatment expenses was consistent with the evidence, ultimately it was conceded that the amount of $30,000 was excessive and that $10,000 was more appropriate. In my view, the amount awarded by his Honour was indeed excessive and an amount of $10,000 should be substituted.

Future Domestic Assistance

The respondent claimed the sum of $122,073.60 under this head of damages. He particularised a continuing claim for future domestic assistance of four hours per week at the rate of $33.00 per hour for the remainder of his life. This was the equivalent of $132.00 per week, which yielded an undiscounted sum of $122,073.60.

At [282] the primary judge accepted that when viewed as an average over the respondent's remaining lifespan, the claim of four hours per week was inherently reasonable having regard to the evidence. It accommodated the consideration that at the time of trial the respondent's need was likely to exceed the seven hours per week allowed by his Honour for past domestic assistance (which was not the subject of challenge). It also properly allowed for a potential decrease in the need for so many hours as the size of the respondent's dependent family contracted in the future and took account of a possible move to more compact accommodation requiring less outside work. Nevertheless, his Honour considered that an adjustment should be made on account of the respondent's pre-existing degenerative spinal condition. On this basis, he applied the conventional vicissitudes discount of 15 per cent, thus reducing the award under this head to $103,762.56.

The Council submitted that but for his injury, the respondent would have been in full-time work. In these circumstances it was unlikely that he would have undertaken an additional five hours of domestic work every day, seven days per week. This was said to be glaringly improbable.

However, with respect to past domestic assistance his Honour allowed seven hours per week, which he considered very conservative. As I have noted, that allowance was not challenged. For future domestic assistance the respondent claimed four hours per week and not five hours per day as the Council's submission seemed to contemplate. In accepting that four hours per week, when viewed as an average over the respondent's remaining life span, was reasonable, his Honour had regard to the evidence which he set out in detail when dealing with past domestic assistance. On the basis that there was no challenge to the primary judge's assessment of past domestic assistance at seven hours per week, I consider that it was appropriate for his Honour to reduce that figure to four hours per week to take account of the matters to which he referred at [282] of his reasons.

A large part of the Council's submissions on the present issue related to an assertion that his Honour paid no regard to s 15 of the Civil Liability Act. However, as a result of it having been conceded in oral argument that he was not required to do so when dealing with future domestic assistance, having found that the threshold specified by that section had been satisfied in relation to past domestic assistance, the Council's submission with respect to this head of damages loses its force.

In my view, no error has been demonstrated which would justify appellate interference with his Honour's award under this head.

The Section 151Z Issue

The Primary Judge's Findings

In paragraph 13 of its Defence the Council asserted that any damages recoverable by the respondent from the Council were liable to be reduced in accordance with s 151Z(2)(c) of the WC Act. At [214] of his reasons the primary judge stated that the Council carried the onus of establishing that defence in order to achieve the claimed reduction in the respondent's entitlement to damages on account of negligence on the part of the employer pursuant to s 151Z(2)(a): Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99; (2008) 172 IR 453 at [32] per McColl JA, with whom Mason P and Beazley JA agreed.

At [215] his Honour noted the evidence of the respondent that the employer had not trained him in safe lifting techniques. In his Honour's view, that fact of itself was an insufficient basis upon which to successfully argue that s 151Z(2) was engaged.

However, his Honour noted (at [216]) that the position might have been different if it could have been shown that the employer had been made aware of the Council's intention to deploy the respondent's labour in the performance of heavy lifting duties. The evidence established that the respondent had received training arranged by the employer for working safely in confined spaces. His Honour inferred that the employer therefore knew that the Council expected the respondent to have training in the use of those skills in order that he could be deployed to work in areas requiring their use.

His Honour concluded (at [217]) that in the absence of evidence that the employer either knew or ought to have known that the respondent's labour would be deployed in heavy lifting tasks, there was an insufficient basis within the evidence to find that it either knew or ought to have known that the respondent would be required to carry out tasks involving the lifting of heavy concrete manhole covers.

The primary judge accepted that the employer had a non-delegable duty to take reasonable care to ensure the safety of its employees, including when they were assigned to the Council's labour force. However, his Honour considered that that proposition needed to be viewed in context. The employer had, relevantly, trained the respondent in methods of working safely in confined spaces. But in the absence of evidence that the employer was aware that the respondent would be assigned to work on heavy lifting tasks, especially in circumstances where he had a 6 year history of having his labour hired out, including to the Council, his Honour could see no basis for a s 151Z reduction.

At [220] his Honour stated:

In coming to that view, I have considered what the employer might have ascertained if it inspected the work system of the Council. It would most probably have seen a truck equipped with a safe lifting device and Council documents ... which would have provided reassurance to the employer that the Council had a safe manual handling policy.

In the foregoing circumstances, his Honour saw no basis for imputing negligence to the employer with respect to the circumstances in which the respondent sustained his injury.

The Relevant Findings of the Primary Judge with respect to the Liability of the Council

On the issue of whether the Council had breached its duty of care to the respondent, his Honour (at [161]) condensed fifteen allegations of negligence into six, of which the following are presently relevant:

(a) Failure to maintain a safe system of work;

(b) Failure to provide adequate manual or mechanical assistance, and a related failure to warn the respondent of the risk of injury involved in lifting the manhole covers without such assistance;

(c) Failure to train the respondent in safe manual handling techniques in relation to the removal of heavy manhole covers;

(d) Failure to ensure the safety of the respondent and a related failure to protect him from injury by requiring him to lift a manhole cover using a T-bar without assistance and without adequate supervision.

The primary judge rejected all particulars of negligence apart from two. The first was that the Council failed to ensure that the respondent was adequately trained in the implementation of safe lifting techniques with the manhole covers he was required to remove. The second was that the Council failed to carry out an appropriate risk assessment and, as a result, failed to employ an available mechanical lifting device (located on the rear of the Council truck). Of significance, according to the respondent, is the fact that his Honour did not find that the Council had failed to provide and maintain a safe system of work.

In essence, his Honour's finding of breach of duty related to the action of Mr Gillard, the respondent's supervisor, in assigning to him a heavy lifting task without first satisfying himself that the respondent had been trained in the safe methods of performing such a task, given the weight of the manhole cover to be lifted. In other words, the case was one of inadequate supervision of an untrained labour hire employee. Mr Gillard should have been aware of the weight of the manhole cover and should have realised that a one-man lift was contraindicated. Had Mr Gillard been aware that the manhole cover weighed in the vicinity of 75-85 kilograms, he ought to have utilised the mechanical lifting device on the rear of the truck rather than requiring the respondent to manually lift the cover. The respondent submitted, therefore, that the Council's breach of duty was constituted solely by a casual act of negligence on the part of Mr Gillard.

The Council's Submissions

The Council submitted that his Honour had failed to apply the correct test in determining whether the employer was in breach of its duty of care. In exonerating the employer, he had accepted that the respondent had received no training in safe lifting techniques from the employer or, for that matter, from the Council. However, because it had not been shown that the employer had been made aware of the Council's intention to deploy the respondent in heavy lifting duties, it could not be said to have breached its non-delegable duty of care. This approach bespoke error.

It was submitted that his Honour's finding that the employer did not know, and was not required to know, that the respondent was engaged in the type of work he was doing when he was injured, and that it was only if the employer had been made aware of the Council's intention to deploy the respondent to carry out heavy lifting tasks that it could be liable, was inconsistent with authority.

The principles applicable to the present issue are conveniently set out in some detail in the judgment of McColl JA in Pollard at [33] to [51]. Relevantly for present purposes, the following propositions can be distilled from her Honour's analysis:

A person subject to a non-delegable duty of care cannot escape liability if the duty has been delegated and then not properly performed;
The employer must ensure that the duty is carried out;
If the duty is to take reasonable care of some person, the employer must ensure that reasonable care is taken;
The duty extends to giving employees directions in the performance of their work where directions might reasonably be thought to be required to secure them from danger of injury, and to devising a method of operation for the performance of the task that eliminates the risk, or adequately safeguards against it;
The employer's duty of care is not modified because its employees are sent to work for a client. In such circumstances the employer may be required to adopt additional measures by way of warning or training in order to discharge its continuing duty of care to its employees;
Many labour hire cases concern an employee sent to work on another's premises where there is an opportunity for the labour hire firm to ascertain the system of work;
It has been accepted that the question of whether the employer's non-delegable duty is discharged when an employee is working at a third party's premises depends upon such matters as the employer's opportunity to inspect the premises, the length of time the employer has put his employee to work on the premises, the employer's awareness of the danger, his capacity to shield his employee from the danger and various other factors;
There are at least two cases where a labour hire firm had apparently done nothing to familiarise itself with the conditions of the workplace in which the employee was engaged and in which it was held liable.

The primary judge distinguished (at [218]) the decision in Pollard, as well as that of this Court in TNT v Christie [2003] NSWCA 47. According to his Honour, the employer in Christie had ample opportunity to inspect the site and work system, which justified the reduction of damages in that case. The employer in the present case had no such opportunity and would have had no power or control over the system adopted by the Council.

The Council submitted that his Honour's finding of ignorance on the part of the employer as to what the respondent was doing and how he was doing it mandated the conclusion, consistently with the onerous duty owed by employers, that the employer was relevantly in breach of its duty of care by failing to make inquiries or otherwise to satisfy itself as to the implementation of, and adherence to, a safe system of work by the Council as the host employer.

It was submitted that the two cases referred to by McColl JA in Pollard at [34] (referred to in the last dot point at [116] above) involved the same factual scenario with which the primary judge was dealing in the present case, namely, the situation where the employer "had done nothing to familiarise itself with the conditions of the [respondent's] workplace". As ignorance is no excuse, and contrary to the primary judge's approach, the two cases referred to provided a foundation for liability.

The appellant accepted that if the employer had inspected the Council's work system, it would have found a safe lifting device on the truck and evidence of a documented safe system. However, it submitted that if the employer had asked the respondent what he was doing and how he was doing it, it would have learned that the "safe system" which the Council had put in place was not being implemented. According to the respondent's evidence, which the primary judge accepted, if the employer had made any inspection of the manner in which the work was actually performed, it would have learnt of the shortcomings which his Honour found. Essentially, inquiry as to what the respondent was doing while working for the Council would have revealed that he was engaged in heavy lifting and, in particular, lifting heavy concrete manhole covers with nothing more than a T-bar device.

The Respondent's Submissions

The respondent drew attention to the finding of the primary judge at [25] that in early 2008 he was assigned by the employer to work for Shoalhaven Water, an arm of the Council, to attend to the opening, inspection and clearing of sewerage main manholes and, if required, choked sewerage mains. For this purpose the respondent stated that the employer had "got me into the confined spaces ticket because we were working ... down in the manholes". However, apart from that he had no training from Shoalhaven Water with respect to manual handling techniques of manhole covers.

The respondent gave evidence that the Council did have a method of removing heavy duty manhole covers which were within a road. The method adopted was to use a Hiab crane on the back of a Council truck which could be lowered down to lift the manhole cover. However, the manhole in the present case was a certain distance away from the road and the method he was therefore required to use was the utilisation of the T-bar lifting tool.

The respondent submitted that no questions had been asked of him to establish the nature and extent of any communication between him and the employer. Accordingly, there was no evidence concerning whether the employer had been enquiring about the respondent's work duties. It was therefore not known what information, if any, had been conveyed by the respondent to the employer.

In any event, the negligence that was the primary cause of the respondent's injury was Mr Gillard's instruction to the respondent to lift the manhole cover without any mechanical assistance. As the primary judge found, the task required of the respondent was site-specific. Given that the employer's duty was to take reasonable care and was not absolute, there was nothing that it could have done in a practical sense to avoid the risk of injury. The respondent was under the instruction and supervision of an experienced Council employee in circumstances where there were systems in place for the assessment of risk and there was proper equipment for lifting available. His injury was in essence due to a casual act of negligence by Mr Gillard which could not have been foreseen by the employer.

It was significant, so it was contended, that there was no finding that the system of lifting manhole covers was itself unsafe and, therefore, negligent. The primary judge (at [165]) expressly rejected the claim that there had been a failure to maintain a safe system of work. Even if the Council's submission was accepted that the employer should have been aware that the respondent was being deployed in heavy lifting tasks, it did not follow that there was a breach of its duty of care that was causative of the respondent's injury. Again, even if the employer had ensured that the respondent was trained in heavy lifting, the injury would still have occurred as there was nothing to suggest that the respondent would have refused the instruction of Mr Gillard to lift the manhole cover utilising the T-bar lifting tool.

Did the Primary Judge Err in Declining to Reduce the Respondent's Damages Pursuant to s 151Z(2)(c)?

There can be little doubt, in my view, that the employer was aware that the respondent was engaged in duties for the Council that involved, amongst other things, the opening of sewerage main manholes. It must have been aware that the respondent was required to work in confined spaces, for it caused him to be trained for that purpose, no doubt as required by cl 77 of the Occupational Health and Safety Regulation 2001 (now replaced by cl 76 of the Work Health and Safety Regulation 2011). In my view it follows that the employer was aware or ought to have been aware that the respondent, if required to work in a confined space in a sewer main, would also be required to remove the manhole cover to the sewer main, and that such covers were often constructed of concrete and of considerable weight.

In the foregoing circumstances, in my opinion it behoved the employer to ascertain from the Council the system of work which it had in place to enable its employees, including the respondent, to remove such covers without risk of injury.

What, then, would it have been told? In my view, it would have been informed that the system of work or the methods which the Council had available to enable concrete manhole covers to be lifted included the use of T-bars by one or two persons and the use of a mechanical lifting device attached to the rear of a truck. The choice of method would depend on the particular circumstances. It would be a matter for the respondent's supervisor to determine the method to be employed in any particular case so as to avoid any risk of injury. There was no apparent reason in the present case why the truck could not have been used to lift the subject manhole cover or why its use should have been confined to manhole covers located within the road reserve, if that was the case. Furthermore, there was no reason for the employer to assume that if a manhole cover was heavy and was not so located as to be capable of being lifted by the mechanical device on the rear of a truck, the supervisor would not have assisted in its removal.

As I have observed, the relevant onus lies upon the Council to establish a breach of duty of care on the part of the employer. It submitted that the employer should have made inquiries as to the methods available for the lifting of heavy manhole covers to enable the respondent to carry out his duty of inspection and, if required, cleaning without risk of injury. Obviously, the employer was not required to inspect every part of the Council's area where there may be sewer manhole covers. Reasonable care required no more that it inform itself as to the methods available to enable heavy manhole covers to be lifted safely and to notify itself that those methods were being implemented. The primary judge accepted that the Council had in place a safe system of work in this respect and the nature of that safe system would have been conveyed to the employer had it sought out the information.

In the present case his Honour found that it was the casual act of negligence on the part of the respondent's supervisor, Mr Gillard, that caused his injuries. In other words, Mr Gillard did not implement the safe system of work which the Council had put in place. In these circumstances it is difficult to see how that employer could be liable for Mr Gillard's casual act of negligence.

True it is that there is no evidence that it made any inquiry as to the Council's system of work for the purpose of removing heavy manhole covers notwithstanding its knowledge that the respondent would be involved in such work. It could therefore be asserted that it was in breach of its duty of care in failing to make that inquiry. But if it had made that inquiry it can be inferred that it would have been informed that there was in place a safe system of work and that it was being implemented in accordance with the Council's directions to its employees.

In these circumstances, any breach on the part of the employer in failing to make the relevant inquiry was not causative of the respondent's injury. In other words, it could not be said that the respondent would not have suffered the injury he did but for the failure of the employer to inquire of the Council as to the system of work it had in place for the removal of concrete sewer manhole covers.

Accordingly, in my view, even if the primary judge was in error in finding that there was no breach of duty on the part of the employer, that breach was not causative of the respondent's injuries. Not having made any contribution to those injuries, it follows that no apportionment of liability is appropriate. His Honour was therefore correct to decline to reduce the respondent's damages pursuant to s 151Z(2)(c).

Conclusion

It follows from the foregoing that the Council's appeal fails on all grounds except one, namely, that there should be a reduction in the amount of future out-of-pocket expenses by the sum of $20,000.00, thereby reducing the total damages to $733,369.59.

As to the costs of the appeal, the major issue related to his Honour's approach to the medical evidence on which the Council has been unsuccessful. It has had minimal success in reducing the quantum of damages and has failed on the s 151Z issue. In the circumstances, in my view the appellant should pay 90 per cent of the respondent's costs of the appeal.

Accordingly, I propose the following orders:

(1) Appeal allowed in part.

(2) Set aside Order 1 made by his Honour Judge Levy SC on 23 November 2012.

(3) Judgment for the respondent in the amount of $733,369.59.

(4) The appellant to pay 90 per cent of the respondent's costs of the appeal.

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Decision last updated: 22 November 2013

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Statutory Interpretation
Civil Procedure

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Citations

Shoalhaven City Council v Humphries [2013] NSWCA 390

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Medium Neutral Citation:	Shoalhaven City Council v Humphries [2013] NSWCA 390
Hearing dates:	23 August 2013
Decision date:	22 November 2013
Before:	Barrett JA at [1]; Leeming JA at [2]; Tobias AJA at [12].
Decision:	(1) Appeal allowed in part. (2) Set aside Order 1 made by his Honour Judge Levy SC on 23 November 2012. (3) Judgment for the respondent in the amount of $733,369.59. (4) The appellant to pay 90 per cent of the respondent's costs of the appeal. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	TORTS - damages - workplace injury - whether primary judge erred in evaluation of medical evidence - whether assessment of damages for future medical expenses and domestic assistance excessive - whether damages ought to have been reduced pursuant to Workers Compensation Act 1987, s 151Z
Legislation Cited:	Civil Liability Act 2002, s 15 Workers Compensation Act 1987, s 151Z Occupational Health and Safety Regulation 2001, cl 77 Uniform Civil Procedure Rules 2005 ("UCPR") Sch 7, cl 5(c) Work Health and Safety Regulation 2011, cl 76
Cases Cited:	Andar Transport Pty Ltd v Brambles Ltd [2004] HCA 28; (2004) 217 CLR 424 Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588 K & M Prodanovski Pty Ltd v Calliden Insurance Limited [2012] NSWCA 117; (2012) 60 MVR 456 Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99; (2008) 172 IR 453 Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164 TNT v Christie [2003] NSWCA 47 Watts v Rake [1960] HCA 58; (1960) 108 CLR 158
Category:	Principal judgment
Parties:	Shoalhaven City Council (Appellant) Kevin Humphries (Respondent)
Representation:	Counsel: Mr R S Sheldon SC (Appellant) Mr B G McManamey (Respondent) Solicitors: DLA Piper (Appellant) Slater & Gordon Lawyers (Respondent)
File Number(s):	2012/384390
Decision under appeal	Jurisdiction: 9101 Citation: Humphries v Shoalhaven City Council [2012] NSWDC 216 Date of Decision: 2012-11-23 00:00:00 Before: Levy SC DCJ File Number(s): 2011/83900

[2013] NSWCA 390

22 November 2013

Key Legal Topics

Areas of Law

Negligence & Tort

Statutory Interpretation

Civil Procedure

Legal Concepts

Appeal

Damages

Expert Evidence

Remedies

Costs

Statutory Construction