Tregilgas v Victorian WorkCover Authority

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

GENERAL LIST

Case No. CI-20-02458

DANIEL ANDREW TREGILGAS	Plaintiff
v
VICTORIAN WORKCOVER AUTHORITY	Defendant

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JUDGE:	HIS HONOUR JUDGE MISSO
WHERE HELD:	Melbourne
DATE OF HEARING:	25, 26, 27, 28, 31 August, 1, 2, 3, 6, 7, 8, 9 September, 4 and 5 October 2021 (e-hearing)
DATE OF JUDGMENT:	26 November 2021
CASE MAY BE CITED AS:	Tregilgas v Victorian WorkCover Authority
MEDIUM NEUTRAL CITATION:	[2021] VCC 1781

REASONS FOR JUDGMENT
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Subject: DAMAGES
Catchwords:              Damages – injury to the lower back in the course of employment – prior lower back condition – work tasks imposing significant strain on the plaintiff’s lower back – whether the plaintiff suffered further injury in the course of his employment – whether the defendant was guilty of a breach of its common law duty of care – whether the plaintiff was guilty of a breach of Manual Handling Code of Practice and/or the Occupational Health and Safety (Manual Handling) Regulations 1999 and the Occupational Health and Safety Regulations 2007 – assessment of damages – whether the plaintiff was guilty of contributory negligence by working against medical advice
Legislation Cited:      Wrongs Act 1958; Occupational Health and Safety (Manual Handling) Regulations 1999; Occupational Health and Safety Regulations 2007
Cases Cited:Tregilgas v Victorian WorkCover Authority (Ruling) [2021] VCC 1780; Pasqualotto v R & L Pasqualotto [2013] VSCA 21; Pasqualotto v R & L Pasqualotto (No 3) [2014] VSC 26; Jones v Dunkel (1959) 101 CLR 298; Czatyrko v Edith Cowan University (2005) HCA 14; Victorian WorkCover Authority v Carrier Air Conditioning Pty Ltd [2006] VSCA 63; Young v SMYBB Pty Ltd [2021] VSC 445; Govic v Boral Australian Gypsum Ltd [2015] 47 VR 430; Fox v Wood (1981) 148 CLR 438; Podrebersek v Australian Iron & Steel Pty Limited (1985) 59 ALJR 492; Casey City Council v Kohn [2006] VSCA 82
Judgment:                  Defendant in breach of both its common law duty of care and statutory duty of care, entitling the plaintiff to an assessment of damages.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A D B Ingram QC with Dr J Plunkett	Slater and Gordon Lawyers
For the Defendant	Mr J L Batten with Ms K Brady	Wisewould Mahony

HIS HONOUR:

Introduction
1The plaintiff commenced this proceeding by Writ endorsed with a Statement of Claim, and later, a Further Amended Statement of Claim, pleading that between August 2006 and February 2014, he performed work in a manner which resulted in him suffering injury to his lower back. He alleged that his injury was caused by the negligence and breach of statutory duty of his employer, Keyesash Nominees Pty Ltd (“Keyesash”), which was the trustee for the Smith Family Trust, trading as Bob Jane T-Mart Oakleigh.
2Keyesash is a deregistered company. The plaintiff named the Victorian WorkCover Authority (“the VWA”) as defendant pursuant to s601AG of the Corporations Act 2001. Despite some initial skirmishing relevant to the position occupied by the VWA and its responsibility for the alleged negligence and breach of statutory duty of Keyesash, the VWA did not ultimately suggest that the proceeding could not be conducted by the plaintiff against it nor that its position in defending the proceeding on behalf of Keyesash was diminished or compromised in any way.
3The plaintiff alleged that Keyesash was in breach of its common law duty to take care for the safety of the plaintiff as his employer, and, additionally, that it was in breach of the Manual Handling Code of Practice and/or the Occupational Health and Safety (Manual Handling) Regulations 1999 (“the 1999 Regulations”) and the Occupational Health and Safety Regulations 2007 (“the 2007 Regulations”). I will refer to the particularisation of the breaches later in these reasons.
4By its Defence, Keyesash denied that it was negligent or in breach of either of the Regulations. It pleaded that if it was either negligent or in breach of either of the Regulations, that the plaintiff was guilty of contributory negligence. It also pleaded that the plaintiff’s cause of action which arose before 29 January 2012 was barred by the provisions of the Limitation of Actions Act 1958. I delivered a separate Ruling[1] relevant to the limitation defence in which I provided reasons for striking out that defence.
[1]Tregilgas v Victorian WorkCover Authority (Ruling) [2021] VCC 1780
5The parties very conveniently and very helpfully collapsed both the evidence and the issues in their respective written submissions which were extensive in their treatment of the evidence, and by reference to authorities which condescended to the issues which have fallen for my determination. I have followed the issues as defined by the parties in the course of analysing the evidence, considering the application of principle, and in reaching the conclusions which I have set out below. As is often the case in trials of this length, the complexity of what is perceived in the trial most often breaks down to significantly lesser issues based on a focus on a significantly reduced body of evidence.[2]
[2]Plaintiff’s written submissions dated 4 October 2021, and defendant’s written submissions dated 23 September 2021.
6The interference with the Court’s capacity to undertake its work in the ordinary way by the COVID-19 virus resulted in the proceeding being heard as a cause by Zoom. In order to hear the proceeding in this way, the parties gave their consent that the parties appear, witnesses give evidence, and counsel make submissions by audio-visual link pursuant to the relevant provisions of the Evidence (Miscellaneous Provisions) Act 1958.

Executive summary
7For reasons which will be developed in the body of these reasons, I have concluded that Keyesash was in breach of its common law duty owed to the plaintiff, and in breach of the 1999 Regulations and the 2007 Regulations, entitling the plaintiff to an award of damages.

The Plaintiff’s prior lower back condition
8The plaintiff’s first foray into the world of tyres occurred when he obtained work as a tyre fitter and in general workshop duties with Goodyear Tyres in St Kilda in 2002. He described it as hard work. He worked there for about two years, before moving on to work with two Bob Jane T-Mart franchises.[3] The first franchise he worked for was in Oakleigh. It was the franchise owned and operated by Keyesash. He worked for Keyesash for about ten months, before working for another franchise in Hoppers Crossing. He then returned to work for Keyesash on 31 August 2006.
[3]        Transcript 67
9When the plaintiff returned to work with Keyesash he was experiencing problems with his lower back which he described as muscle-related problems. He did not consider that those problems would interfere with his capacity to work for Keyesash. For reasons which will become more obvious later in these reasons, it is necessary to refer to the evidence of the plaintiff’s prior lower back problems in sufficient detail to demonstrate what they were.
10The plaintiff first experienced lower back problems when he was about sixteen years of age. He consulted a medical practitioner, who referred him to have an x‑ray of his lower back. He was informed that the x-ray demonstrated that he has a mild scoliosis in his lower spine. He recalled having some physiotherapy, and that the problems he was having with his lower back settled down.[4]
[4]        Transcript 65
11The plaintiff commenced attending the Wyndham Health Care clinic (“the clinic”) in Werribee in about 2001. It is the clinic that he has attended up to the present time.[5] He was taken to the clinical notes of the clinic for the purpose of demonstrating what medical treatment he sought and obtained between 2001 and the time when he returned to work with Keyesash.
[5]        Transcript 65
12On 1 October 2002, the plaintiff saw Dr Philip Soffer, general practitioner. His clinical note discloses that the plaintiff hurt his back shifting furniture over the last three days. His lower back was locally tender, with reduction of all movements. He diagnosed that the plaintiff had suffered a strain, and he prescribed him analgesia and advised him to rest. He gave him a medical certificate for 1 to 3 October 2002. The plaintiff did not remember much of the details, but remembered that the cause of the pain that he experienced was bending down picking up a garden hose which he believed caused him to pull a muscle in his lower back. He remembered the was working for Goodyear Tyres at the time and took a day off. He also recalled that the problem with his lower back settled down.[6]
[6]        Exhibit E and Transcript 66
13Next, on 29 December 2002, the plaintiff saw Dr Amreesh Saxena, general practitioner. His clinical note discloses that the plaintiff suffered lower back pain after lifting a heavy concrete bag. The clinical note refers to a slipped disc and, on examination, tenderness around the lumbosacral area with no neurological deficit. He diagnosed that the plaintiff suffered from musculoskeletal back pain/slipped disc and prescribed the plaintiff Celebrex and advised him to rest. The plaintiff remembered that he was doing some concreting around his house. He remembered being prescribed Celebrex and being advised to rest. He recalled that the problem with his lower back settled down after he rested.[7]
[7]        Exhibit E and Transcript 66
14Next, on 26 May 2003, the plaintiff saw Dr Michael Waechter, general practitioner. The clinical note does not refer to any issue which the plaintiff was having with his lower back. It refers to the plaintiff’s job as a tyre fitter, and a problem he was having with short-term memory relevant to tyre sizes. He recalled telling Dr Waechter that he was working as a tyre fitter.[8]
[8]        Exhibit E and Transcript 67
15Next, on 10 November 2003, the plaintiff saw Dr Edward Giam, general practitioner. The clinical note discloses that the plaintiff reported recurrent episodes of low back pain, but with no sciatica. It would appear that he told Dr Giam that he had a CT scan performed a few years beforehand which demonstrated a disc prolapse. He was prescribed Celebrex and Codalgin Forte, and was advised to use local heat, to consider physiotherapy and swimming for exercise. The plaintiff’s recollection was equivocal as to whether a CT scan was performed or not, however, he recalled having slight disc bulging, but it is unclear of the source of that recollection.[9]
[9]        Exhibit E and Transcript 67-68
16Next, on 19 March 2004, the plaintiff saw Dr Getulio Lumbes, general practitioner. His clinical notes disclose that the plaintiff had suffered an exacerbation of lower back pain, had a history of disc prolapse, and it was noted that Celebrex was not effective. He was prescribed Voltaren Rapid.
17Next, on 4 January 2005, the plaintiff saw Dr Lumbes. His clinical notes disclose that the plaintiff had a ten-year history of low back pain with no overt trauma, but worsening, and lately with occasional left-sided sciatica. His occupation of tyre fitter was noted. Dr Lumbes questioned whether the plaintiff had disc bulging at L3, L4 and L5. He was prescribed Mobic and was referred to have a CT scan. The plaintiff told Dr Lumbes, and the other medical practitioners at the clinic, that he was a tyre fitter. He was not told by any of those medical practitioners that he should not be working as a tyre fitter nor any safety measures that he should take while working as a tyre fitter.[10]
[10]        Exhibit E and Transcript 68
18Next, on 20 January 2005, the plaintiff returned to see Dr Lumbes, by which time the results of the CT scan were in Dr Lumbes’ possession. The radiologist reported that the plaintiff had slight posterior bulging of the L3-4 intervertebral disc, moderate posterior bulging of the L4-5 disc with moderate flattening of the theca, and minimal posterior bulging of the L5-S1 disc. He noted some osteophyte formation within the right L5-S1 neural canal which might have been impinging on the emerging nerve root.[11] Dr Lumbes made some very cryptic notes of the appearances on the CT scan in the clinical notes. He advised the plaintiff to have physiotherapy or chiropractic, and hydrotherapy. He prescribed him Voltaren.[12]
[11]        Exhibit GG
[12]        Exhibit E
19Next, on 14 January 2006, the plaintiff saw Dr Amreesh Saxena. His clinical notes disclose that the plaintiff was experiencing chronic lower back pain, that he was undertaking wheel alignment work, and on examination, he was tender over his spinal muscles without there being any evidence of any neurological deficit. It would appear that he was then referred for a further CT scan. He was also prescribed Voltaren Rapid and Di-Gesic for pain relief.[13] The radiologist reported that the plaintiff had a mild annular bulge at L3-4 with slight effacement of the thecal sac, a moderate annular bulge at L4-5 with only slight effacement of the thecal sac and a mild annular bulge at L5-S1, and no other significant abnormality.[14] The plaintiff repeated that he was not told by Dr Saxena that he should not be working as a wheel aligner or that he should do anything relevant to his lower back while working as a wheel aligner.[15]
[13]        Exhibit E
[14]        Exhibit HH
[15]        Transcript 69
20Next, on 19 January 2006, the plaintiff saw Dr Ata Eqbal, general practitioner. His clinical notes disclose a cryptic reference to the CT scan and the appearances on it, a prescription for Di-Gesic, and receipt of a courtesy letter from Mr Michael Dooley, orthopaedic surgeon, dated 23 January 2006.[16]
[16]        Exhibit E
21The plaintiff saw Mr Dooley on 20 January 2006. He noted that the plaintiff had a long history of lower back pain with intermittent leg pain, and that he had a recent stir up of pain. He noted the medication he had been prescribed, and that he worked as a wheel aligner. On clinical examination, he noted that the plaintiff walked without a limp, that there was a good range of motion in the plaintiff’s spine and that there were no neurological deficits. He considered that the CT scan, and I presume the most recent one, demonstrated degenerative changes affecting the plaintiff’s lower lumbar spine. Mr Dooley advised the referring general practitioner that he considered that the plaintiff had disc degenerative disease. He recommended that he undertake general exercise for fitness as the best treatment. He also advised that there was no need for any further radiological investigations nor that operative treatment was indicated.[17] The plaintiff said that Mr Dooley did not give him any advice relevant to the appropriateness of the work he was doing as a wheel aligner.[18]
[17]        Exhibit L
[18]        Transcript 69-70
22Next, on 18 March 2006, the plaintiff saw Dr Mar Teng, general practitioner. His clinical notes disclose that he was provided with medication, being Voltaren Rapid, with three repeats, and Di-Gesic, also with three repeats. It is likely that the medication was prescribed to treat the plaintiff’s lower back pain.[19]
[19]        Exhibit E and Transcript 286
23Next, on 19 April 2006, the plaintiff saw Dr Sione Sisifa, general practitioner. His clinical notes disclose that the plaintiff had suffered an exacerbation of lower back pain. He was referred for a second opinion to Mr Michael Khan, orthopaedic surgeon. The plaintiff said that he did not read the letter of referral, and could not remember the circumstances of the exacerbation referred to in the clinical notes nor whether he saw Mr Khan.[20]
[20]        Exhibit E and Transcript 287
24I pause here to make a number of observations to create perspective and context relevant to the plaintiff’s prior lower back condition. Throughout the period covered by the clinical notes I have reviewed, the plaintiff was employed full time with Goodyear Tyres and with Bob Jane T-Mart franchises. There is little evidence to suggest that he was incapacitated in any significant way during this period. The next observation that must be made is that it was at the consultation with Dr Giam on 10 November 2003 that there is a first reference to a disc prolapse. It would appear to be an account given by the plaintiff of his understanding of the appearances on a CT scan, however, no CT scan has been produced. I think this is particularly important, because the subsequent clinical notes appear to assume that the plaintiff had a history of a disc prolapse which does not appear to me to have been verified until the CT scans of 18 January 2005 and 18 January 2006 were undertaken. Neither of these CT scans demonstrated a disc prolapse, although, the second in time refers to disc bulges. I think this is of particular relevance in determining what injury the plaintiff suffered during the relevant period of his employment with Keyesash. Mr Dooley did not consider the CT scans demonstrated any disc prolapse. The subsequent MRI scan which the plaintiff underwent through referral by Mr Han does not demonstrate a disc prolapse.[21]
[21]        Exhibit JJ and Exhibit NN
25Before reviewing any further medical evidence, it is now relevant to turn to the work which the plaintiff performed with Keyesash.

Tyre fitting
26Initially, the plaintiff was employed as a tyre fitter and backup wheel aligner. He did that work for about two to three months, before he commenced work as a wheel aligner, which is the work he then performed for the balance of his time. Despite that part of his work being relatively short lived, it was nonetheless relied upon by the plaintiff as a contributor to the injury which he says he suffered in the course of his employment with Keyesash.
27At the time when the plaintiff commenced work with Keyesash, he was having problems with his lower back, but they were not so bad. He believed that they were more muscle related than anything else. He considered that he was capable of performing the work that he knew the job entailed. His hours of work were from 8.00am to 5-5.30pm from Monday to Friday and 8.00am to 4.00pm on Saturday. He was provided with a half-hour lunch break, and other breaks when it was quiet. He described the pace of the work as being sometimes quiet, but at other times it was really busy to the extent that he would be run off his feet. The staffing arrangement comprised three tyre fitters, one or two wheel aligners and sales staff. The owner of the franchise was Neville Smith and the manager was Danny Ereglidis.[22]
[22] Transcript 107
28The tasks involved in tyre fitting were many. The plaintiff described each of the steps involved in tyre fitting from the arrival of a customer’s car to the point where the tyres had been fitted and the car was then ready to have the wheels aligned. I will summarise each of the steps in the chronological order in which the tasks are undertaken.
29Approximately forty truck deliveries were made each day of tyres of varying brands and sizes. The tyres weighed as little as 2 to 3 kilograms for a small vehicle like a Mazda 323, and up to 15 to 20 kilograms for a BMW X5 series. The tyres were manually unloaded and then moved within the premises to be stacked on racks.[23]
[23] Transcript 79-80
30The plaintiff is about 5 feet 8 inches in height. The racks on which the tyres were stacked were about 6 feet in height. The job of stacking the tyres was usually a two-person job. One person would either climb onto the racks or stand on a box, milk crate or stool. The person on the ground would then pass the tyres up to the person standing in the higher position. The tyres of lighter weight were usually stacked higher up, with the tyres which were of more significant weight being stacked lower down.

31When tyres were needed, the process of removing tyres at height was undertaken by that person raising his arms, grabbing the tyre and pulling it down. On some occasions, it was necessary to climb onto the rack to remove tyres when they became wedged against one another and were difficult to remove.
32On occasions, usually driven by a lack of space, tyres were barrel stacked.[24] I understood that to mean stacked one on top of the other.
[24]        Transcript 80-81
33The vehicle wheels comprised two parts: One part was the rim, and the second part was the tyre fixed over the rim. About 70 per cent of the time all four wheels were removed from a vehicle.
34After the wheel had been removed the air was let out of the tyre while the wheel was sitting on the ground. That was done using a valve core remover which I understand is applied to the valve of the tyre and allows a release of all of the pressured air in the tyre.
35The next step is for the bead of the tyre to be broken. I understand that to mean that the seal of the tyre on the rim is broken so that the tyre can then be removed from the rim. It is performed using a fitting machine. The tyre is locked into place. An hydraulic arm is then pulled down which breaks the seal. The seal needs to be broken on both sides of the wheel, so it is then lifted, turned over and the same process is then repeated.
36The next step is the fixing of the new tyre onto the rim. Once that is completed, the tyre is taken to a balancing machine. The wheel spins at high speed which allows an attached computer to calculate whether balancing weights need to be attached to the wheel.
37It is after all of the steps have been taken that the wheel is then refitted to the vehicle. Overall, the plaintiff estimated that he would be manually handling each wheel about half a dozen times per vehicle, and the weights he would be lifting and carrying would be as little as 5 kilograms and as heavy as 30 kilograms.[25]
[25]        Transcript 74-79
38After the plaintiff was asked to dissect each step in the process of tyre fitting, he was then asked a general question as if to draw the steps together, and he then gave a much more informative series of answers:
Q:“Okay. Excuse my ignorance again. I’ve got to the stage where you’ve taken the wheels off, you’ve removed the tyres, you’ve refitted new tyres? Or have we not got to that point yet?---
A:Well, I’ll restart it all. When we get the car in, when we have the car booked in, we drive the car on to the hoist, we put rubber blocks in underneath, between the hoist and the underneath of the car, and that’s to prevent the hoist from doing any damage to the bottom of the car. Then we’d pick up the - because the hoists were - one was activated hydraulically, the other three were activated by air. The hydraulic one, we’d just basically - once we put the blocks in, we just press a button and it raises the car up. The air ones, I don’t know how it does it, but we press a pedal and it puts air into say like a tank and it lifts the vehicle up somehow. I don’t know how it all works technically.
Q:And having done that, what your next step?---
A:Okay. Once the vehicle is raised off the ground, then we grab the rattle gun, put the necessary socket attachment on to remove the wheels or they could be bolts, depending on the make of the car. Most of the cars it was wheel nuts, but your European cars, like your Mercedes Benz, BMWs, Peugeots, they would be bolts. Take those off, then once all the nuts are undone, you pop the wheels off the hub, the wheel hub, and wheel it over to the tyre fitting machines.
Q:All right. Which we’ve already discussed?---
A:Where we let the air out of the tyres because if you try and break a bead with air still in the tyre, it can be quite dangerous; you can have tyres explode, and that’s not good.
Q:Okay. So is that the process in which you’re saying you might manually handle up to six or eight times, I think you said, each tyre and wheel?---
A:Yes.
Q:That’s to that point. Then I was - I think I understood to that point.   What followed after that?---
A:Once the tyres were all fitted and balanced and bolted back on to the car, we’d lower the car down, make sure all the wheel nuts were tight manually with, say, a torque wrench. That way the nuts weren’t overtightened by the rattle gun and if somebody was pulled over on the side of the road and they had a puncture repair and they were doing it themselves, they’d be able to take the wheel off themselves with the tyre equipment that they had with the car.
Q:Yes, all right?---
A:Once we’ve torqued up the wheel nuts, whoever was doing the wheel alignments - if it was me, I would drive the car off the hoist and drive it on to the wheel alignment ramp.”[26]
[26]        Transcript 84-85

39The plaintiff described the hoists that were available which were employed in performing the tyre fitting and wheel aligning:
Q:“Now, in fitting the tyres, was that done with the assistance of tyre-fitting hoists?---
A:The hoists would lift the car up off the ground. It’s sort of like a jack, except it uses - it picks up the whole car.
Q:Okay. I was just going to ask that. At Oakleigh, how many tyre-fitting hoists were in use?---
A:We had four hoists.
Q:All right. To what height did the hoists lift the vehicles?---
A:One hoist could raise the vehicle up so that the wheels were at basically my chest height, but the other three hoists would only lift the car up, say, 6 to 8 inches off the ground.
Q:All right. What was the difference between - in terms of the physical nature of the work - between the 6 to 12 inches off the ground hoist and the waist-height hoist?----
A:Well, with the cars that were lower to the ground, there was a lot more bending and squatting involved because you had to get down.
Q:And when you’re bending and squatting, what weights are you manually handling at that time?---
A:For bending and squatting, it’s usually just the weight of the rattle gun, which was powered by the air compressor as well.”[27]
[27] Transcript 83

Wheel aligning
40The plaintiff accepted that of all of the work which he performed with Keyesash, that approximately 90 per cent of his time was committed to wheel aligning, and it would appear that he commenced that work after about two months into the period of time he worked for Keyesash.[28]
[28]        Transcript 331
41The plaintiff gave extensive evidence of the individual tasks involved in wheel aligning, both during examination-in-chief and cross-examination. Some of the descriptions he gave of parts of the undercarriage of a vehicle which he worked on were difficult to understand. It was during re-examination that the plaintiff relied upon eleven photographs which he obtained from the internet which collectively were a pictorial demonstration of the tasks involved in wheel alignment.[29] Before turning to each of the photographs, it is necessary to provide a short summary of the plaintiff’s evidence.
[29]        Exhibit D
42After tyres have been fitted onto a vehicle, the process of wheel alignment is undertaken if the customer enters into a separate arrangement to have the new tyres wheel aligned. The reason for that is that a separate charge is made for wheel alignment. If the customer has requested a wheel alignment, the vehicle is removed from the hoist and driven onto a ramp on which the vehicle would sit for the purpose of the wheel alignment being undertaken. The plaintiff was shown a photograph which he provided to Mr Bill Contoyannis, forensic engineer, of an example of the type of ramp used for the purpose of undertaking a wheel alignment.[30]
[30]Mr Contoyannis provided a report dated 9 July 2021 – Exhibit EE – in which he referred to the photograph of the ramp provided by the plaintiff which is Exhibit C, and found on page 10 of Mr Contoyannis’ report
43After reading the transcript of the plaintiff’s evidence-in-chief and cross-examination, relevant parts of the report of Mr Contoyannis, and looking at the eleven photographs and the plaintiff’s description of what each photograph demonstrated, I appreciated that the actual parts of the undercarriage of the vehicle on which the plaintiff carried out work was less relevant in importance, but what was very relevant and very important were the postures which the plaintiff needed to adopt in gaining access to those parts of the undercarriage of the vehicle, the tools he needed to use, and the strain which performing that work placed on his spine.
44I think it is important to at least provide a short summary of the steps taken by the plaintiff to undertake the wheel alignment from start to finish so that the photographs make some sense. The first step was driving the vehicle from the hoist on which the tyre fitting had been undertaken and then onto the ramp from which the wheel alignment would be undertaken. The second step was to position the wheels into a satisfactory position on the ramp so that the computer used in wheel alignment could be set up to provide the plaintiff with information relevant to whether the wheel alignment had been undertaken successfully. The third step was the use of a device known as a “creeper” which was a platform fixed onto six wheels or casters. The plaintiff would lie on the creeper on his back, and then would move underneath the vehicle for the purpose of accessing parts of the vehicle which were necessary to adjust as part of the process of successfully undertaking a wheel alignment. The fourth step was moving his body satisfactorily in order to access parts of the vehicle so that tools could be applied, principally spanners, to make what adjustments were necessary.
45In the context of the general description I have provided thus far, the plaintiff was then taken to the eleven photographs for the purpose of providing a better description of each step in the work he undertook in performing wheel aligning.
46The first step the plaintiff undertook was to drive the vehicle up onto the ramp. The plaintiff identified the ramp as being similar to the ramp shown in the photograph he provided to Mr Contoyannis.[31]
[31]        Transcript 89-90
47The plaintiff then gave a fairly long description of the equipment that would be used to undertake the wheel alignment:
Q.“Okay. Tell us what happens - if we have that there to assist us in understanding - tell us what happens in the alignment process?---
A:Okay. I would drive the vehicle up to the end of the ramp so the car is fully on to the ramp. It’s completely horizontal, it’s not on an angle, or anything like that. I would have four cameras and four clamps. I’d put the clamps on to the – bolt the clamps on to the wheels, then I’d put the camera on to - the wheel alignment camera on to the clamp because there would be a shaft on the clamp where I’d slide the wheel alignment camera on to and then I’d lock the - it had like a locking bolt to stop the camera from moving, so it stays horizontal. Once the four cameras were on, I would do what’s known as a camber castor swing, where I would be standing outside the vehicle and I’d have the driver’s side window down and I’d turn the steering wheel left and right by following the computer program. It would tell me to turn the steering wheel to a certain position, it will tell me to hold that position and turn it to the opposite side, hold the position; that’s how it does the measurements. Then I’d straighten the steering wheel. I used what’s known as a steering lock, which is basically a lock to stop the steering wheel from moving when I’m doing the wheel alignment. To do the wheel alignment, I would get on to a creeper, lying flat on my back.”[32]
[32]        Transcript 90-91

48The next step was the use of the creeper. The plaintiff would use it to slide himself under the vehicle and then undertake the necessary adjustments on the rear of the vehicle and then on the front of the vehicle. It is now the best time to refer to the eleven photographs to demonstrate what work the plaintiff did under the vehicle. As I outlined in paragraph 41, these eleven photographs were obtained from the internet, and do not depict the actual equipment used by the plaintiff in his employment.
49Photograph 1 – the plaintiff described the photograph as demonstrating a vehicle on a ramp. It was a different ramp to the one he had available for his use. He referred specifically to the front driver-side wheel which is sitting on a turntable which I understood to enable the positioning of the wheel as required as part of the process of wheel alignment.[33]
[33]        Transcript 414
50Photograph 2 – the operator in the photograph is checking the air pressure of a tyre. The plaintiff referred to the turntable on which the wheel is sitting, describing it as a turntable with which he was not familiar, and different to the turntable on the ramp he had available for his use. He later described the object on which the wheel was sitting as a sliding plate.[34]
[34]        Transcript 414-415
51Photograph 3 – the operator is applying a wheel clamp to the wheel over which a camera would be slid for the purpose of measurements being taken in the process of wheel alignment. The camera which the plaintiff identified in the photograph was not the same as the camera which he applied to a wheel, but similar to what he used. The plaintiff referred to the fact that the photograph shows the vehicle on a scissor lift. I will refer to the importance of that to the plaintiff’s case later in these reasons.[35]
[35]        Transcript 415-417
52Photograph 4 – the operator is using a spanner to adjust an eccentric bolt which can be moved to the left or the right. The adjustment changes the angle of the wheel to the left or the right. Although the plaintiff performed that adjustment, he did not perform it in the position occupied by the operator. He performed it while on the creeper.[36]
[36]        Transcript 417
53Photograph 5 – the operator is using a spanner to loosen off a nut on the steering rack end. Although, the plaintiff performed that task, he did not perform it in the position occupied by the operator. He performed it while on the creeper.[37]
[37]        Transcript 417
54Photograph 6 – this photograph is the same as the photograph which the plaintiff found and was provided to Mr Contoyannis.[38] The plaintiff added that what is not shown in that photograph are the turntables on which the wheels of the vehicle would sit, and a shelf on which he would put his tools.[39]
[38]        Exhibit C
[39]        Transcript 417-418
55Photograph 7 – the operator is using spanners to undo the eccentric bolts. The plaintiff added that the height between the floor of the workshop and the underside of the vehicle would be somewhat higher than shown in the photograph, and that he would be working directly under the point where the operator is undoing the eccentric bolts. The purpose in undoing and adjusting the eccentric bolts will permit a reading on the computer and will allow the angle of the wheels to be adjusted through the tightening of the eccentric bolts.[40]
[40]        Transcript 418
56Photograph 8 – the operator is doing much the same work as described in Photograph 7. The alignment would be performed by looking at the computer screen from where the plaintiff was positioned on the creeper.[41]
[41]        Transcript 419
57Photograph 9 – the operator is inspecting the adjustments that he has made. The plaintiff used the photograph to describe relevant parts of the vehicle which he would need to pay attention to in undertaking wheel adjustment, and, in particular, the control arm and the eccentric bolts. The particular eccentric bolt he referred to is adjusted to change the camber and tow of the vehicle.[42]
[42]        Transcript 419
58Photograph 10 – the plaintiff described the operator as tightening up the bolts which he referred to in Photograph 9. The operator is using socket spanners. The plaintiff used non-socket spanners – one in each hand – when performing the tasks shown in the photograph.[43]
[43]        Transcript 420
59Photograph 11 – the plaintiff used the photograph to describe the relevant parts of the vehicle which he would adjust, and, in particular, a locking nut, tyre rod ends, and a shaft with a ball end pressed into a socket. He described sometimes replacing the tyre rod ends, especially if there was excessive movement because without replacement where there was excessive wear and tear, it would not be possible to undertake a wheel alignment.[44]
[44]        Transcript 420-421
60As the plaintiff was taken through each of the photographs and was asked to describe what he saw in the photographs, he was also asked whether what was demonstrated in the photographs was consistent with the work which he performed. Subject to the obvious refinements he made relevant to the different ramp, and the operator’s position and use of tools, he otherwise said that the photographs aided him in describing the work which he performed and was consistent with the work which he performed.

Strain on the Plaintiff’s lower back
61The plaintiff performed the wheel alignment using the creeper from 2006 when he transitioned from tyre fitting to wheel aligning. It was the device he then used throughout the remainder of his employment with Keyesash until he ceased work in February 2014.[45]
[45] Transcript 94-95
62The plaintiff estimated that over the period of his employment, the larger vehicles became more prevalent. He described the type of larger vehicle as being consistent with a BMW X5. He estimated that in the early part of his working life with Keyesash, he worked on larger vehicles about 40 per cent of the time, and as the years progressed and larger vehicles became more prevalent, he estimated that at the end of his working life the prevalence of larger vehicles had increased to about 60-70 per cent.[46] The type of vehicle the plaintiff worked on became important in the context of the posture he said he had to adopt in order to perform work on the vehicles while lying on the creeper.
[46] Transcript 94-96
63The plaintiff estimated that performing a wheel alignment could take 20 minutes, and up to an hour, depending on the complexity of the work to be done. He would always perform that work lying on his back on the creeper, having to lift himself up to varying angles to access the parts of the vehicle which I have spent some time describing, and which are essential to completing a wheel alignment. The plaintiff described the extent to which he suffered strain on his spine:
MR INGRAM:
Q:“What I’m really trying to get at is what strain, if any, was placed on your spine when you’re working from the creeper underneath a vehicle for, say, anything from half an hour up to an hour?---
A:Because I’d be - depending on the height of the vehicle once it’s on the ramp - some cars are - the body is quite low to the ground and it just depends on how much room is underneath.
Q:I understand that. Let’s say you’ve got a Toyota Landcruiser - go back to His Honour’s BMW X5, or whatever it is. How much is your spine raised above the level of the creeper working on that vehicle?---
A:I would be basically in a sitting position but my legs would be out in front of me. So basically I’d be in a sitting position underneath - as I am now, except with my legs fully out.

Q:All right. On such a vehicle, was there any strain placed upon your spine doing this particular aspect of the work?---
A:With the design of the BMWs, it would be - instead of sitting like this, I’d be sort of also hunched over a little bit, so it would be posture related, I suppose.”

HIS HONOUR:
Q:“Mr Tregilgas, you’ve been asked a number of times and I’m interested in your answer. Mr Ingram has asked you what, if any, strain was placed on your spine in whatever posture you adopted while on the creeper while doing a car such as a BMW X5. Can you direct your mind to that?---
A:Yes, I’d be positioned how I’m positioned now, but sometimes I’d be hunched over a little bit more and it would put more significant pressure on to the lower part of my spine.”
MR INGRAM:
Q:“In any vehicle at all, was there a posture that you could adopt when you’re working under the vehicle where you weren’t straining your spine at all?---
A:Depending on the car. Say if it’s a Ford Falcon, I would mainly be on the back because where the positions of the adjustment arms are, I could reach them quite easily while flat on my back.
Q:So what percentage of vehicles required you to elevate your spine above the creeper and place strain on your spine as you were doing it?---
A:May be about 40 percent, 50 percent.”[47]
[47] Transcript 92-93

64And later:
Q:“… What I’m getting at is when you were working on these increasingly large vehicles, what strain was being placed upon your spine as you attempted to work from the trolley underneath those vehicles and I think you got to a point of saying that some of the vehicles have larger or more difficult to remove nuts; something along those lines?---
A:Yes. When I’m underneath and I have to - and I’ve got the spanner on the end of the nuts, sometimes I end up in awkward positions, depending on where the adjusters are, because some adjusters aren’t directly above me if I’m laying in, say, the middle of the car, underneath.
Q:Yes. And what does that involve insofar as your spine is concerned?---
A:Certain vehicles, the adjustments were more to the side of the car, towards where the wheels are, and the wheels are actually on that flat part of the ramp, so it’s also awkward to get to.
Q:Yes. And what did that involve with your spine?---
A:By putting extra - it was extra pressure and just different, awkward positions.
Q:And how frequently did you have to work in awkward positions involving your spine when you are doing this work?---
A:It was daily.
Q:And for what periods of time during each day were you working in awkward positions, so far as your spine was concerned?---
A:The amount of times it would have been depended on the amount of cars. The more cars, the more I was underneath and it was awkward.”[48]
[48] Transcript 99-100

65And later:
Q:“You said it depended on the number of cars that you were processing each day. What, on average, was the number of cars that you were processing each day?---
A:Well, the most that I’d done in one day was about 30 cars, on my own, but usually it would be about - anywhere between 10 and 15 cars. We were busier on a Saturday than we were on a - during the week.
Q:Yes. And can you give us some idea for what number of hours during your working day you were on the trolley under the car doing this work on an average working day?---
A:It would take - it usually takes about five minutes to set the cameras up once the car is up on to the hoist, up on to the alignment ramp, it takes another couple of minutes to do the camber caster swing. Underneath, if the bolts are seized and I have difficulties getting them off, I could be under there for half an hour. Other times it could be just a quick in and out 10-minute job.
Q:Just as an average, as a percentage of your working day, what percentage were you working in this environment?---
A:Underneath the cars, it would be - I’m just trying to work it out. About 70 per cent underneath the vehicle. …
Q:And of that 70 per cent of the time, how much of that were you working with your back raised above the position where it was lying on the trolley underneath the car?---
A:I’m just trying to think. It would have been most of the time, actually, when I was under there.
…
Q:Of the 70 per cent of the time that you were on the trolley underneath the car, how much of that time were you spent with your back not lying on the trolley but raised above it to any extent in order to perform your work?---
A:It could be - maybe about 80 per cent of the time.
Q:Now, when you are working with your body - your back raised above the level of the trolley, could you feel anything in your back as you worked?---
A:Yes, I would.
Q:What could you feel?---
A:It would be like a sharp pain.
Q:And how often was that sharp pain present when you were working in that condition?---
A:About 70 per cent of the time, but I would just try and focus on doing the job and not worry about the pain.”[49]
[49] Transcript 101-102

Knowledge of the owner and manager
66The plaintiff told Mr Ereglidis that he was experiencing pain in his spine maybe within about five months after commencing employment with Keyesash. The way he told him of the pain he was experiencing occurred in passing. Mr Ereglidis responded by telling the plaintiff to rest for a little bit, and that is what the plaintiff would do.[50] The plaintiff was absent on occasions when he was referred to undergo scans of his spine. On those occasions, he took time off work. He said that he told Mr Smith and Mr Ereglidis that he would be absent from work for the purpose of undergoing scans.[51]
[50]        Transcript 103-104
[51]        Transcript 107
67The plaintiff also engaged in discussions with Keyesash, and presumably Mr Smith and/or Mr Ereglidis, that he had seen or was seeing Mr Han and other medical practitioners.[52]
[52]        Transcript 188
68The plaintiff said that Mr Smith and/or Mr Ereglidis had seen him wearing a back brace for a number of years, as had other members of staff of Keyesash. He wore it on top of it is uniform, and presumably in plain sight. He said that Mr Smith and/or Mr Ereglidis knew that he had a problem with his back.[53]
[53]        Transcript 200
69The defendant tendered some of its Interrogatories which it delivered for the examination of the plaintiff, and the plaintiff’s Answers.[54] For present purposes, it is Interrogatories 3(a) and 3(b) and the plaintiff’s Answers which are relevant. The Interrogatories define “the period” being the period of employment pleaded by the plaintiff in paragraph 6 of the Amended Statement of Claim. Interrogatory 3(a) asked the plaintiff to state the work tasks he performed referred to in paragraph 6 of the Amended Statement of Claim. Interrogatory 3(b) then asked:
“[D]uring the period, did you make any report and/or complaint to the employer with respect to any of the tasks listed in paragraph (a) of this interrogatory?”
[54]        Exhibit 1
70The plaintiff’s answer was an unequivocal “No”. I refer to the Interrogatories now, because it relates to the plaintiff’s submissions that the common law duty of care includes an obligation on an employer to take special precautions to avoid injury to an employee where the employer knows that the employee has a predisposition to injury.[55] The plaintiff submitted that Keyesash knew that the plaintiff had a symptomatic lower back condition from an early point in time as a consequence of what the plaintiff told Mr Ereglidis and from observations that must have been made that the plaintiff was wearing a back brace. Therefore, it should have taken those special precautions. The defendant challenged whether Keyesash had any such knowledge, and, in any event, it submitted that the plaintiff’s Answer to Interrogatory 3(b) is the evidence that I should prefer, that he said nothing consistent with making a report and/or a complaint about the tasks referred to in Interrogatory 3(a).
[55]        Pasqualotto v R & L Pasqualotto [2013] VSCA 21 at paragraph [19] ("Pasqualotto")
71The defendant emphasised its submission by relying on the instructions provided by the plaintiff to Mr Contoyannis found in his principal report relevant to whether the plaintiff made any complaint that he was suffering lower back pain due to the work he was performing:
“4.22… He thought it best to be quiet about the difficulties he was experiencing with lifting and handling the heavy wheels and tyres as well as working beneath the vehicles for wheel alignment as he did not want to be seen as ‘whinging about it’.”[56]
[56]        Exhibit EE

72The plaintiff accepted, with some equivocation, that he must have said that to Mr Contoyannis, but at the same time he denied that he kept quiet about the difficulty he was “experiencing with wheels, tyres and alignment”. The plaintiff submitted that the paragraph in Mr Contoyannis’ report that he was taken to did not paint the full picture, because the preceding paragraph referred to the plaintiff reporting that he had suffered a tendon injury to his shoulder while performing his work which led to him working at a reduced pace for some time and performing light duties. He submitted that the report of that injury is of importance, because it demonstrates that the plaintiff did in fact make complaints, and, therefore, it is likely that he informed Keyesash that he was having problems with his lower back.
73I will dispose of this issue now. Clearly, Interrogatory 3(a) does not ask the plaintiff whether he suffered an injury to his lower back. It is limited to the work tasks which the plaintiff was required to perform referred to in paragraph 6 of the Further Amended Statement of Claim. Interrogatory 3(b) asks whether the plaintiff made a report and/or complaint, not whether he made a report and/or complaint of suffering an injury. To the extent that the defendant only relied upon the focus of Interrogatory 3(b), it was my impression, and confirmed after reading the transcript, that the plaintiff did not make a report and/or complaint of suffering an injury expressly.
74Furthermore, I accept the plaintiff’s evidence that he may have kept quiet about the problems he was having with his work, and did not want to whinge about those problems, however, none of that is inconsistent with the plaintiff’s evidence of what he told Mr Ereglidis not long after he commenced work with Keyesash. A desire to keep quiet and not whinge is not the same as the plaintiff having said nothing.

Instruction, warning, risk assessment
75The plaintiff said that, to his knowledge, there was no one employed by Keyesash at the franchise premises who was appointed as an Occupational Health and Safety Officer. He said, in summary:
·        he was not provided with any induction as to the manner in which he was to perform the work safely.
·        he was not provided with any training as to the manner in which he was to perform the work safely.
·        he was not provided with any video demonstrating the system of work which he was to adopt to perform the work safely.
·        there were no posters or warning diagrams at the franchise premises describing the manner in which the work was to be performed.
·        He adopted a system of work by watching the way other employees went about their work, and he copied what they did.
76The plaintiff said that to the best of his knowledge, no risk assessments were undertaken relevant to any risks or hazards associated with the work that he performed.[57]
[57]        Transcript 87-88

The Plaintiff – alternative safer methods
77Unlike the evidence the plaintiff gave about the difficulties he encountered performing wheel aligning, and the alternative safer methods by which his work had been undertaken, which I will refer to next, he gave very little evidence, if any at all, about the risks that were associated with tyre fitting nor what alternative safer methods there were for him to undertake that work. That is not unsurprising perhaps for two apparent reasons – firstly, he worked as a tyre fitter for only about two or three months without there being much medical evidence to suggest that it contributed to lower back pain in that two or three months or materially so over the whole period of his employment with Keyesash. Secondly, it is common for the evidence of the alternative safer methods to be given by an expert in a relevant area of science. In this case, that task was left to Mr Contoyannis.
78The plaintiff said that there was no four-post hoist installed for his use at the franchise premises to undertake wheel aligning. He described how it would be used:
Q:“What’s the difference from the hoists you were using to a four-post hoist?---
A:A four-post hoist is - there would be four vertical pillars, one on each corner, and it would lift up - they would be - I think it’s usually hydraulically operated and it would have - instead of driving a car up on to a ramp, you’d drive the - you could drive up - it would be like more of a lower ramp setting, where you drive the car on to that little ramp, make sure that the car is secured so it’s not going to roll back or anything, make sure your handbrake is on and in park. With a four poster you could - once all that’s done, you can raise the vehicle up to above head height.”[58]
[58]Transcript 86. The question was premised on the basis of a hoist which the plaintiff was using, when in fact the evidence is clear that no hoist was available to perform wheel aligning, only tyre fitting

79The plaintiff was familiar with the use of a four-poster hoist. When he worked with Goodyear, a four-poster hoist was installed and used for the purpose of wheel aligning. He then described what difference using a four-poster hoist would make:
Q:“Go and tell us the difference that was afforded to you when you had a four-post hoist available?---
A:When there’s the four-poster hoist, we could lift the car up, say just a little bit, so that I can do the camber caster swing on the - to do the initial measuring of the angles. Once I’ve measured all the angles and locked the steering wheel so it’s straight, I can then raise the four-post hoist above my head, lock it into position and I can actually walk underneath the vehicle and do the adjustments.
Q:And did that - - -?---
A:And do that while I was standing.
Q:And did that have any difference in terms of the strains that would be placed upon your spine?---
A:Yes, there was no strain at all doing it that way.”[59]
[59] Transcript 87

80The plaintiff’s evidence which I have just referred to occurred at the time when he was asked questions in evidence-in-chief about tyre fitting; however, the answer he gave about the use of a four-poster hoist occurred to me to be evidence of a safer alternative to using the ramp which the plaintiff was provided to undertake wheel aligning. I say that because it is clear that there was no need to raise a vehicle above head height to perform adjustments when undertaking tyre fitting. The only adjustments which the plaintiff referred to were those associated with wheel aligning.
81In any event, the plaintiff described a safer alternative to using the ramp which he was provided to undertake wheel aligning:
Q:“So far as you’re aware, from your own knowledge, are there other ways in which the job that you were doing on the trolley under the car, other ways in which that work can be performed?----
A:No, there wasn’t, unless they had to completely change - get rid of the ramps that we were using and replace it with what’s known as either the four-poster hoist or there was also what’s known as a scissor lift hoist.
Q:Were either of those measures implemented at any time?---
A:No.
Q:To your knowledge, in undertaking wheel alignment work, did other locations use other systems apart from what you’ve just said - the scissor lift and the four poster?---
A:Yes.
Q:What did other premises use to do the task?---
A:Well, the other premises would have been - where I previously worked, they had the four-poster hoist. Another place - when I was doing some deliveries, there was a place – I’ve forgotten the name of the company because they’ve gone - it’s called The Tyre Factory and they had the pit where they would drive the cars in and it would be basically at ground level but there’d be a pit underneath so the worker can go underneath and do the adjustments underneath the car. I stopped by after the business had changed hands and all the old equipment was gone and they had a scissor lift hoist. That was many months after I’d finished up there.
Q:Can I just clarify that. At the same premises at which you were working, after you finished up, a scissor lift hoist was introduced?---
A:Yes.
Q:At premises at which you’d previously been employed, a four-poster hoist was present?---
A:No. When I was there - when I was working there, there was no four-poster hoists.
Q:No, I said premises at which you’d previously been employed, I didn’t - - -?---
A:Oh previous. When I was working at Goodyear St Kilda, they had a four-poster hoist.
Q:And at other premises which you are aware of, there was a pit from which the work could be performed?---
A:Yes. That was a place that I had visited. I hadn’t worked there, though.
Q:No. What was the position of the person undertaking the alignment who was working in the pit? Was he bent over? What was his stature?---
A:He would have been standing.
Q:And if a scissor lift hoist was used, what was the position of the person working - doing the same work where there was a scissor lift hoist?---
A:They’d be standing.
Q:And if a four-poster lift was used, what was the position of the person doing this work?---
A:Standing, because a four-poster hoist would lift the car up above head height so you can just walk under the car without having to bend.”[60]
[60] Transcript 104-106

82Both the plaintiff and Mr Contoyannis have knowledge of other businesses where tyre fitting and wheel aligning were undertaken. They had both observed that hoists were used when wheel aligning was undertaken.

The evidence of Mr Contoyannis
83Mr Contoyannis provided a principal report to which I have made reference,[61] and a short supplementary report dated 7 September 2021.[62] In his principal report, he set out his qualifications and experience which were not challenged, nor was there any challenge to his specialised knowledge based upon his training, study and experience as a consulting mechanical engineer.
[61] Exhibit EE
[62] Exhibit FF
84The substance of his principal report appears to me to be devoted to the plaintiff’s work in tyre fitting, with significantly less reference to the plaintiff’s work in wheel aligning. Although the plaintiff submitted that the assumed facts which underpinned Mr Contoyannis’ opinion are sufficiently proven on the evidence of the plaintiff, I am not convinced that that is entirely so. However, I am also not convinced that it undermines the persuasiveness of the opinion he expressed, both in his reports and in his oral evidence.
85In relation to the tasks involved in tyre fitting, Mr Contoyannis recounted what he described as “Assumed Facts” in paragraph 4 of his report. I have compared the content of that paragraph with the plaintiff’s evidence, and I am satisfied that the materials provided to him, summarised in that paragraph, are a reasonably accurate description of the work the plaintiff did in tyre fitting.

86Mr Contoyannis’ principal report is long and detailed. It contains a distillation of standards referred to in paragraph 6 of his report which led him to deal with the specific tasks he identified which posed a risk of the plaintiff suffering a musculoskeletal injury to his lower back. I think I can cut to the chase as it were by referring to the following:
·        Tyres should be stacked on a rack rather than barrel stacking as described by the plaintiff. The use of a purpose-built racking and access system would obviate the manual handling and exertion of force required of the plaintiff in stacking tyres in the existing racking and then removing them when needed. In paragraph 6.5, he referred to two diagrams. One shows a man standing on a tyre to gain access to a tyre above head height in a barrel stacking style. The diagram denotes that is a problem with manual handling above height and with the forces required. By contrast, there is a diagram showing a purpose-built racking system with a staircase with handrails on wheels which would permit safer access to the higher levels of the racking. In a further diagram in paragraph 7.24, there are depictions of the use of tyre lifters to convey tyres as required, and a diagram demonstrating that tyres should be stacked with spacing to avoid the problem the plaintiff referred to, that they would become wedged together.
·        The removal of tyres from a vehicle when elevated on a hoist, as depicted in a diagram in paragraph 6.6, necessitates manually removing the wheel and then lifting and carrying it. In contrast, the next diagram shows a lifting device on rollers onto which the wheel can be transferred, obviating the manual handling and exertion of force. Where there is no hoist, and the work is done at a lower level, the manual handling in lifting and carrying the tyre can be obviated by transferring the tyre at that height to a lifting device with integrated rollers, both for the purpose of removing the wheel and replacing the wheel. That is demonstrated in two diagrams, also in paragraph 6.6.
·        The need to carry and then lift a tyre onto a turntable for the purpose of breaking the bead and removing the tyre manually could be obviated by installing a tyre-removing and fitting machine which he referred to in paragraph 4.9, and is depicted in a picture of a device which would both break the bead of the tyre and remove it, avoiding some manual handling and some exertion of force that the plaintiff experienced. There is a further diagram in paragraph 6.7 showing an automated tyre changer with an integrated lifting device.
87Additionally, and in paragraph 7, Mr Contoyannis then discussed and analysed the tyre fitting work which the plaintiff undertook:
“7.2 The hazardous manual handling nature of tyre fitting duties has been known for some time up to and prior to Mr Tregilgas’s injury. Handling tyres in the manner he described - lifting on to machines with the wheels attached, retrieving tyres for upper racks - are hazardous manual handling tasks.
7.3 The Tyre Fitting guides (see section 6) have controls for the identified hazards when handling tyres (lifting and lowering) and for the reduction of the risk of musculoskeletal; injuries. These controls include:
§If accessing tyres that are stored above shoulder height, use platform ladders and/or step ups.
§If possible limit height of racking.
§By using an automated system with an integrated fitting device for tyre changing. If this is not practicable, use mechanical aids to handle tyres and wheels.
§By using a mechanical aid to lift and align the wheel.
§Where the vehicle is minimally elevated, use a levered lifting device.

7.4 I note that evidently none of these controls had been implemented at the time of Mr Tregilgas’s work. Some were implemented after his injury.
7.5 In my opinion, he was performing hazardous manual handling tasks when handling tyres or wheels and tyres with weights which would vary between 5-35 kg (see Appendix on page 30) and potentially more.
7.6 It is not only the absolute weight lifted which can expose a person to risk, but also the manner in which the lift is performed, and any awkward posture which may need to be adopted in order to perform it. Further, injury data tells us that musculoskeletal injuries from manual handling can occur in various parts of the body, including the spine, the upper limbs and lower limbs. Generally, the parts of the body that are put under greatest load, compared with their capacity to tolerate load, other ones that fail first.
7.7 Mr Tregilgas was performing many of these lifting tasks in awkward positions such as kneeling or squatting, as well as reaching above shoulder level or lifting while standing on racking.
7.8 Both the postures and forces required to perform these tasks in the manner Mr Tregilgas was performing them should have immediately been identified by his employer is exposing him to risk of injury, (shoulders, neck and back-see paragraph 7.6), as has since been identified in the aforementioned Tyre Fitting guides (see section 6).”

88Mr Contoyannis then referred to the Victorian Code of Practice for Manual Handling 2000 (“the Code”), and in particular, in paragraph 7.12-7.15 of his report, which are relevant to the carrying out of tasks which involve high force. Those tasks are referred to in the Code as constituting a risk. In paragraph 7.16, Mr Contoyannis considered the tasks performed by the plaintiff in the context of the Code and was of the opinion that the lifting of tyres and wheels involved high force, and that the plaintiff was placed at risk of injury by engaging in those tasks.
89In paragraph 7.24, Mr Contoyannis was of the opinion that there were measures which were available to the defendant to prevent the plaintiff being exposed to the risks which he identified. Essentially, they are:
·        carrying out an audit and review of manual handling;
·        identifying of risks and then implementing controls and ensuring that workers are committed to implementing those controls;
·        implementing controls such as those found in the Tyre Fitting guides he referred to in section 6 and paragraph 7.3;
·        providing training in manual handling and risk identification;
·        encouraging workers to report difficulties with their work in terms of the production of pain and discomfort;
·        encouraging workers to suggest possible improvements to systems of work;
·        implementing the recommendations in the Tyre Fitting guides he referred to in section 6; and
·        by using each of the devices which I referred to by reference to the diagrams in his principal report.
90Mr Contoyannis operated on the understanding that there were no mechanical aids available to the plaintiff to move tyres. That was in fact incorrect and contrary to the plaintiff’s evidence that there was a device which he described as “basically like a trolley” which was available at Goodyear St Kilda, and at Bob Jane T-Mart Oakleigh and Hoppers Crossing. He did not use it if the tyres he needed to carry were light in weight.[63]
[63]        Transcript 324
91Mr Contoyannis’ supplementary report deals specifically and only with the 1999 Regulations. It is necessary to explain at this point that the purpose of the supplementary report was to deal with an amendment to the Amended Statement of Claim pleaded in a Further Amended Statement of Claim to include a pleading of the 1999 Regulations. He referred to the 2007 Regulations in his principal report, and in the body of it addressed the relevance of the applicable definitions in Regulation 1.1.5 and the general duties imposed upon an employer in Chapters 2 and 3.
92Mr Contoyannis was of the opinion that the plaintiff was engaged in manual handling tasks consistent with the definitions “application of high force”, “manual handling”, “hazardous manual handling” and “musculoskeletal disorder” in Regulation 5. He was of the opinion that the plaintiff was engaged in hazardous manual handling – the first part of that opinion was directed to the repetitive or sustained awkward postures the plaintiff adopted when doing the adjustments in the wheel alignment work, and the second part was directed to the lifting and carrying in the tyre fitting work. He then referred to the obligation on an employer under Regulations 14 and 15 relevant to the undertaking of a risk assessment and risk control. I think it is tolerably clear, and it will become clearer when I turn to Keyesash’s defence, that there was no significant challenge to the plaintiff’s evidence, and no significant challenge to Mr Contoyannis’ evidence.
93Mr Contoyannis gave evidence and was cross-examined. He initially provided a summary of the basis upon which he considered that there were manual handling tasks which contravened the 1999 Regulations and the 2007 Regulations:
Q:“If we can get under way. Can you tell us precisely what, from an engineering perspective, were manual handling tasks which the plaintiff performed which had the potential to contravene any statutory duty of the type that I’ve mentioned?
A:The primary tasks that I determined or that I’ve opined may have posed risk are the lifting of tyres and wheels, the physical lifting of them, and then there was some of the awkward postures in which some operations would be taking place. They’re the primary tasks that I consider would involve some hazardous manual handling and therefore risks associated with that hazardous manual handling.”[64]
[64]        Transcript 670-671

94Mr Contoyannis was then shown the eleven photographs, with a short explanation of what they demonstrated.[65] He said that he was familiar with the wheel aligning work shown in the photographs, and has personally undertaken wheel alignment work of that kind. After viewing the photographs, he made the following observations:
“Okay. You can see the gentleman’s head there is turned to his left as he’s performing the adjustment. That is because he’ll be looking at the laser lines and laser levels to get the feedback of where exactly the alignment should be and that’s a fairly important aspect of that task. So not only does he have to be doing the adjustments of the bolts that we’ve seen in all the subsequent photos but he also has to be looking at exactly what that alignment is and ensuring that as he tightens it, it doesn’t move off alignment as he performs that task.”[66]
[65]        Exhibit D
[66]T675
95I pause here to interpolate Mr Contoyannis’ reference to the work tasks involved in wheel aligning. The plaintiff told him that after he commenced working with Keyesash, that he also undertook wheel alignment work, although, it would appear that the plaintiff told him that he also did a lot of tyre fitting.[67] He was also told by the plaintiff that he used a creeper to move under vehicles to do adjustments in wheel aligning, and that when he was under a vehicle he put his head out sideways and looked rearward at the same time just to the effect of the adjustment he was making on the alignment of the wheel.[68] I understood, in reading the balance of his principal report, that his reference to means of obviating the risk were a reference not only to tyre fitting, but also to wheel aligning.
[67]        Exhibit EE, and at paragraph 4.16 of his principal report
[68]        Exhibit EE, and a paragraphs 4.17-4.18 of his principal report
96I understood that his reference to the operator turning his head and looking to the laser lines and laser levels is a reference to the position occupied by the operator in Photographs 7 to 11 in which the position of the operator’s head can be seen, and in order to see the computer used in the wheel alignment work, he would need to have his head in a particular position while working with tools on the relevant parts of the undercarriage of the vehicle. The balance of Mr Contoyannis’ evidence-in-chief amounted to what appeared to me to be a running commentary on each of the relevant Regulations in the 1999 Regulations and the 2007 Regulations and their application to the facts of the plaintiff’s case, and, where relevant, whether there had been compliance. It appeared to me to be a repetition of the content of both of Mr Contoyannis’ reports and, in the end, a matter for me, not entirely for a witness, to determine the issues raised by the reliance upon the relevant Regulations.

Keyesash – the factual contest
97Keyesash cross-examined the plaintiff and Mr Contoyannis at significant length. The cross-examination did not include any suggestions that the plaintiff and Mr Contoyannis’ evidence was in conflict with evidence which Keyesash would call. Indeed, the whole of the submissions made by Keyesash was that the evidence of the plaintiff was implausible at various levels, or that a dissection of it disclosed that the work tasks posed him no risk, or that the alternative safer means referred to by the plaintiff and Mr Contoyannis relevant to tyre fitting and wheel aligning would not have eliminated or reduced the risk of the plaintiff suffering a lower back injury.
98The plaintiff submitted that I should accept his and Mr Contoyannis’ evidence, because it has not been challenged in any material way. I have read the transcript of the plaintiff’s evidence-in-chief, cross-examination and re-examination. I am satisfied that the plaintiff made his best efforts to listen to the questions asked of him and to answer them truthfully. He did not always give a responsive answer, and he could not always remember historical facts, but the fact that he answered many questions about, for example his medical treatment by saying that he did not know or could not remember, does not impact upon his creditworthiness. It may, however, impact upon his reliability. Keyesash submitted that the plaintiff’s lack of creditworthiness and reliability are central to its attack upon the whole of the plaintiff’s case. While that might be so, it is not an attack which I consider succeeded in any significant way. I accept the plaintiff’s evidence, without much reservation, that he performed the work as a tyre fitter and wheel aligner in the way he described and with all of the associated difficulties in performing that work which he identified.

Jones v Dunkel
99The plaintiff submitted that the defendant’s failure to adduce evidence from Mr Smith and Mr Ereglidis gives rise to the application of the rule in Jones v Dunkel.[69] The plaintiff’s application of the rule can be stated succinctly as follows:
[69](1959) 101 CLR 298 per Dixon CJ at 308 and Windeyer J at 312 and 320-321. See also Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361 per Heydon, Crennan and Bell JJ at paragraphs [63]-[64]
100The plaintiff points to the fact that neither Mr Smith nor Mr Ereglidis were called by Keyesash to give evidence. They are both in Keyesash’s camp. That failure to call them is unexplained; however, that unexplained failure does not permit any gap in the evidence to be filled for the benefit of the plaintiff. It is impermissible to speculate what Mr Smith and Mr Ereglidis might have said had they been called. It is permissible to infer that the evidence of Mr Smith and Mr Ereglidis would not have helped Keyesash’s case. In the circumstances of Keyesash’s failure to call either of them, I can more readily accept the evidence of the plaintiff relevant to the work he performed in tyre fitting and wheel aligning which is evidence on which both Mr Smith and Mr Ereglidis could have given evidence.
101The defendant submitted that I cannot draw such an adverse inference against Keyesash, and I understood that there were two bases underwriting that submission. The first is that there is no property in witnesses, meaning that the plaintiff could have called Mr Smith and Mr Ereglidis if he wanted to, and the second is the position of the defendant as the statutory insurer and not the actual employer.
102It is true that there is no property in witnesses, and that would apply to Mr Smith and Mr Ereglidis; however, they are representatives of the party who the plaintiff alleges were in breach of the common law duty of care and in breach of statutory duty and therefore they are in Keyesash’s camp. There is no novelty in this situation, which makes the submission curious and inconsistent with what underwrites the reasoning in Jones v Dunkel,[70] that if certain circumstances exist, then there is a rule of law which can avail a party in the position of the plaintiff.
[70]ibid
103The fact that the defendant is the statutory insurer and not the actual employer makes no difference. It is surprising that the defendant has sought to distinguish its position by reference to s364 of the Workplace Injury Rehabilitation and Compensation Act 2013. There is nothing in s364 which distinguishes the position of the employer and the defendant if it is the defendant conducting the defence of the proceeding on behalf of the employer. Nor was I referred to any authority for the proposition that such a distinction has been recognised. The plaintiff went to some effort to refer to the basis upon which it has brought the proceeding and referred to the purpose of s601AG of the Corporations Act. I do not think I need to do more than refer to the fact that the authorities make it clear that the defendant stands in the shoes of Keyesash in all respects through its decision to conduct the defence of the proceeding on its behalf.[71]
[71]Almario v Allianz Australia Workers Compensation (NSW) Insurance Limited (2005) 62 NSWLR 148 per Ipp JA at paragraph [34]
104I see no impediment by statute or in the common law that suggests that the ordinary principles of law apply to this proceeding as they would to any other common law proceeding involving a workplace injury, and that includes the application of the principle for which Jones v Dunkel[72] stands as authority.
[72]supra

Common law duty
105The defendant made submissions relevant to the common law duty of care owed by an employer to employee which misstate the law. I propose to set out what are well founded principles which govern the duty of care owed by the employer to the employee.
106Both parties referred to Czatyrko v Edith Cowan University[73] for different purposes, but what it provides is a straightforward, workable statement of the duty of care:
“… An employer owes a non-delegable duty of care to its employees to take reasonable care to avoid exposing them to unnecessary risks of injury. If there is a real risk of an injury to an employee in the performance of a task in a workplace, the employer must take reasonable care to avoid the risk by devising a method of operation for the performance of the task that eliminates the risk, or by the provision of adequate safeguards. The employer must take into account the possibility of thoughtlessness, or inadvertence, or carelessness, particularly in a case of repetitive work.”[74]
[73] (2005) HCA 14
[74] Ibid at paragraph [12]
107The defendant submitted that in the absence of complaints by the plaintiff about the system of work and how the system of work might be varied to make it safer is in some way an answer to the plaintiff’s case that Keyesash owed him the relevant duty of care and was in breach of it. In doing so, the defendant seemed to somewhat shift a portion of responsibility onto the plaintiff to devise a system of work. If that is what was intended by the defendant, then it is plainly wrong. An employer does not discharge the duty of care by leaving it up to the worker to devise the system of work.[75] The duty of care owed by an employer is not predicated upon their being a complaint made by the worker of some risk identified by the worker in a system of work, and how the risk might be remedied. That completely runs against the grain of established law that the duty of care is owed by the employer to the worker and that it is nondelegable.

[168]      Transcript 135
[169]      Transcript 109
220The plaintiff worked subsequent to the advice given by Mr Han in the way he described, but continued to undertake the work tasks of a wheel aligner without any variation, however, his lower back condition deteriorated to the extent that it required referral back to Mr Han, radiological investigations, and ultimately, the first surgery. The plaintiff ceased work before the first surgery on 19 November 2012. Subsequent to undergoing that surgery, he experienced considerable improvement in the level of his symptoms. He wanted to return to work because he was feeling depressed. Mr Han advised him to return to work, but to gradually build up the work tasks and hours of work. He returned to work in February 2013, working three days per week for hours per day on light duties. He did simple work, such as sweeping floors and obtaining stock.[170]
[170]      Transcript 135, 137 and 153-155
221The plaintiff felt that his lower back condition was improving, which led him to return to wheel aligning over an eight-month period, and I presume from February 2013. However, by March 2013, he saw Mr Han because he was experiencing pins and needles in his legs below the knee and increased lower back pain. At that stage, he was more of a backup wheel aligner and still doing other bits and pieces, which I understood to be consistent with the light duties he initially returned to.[171] By early November 2013, his lower back deteriorated, as had his leg pain. He was referred back to Mr Han. The condition of the plaintiff’s lower back was so bad by that stage that Mr Han advised him to undergo the second surgery. He had a vague recollection that Mr Han gave him three options, which were to give up work altogether, reduce his days and hours of work, or to have the radical surgery advised by Mr Han. It is clear that he opted for surgery, but before the surgery was undertaken, he reduced his days of work down to three days per week and his hours of work were reduced. He did the simplest tasks, for example driving cars up onto ramps, putting blocks under the cars and light tasks, with the other employees doing all the heavy lifting. He had, in effect, ceased doing all heavy manual work, and by 16 February 2014, he was sent home, and he has not worked since.[172]
[171]      Transcript 155
[172]      Transcript 157-159
222The plaintiff decided to undergo the second surgery because he thought it would help him get back to work.[173] He then described the rehabilitation treatment he had through Dr Thomas and Dr Ong, physiotherapy, psychological treatment, prescription of medication, and his attempts to lose weight and to exercise.
[173]      Transcript 160
223The plaintiff described suffering pain in his lower back and mid back, with pain radiating into his thighs, and pins and needles in his calves and feet. He described the pain and pins and needles in his legs as being there 24 hours a day, seven days per week, whether he is sitting or standing. At present, he is prescribed Tramadol, 200 to 400 milligrams daily, to treat pain, and 50 milligrams of Pristiq three times per day to treat depression. He described walking and exercising results in his lower back hurting a lot. He described significant interference with his sleep due to pain about once or twice a month which makes him feel like “crap” the following day. He described a limited sitting tolerance of 15 to 20 minutes, limited walking tolerance, and limited ability to squat, bend and lift.[174]
[174]      Transcript 160-161,164 and 168-170
224The plaintiff said he hates his quality of life. He was asked whether he would be able to go to the movies, out to dinner or like activities, and he said that he could, but he no longer sees the need for it anymore because he is no longer interested. He described undertaking domestic tasks of a modest nature, such as washing clothes, vacuuming the floors, but needing breaks because if he does not take breaks he feels like he has a knife twisting in his spine, and when that starts it does not stop and he just has to put up with the pain.[175]
[175]      Transcript 171-172
225The plaintiff described his vocational training as being very limited. He referred to his attempt at studying for a Certificate IV in IT which he estimated was about twenty years ago. He described not having any other skills and training beyond tyre fitting and wheel aligning. He described not having any training in the three alternative jobs that are proposed by the defendant, namely, despatch clerk, weighbridge operator and sales coordinator. He said he has no training in any of those areas nor computer skills at any level. He said it would be a struggle for him to be reliable in undertaking vocational training. He then described his daily levels of pain as probably stable, and that he has good days and bad days, but when he has good days, the pain is always there and he just puts up with it.
226The plaintiff was cross-examined at significant length on a number of issues. My impression is that the following issues that I am about to summarise formed the main platform upon which the defendant addressed the issues relevant to the assessment of the plaintiff’s damages.
227The plaintiff agreed that he has not taken any step since January 2014 to pursue any vocational or training avenues which may outfit him to obtain employment within the range of his residual capacity for work. He has not looked for work since January 2014.[176]
[176]      Transcript 175, 263-264, 396 and 398
228Under further cross-examination, the plaintiff described the disabilities endured by his children. Apart from the eldest child, who appears to be significantly intellectually disabled, one of his twins has experienced problems at his school and has been treated as an inpatient at the Royal Children’s Hospital. The other twin does not share those problems. The plaintiff described his eldest child as being “pretty good” behaviourally. He stays in his room and plays on his computer during the week, and from Monday to Friday he attends Mambourin Enterprises to learn life skills. He catches the bus to go to that institution. One of the twins who experiences behavioural problems was taken out of school because he was bullied. At the time of trial, the other twin was at home because of the closure of schools due to the COVID-19 lockdown. When the twins are at school the plaintiff might drive them to their school, but they usually walk to school and home.[177] The purpose of the cross-examination about the predicament of his children was to establish that they are in need of either the plaintiff or his wife acting as their carer. The plaintiff agreed he is their carer. He is paid the sum of $100 as a carer’s allowance for his eldest child.[178] The plaintiff agreed that his wife returned to full-time work as a language teacher in a primary school in 2016, working five days per week. The defendant submitted that it was the arrangement that the plaintiff and his wife came to which impinges upon his entitlement to recover damages for his past and future loss of earnings and earning capacity. I will return to this subject later in these reasons.
[177]      Transcript 261-262 and 177
[178]      Transcript 262
229Under further cross-examination, the plaintiff agreed that he undertakes exercises to build up core strength. The exercises involve using a red band, a treadmill, pulling weights and some push-ups.[179] The plaintiff also agreed that he has attempted a modest amount of running.[180] He also agreed that he undertook work to replace the shock absorber on his vehicle. He jacked up the vehicle to undertake that work. He was assisted by his eldest child, who did more of the work than the plaintiff,[181] but under re-examination, he described that rather than taking two days to do that work, it took him about four months.[182]
[179]      Transcript 186
[180]      Transcript 179.
[181]      Transcript 181-182, 185 and 422-423
[182]      Transcript
230Under further cross-examination, the plaintiff was asked why it was that he had minimal treatment between 7 September 2010 and 14 May 2012. The plaintiff said that it was a period when he had a good run for a while. He was stiff in the morning until he got moving, however, the pain was present, although manageable. He would suffered flare ups during that period.[183]
[183]      Transcript 692-693
231Under further cross-examination, the plaintiff was taken through the clinical notes from 2002 through to nearly the present time, although not every entry. The purpose was partly relevant to the question of causation, but what surfaced from the cross-examination was that the plaintiff has suffered similar problems with his lower back for a significant period of time prior to 2006 which continued in what the defendant submitted was a continuation of an established lower back problem. What also surfaced from that cross-examination was the fact that the plaintiff has suffered from a number of unrelated medical conditions, namely, a problem with his right shoulder, carpal tunnel syndrome, a cardiac problem, headaches/ migraine and varying degrees of psychological/psychiatric symptoms. I do not think the other medical conditions are particularly relevant, because none of them appear to me to have interfered with the plaintiff’s capacity to work as a tyre fitter and wheel aligner.
232The last witness was the plaintiff’s wife, Joan Tregilgas.[184] She was called to give evidence and was cross-examined. She was born in 1971 and is now fifty years of age. She married the plaintiff in June 2001. She is a primary school teacher by occupation of almost thirty years. She is presently working full time at a school in Hoppers Crossing, working from 7.30am to about 5.00pm each day. She has taken time off throughout her working life for the birth of her children, and for other medical problems which saw her going in and out of hospital about eleven times in the first ten years of her marriage to the plaintiff. When the plaintiff was working full time, she worked a mix of part time and full time because the school where she worked was very flexible.
[184]      Transcript 647-657 and 658-659
233The plaintiff helps her look after their children. He is able to help her around the house. He cooks dinner. He does the washing and vacuuming as much as he can, but she has observed that he takes longer to do it and needs breaks in between domestic tasks. He helps her in the garden, which she regards as her domain and is the place where she goes to relax and take out her frustrations.
234She has observed the impact of his lower back condition on the way he behaves. She described how he behaves, depending on each day and whether he has had a good night’s sleep. She has observed his back to flare up quite a bit. When that happens, he is limited in what he can do physically. He will then spend time sitting on the couch or on the bed. He does not complain much because she considers him to be stubborn, but she is able to observe that he is in pain. When in pain, he becomes very agitated. He cannot sit for long or stand for long and he walks up and down pacing.
235She has observed him to take medication. She has observed that when he does, he phases in and out, not being able to think things through. She writes things down for him which makes it easier for him to remember. He is on medication every day and night. She has observed that if he is in extreme pain, he takes medication and either sleeps it off or sits on the couch, and when he is in that state, she described having to step up to the plate and do the extra work necessary in a domestic context and get her children to help out. She estimated that the extreme pain occurred about once a week or sometimes once every two weeks. She again said it would depend on how he has woken up on that day and what he has done during the day. She has observed him to have very frequent flare ups of pain. The flare ups can affect him for as long as the whole day. She has observed that he can only sit down for a certain period of time, stand for a certain period of time and has to do things at his own pace. That evidence was given in answer to a question about whether the plaintiff could undertake light work. It was not evidence of much weight, but it did demonstrate something of his capacity to function on a daily basis.
236She said that her decision to work full time at present was influenced by the plaintiff’s lower back condition. She said that he is unable to work, so she has to work to pay the mortgage. She said that if he had not been injured, that she would probably be working part time in order to help out with the children, and I infer that the plaintiff would have continued working full time.
237She said that the plaintiff’s lower back condition has affected her relationship with the plaintiff on a number of levels. There is no intimacy between them. He is unable to do things with the family. She usually takes the children out because he finds it difficult to walk, sit and stand.
238Under cross-examination, she repeated that she and the plaintiff agreed that she would return to work full time, and that they arrived at that arrangement in about 2015, and it has continued. She agreed that the plaintiff drives a car, takes the children to and from school and medical appointments, undertakes cooking, some cleaning, some vacuuming and like domestic tasks, and has undertaken what she described as light mechanical work on his vehicle when he is able to. She agreed that he has not taken any step to find work.
239Under further cross-examination, she agreed that when she married the plaintiff that she was aware that he had a lower back condition which caused him problems intermittently, and that he had suffered episodes of problems with his lower back when shifting furniture, lifting bags of concrete and through a coughing episode, and that she had seen him taking medication. I understood this part of the cross-examination to be directed to her observations of the plaintiff prior to 2006 when he commenced working with Keyesash; however, when she was asked to describe the difference between those lower back problems and what he is like now, she described that there is a definite difference, and that he did not have pain, just a normal back problem like most people have without the pain, tingling and pins and needles sensation that he experiences now. She could not remember him complaining about lower back problems before he began work with Keyesash.[185]
[185]      Transcript 647-664

Damages
240I accept the plaintiff’s evidence that although he has suffered from a lower back condition since about the age of sixteen years, it was manageable, and did not incapacitate him with respect to his general functioning in both a working and non-working context. I am fortified in reaching that conclusion because it is consistent with the medical evidence that the work which the plaintiff undertook from 2006 changed the underlying pathological process of degenerative changes to something identifiable as being contributed to by the work tasks he undertook as a tyre fitter and principally as a wheel aligner.
241It is worthy of repetition here that the plaintiff gave very graphic descriptions of the difficulty he had working on the creeper with his back elevated and the extent to which he suffered strain in his lower back and frank pain. I accept his evidence in that respect. It is evidence of very significant strain, producing significant pain, and it marries up very well with the evidence of Mr Han and Dr Burke, that it is that work which is a cause of the plaintiff’s lower back injury.
242That is very clearly demonstrated in the evidence of Mr Han, who is undoubtedly in the best position to make that assessment. He first treated the plaintiff in December 2006. The plaintiff commenced working for Keyesash only some months beforehand, on 31 August 2006. Dr Waechter referred the plaintiff to Mr Han either before 31 August 2006 or not long thereafter, and before the plaintiff commenced undertaking the work tasks associated with tyre fitting and wheel aligning. Mr Han compared what he knew of the plaintiff in December 2006 with the subsequent MRI scans and was convinced that the pathological changes he saw were the result of the work tasks undertaken by the plaintiff. I thought his evidence was very convincing, and I am persuaded that those pathological changes of which he spoke were caused by the work tasks undertaken by the plaintiff.
243I prefer Mr Han’s evidence of the nature and extent of the contribution of the plaintiff’s work tasks as a cause of the plaintiff’s injuries, and the need for surgery over the evidence of Mr Simm, who appears to me to be the only medical assessor who considered that the contribution to the plaintiff’s injury was rather more modest and amounted to only some degree of acceleration of pre-existing degenerative pathology. Otherwise, of the other treating and medico-legal assessors whose evidence I have summarised, none doubted that there was some level of contribution of the plaintiff’s work tasks to the production of the injury to his lower back.
244There are two matters which I should next deal with. The first is a submission made by the defendant that Mr Han premised his opinion on causation on an incorrect understanding of the work which the plaintiff undertook. He obtained a history that the plaintiff was a tyre fitter, and very little if any history that he was a wheel aligner. Mr Han professed no understanding of the difference between a tyre fitter and a wheel aligner;[186] however, what he did know was enough to understand that the plaintiff was engaged in undertaking manual work which involved strain on the plaintiff’s lower back. That must be the case, because in the courtesy letter dated 12 January 2007, which has figured prominently so far in this proceeding, Mr Han advised the plaintiff to make adjustments in his work environment “to avoid repetitive bending and twisting to his back”. He would not have given him that advice unless he understood that the plaintiff’s work tasks involved suffering strain on his lower back.
[186] Transcript 605
245In any event, Dr Burke professed an understanding of tyre fitting and wheel aligning from a general knowledge point of view, and appears to me to have understood that the plaintiff undertook work involving strain on his lower back sufficiently for him to have given evidence that I am confident I can accept that the more significant symptoms complained of by the plaintiff occurred when he was undertaking work tasks in wheel aligning, and that is indeed what he told Dr Burke.
246I prefer the evidence of Mr Han, and confirmed by the evidence of Dr Burke on both the questions of causation and the identification of the plaintiff’s lower back injury. I consider that evidence to be highly persuasive and evidence which I accept in preference to Mr Simm’s evidence. I hasten to add, and indeed repeat, that none of the medical assessors doubted that there was some contribution by the plaintiff’s work tasks to the symptomatic lower back condition of which he complained from an early point in time.
247The second matter I need to deal with is the defendant’s submission that the plaintiff’s pre-existing degenerative changes were a sinister progressive spinal disease which had an inevitable course, leading to the plaintiff suffering the deterioration in his lower back condition which would have led to the level of incapacity he suffered by 2012 and the need for the surgery which he had in 2012 and 2014. The defendant cross-examined both Mr Han and Dr Burke, neither of whom accepted that proposition. They certainly accepted that the plaintiff had pre-existing degenerative changes in his lower back, and that they were likely to progress, however, not to the extent advocated by the defendant, and considered by Mr Simm.

248I prefer the evidence of Dr Burke that, in the absence of the work tasks performed by the plaintiff, the plaintiff would have worked with some intermittent symptoms probably into his 60s, with a similar pattern of flare ups, the need for medication and the need for intermittent medical treatment. He would have expected the plaintiff to have self managed his lower back condition well into his 50s and 60s. I must add that I found Dr Burke’s evidence particularly persuasive. I accept his evidence that he has a special and particular interest in encouraging workers to return to work, and applied his experience as the plaintiff’s treating general practitioner, together with that special and particular interest in determining both the question of causation and the plaintiff’s capacity to function well enough to continue working in the absence of the work tasks.
249I accept the plaintiff’s evidence with very little exception. I accept that he was both a creditworthy and reliable witness. I have little doubt that he has difficulty remembering historical facts, and that is understandable given the period of time canvassed during his evidence, and that at times, his capacity to maintain concentration was difficult for him because of the pain he was experiencing while giving evidence.
250The plaintiff is in intractable, unremitting pain. He has literally reached the land of no return as far as treatment is concerned. After undergoing a radical multilevel spinal fusion, the only suggestion thought of by Mr Siu and Mr D’Urso is symptomatic treatment by neuromodulation. Unfortunately, for the plaintiff, the assessment for neuromodulation demonstrated that he is not an appropriate candidate for it, which means that the only treatment he can have is symptomatic treatment by the use of a large dosage of opioid medication. He now faces a life sentence of intractable and unremitting pain, and additionally, very significant disablement in almost all respects. He also suffers a psychiatric disorder which requires treatment by the use of a reasonably high dosage of medication. He is able to function at a low level to look after his children, and to engage in some levels of domestic work around his home, but little else.
251I am fortified in accepting the plaintiff’s evidence because of the evidence of his wife, who described a man who has been reduced to functioning at a very modest level. Furthermore, the collective evidence of Dr Burke, Mr Han, Mr Siu and Mr D’Urso demonstrate that the purpose of the multilevel fusion was not achieved. Mr Siu very aptly described it as failed back surgery, and Mr D’Urso as the plaintiff now suffering a failed back syndrome. I was particularly impressed by the evidence of Dr Burke quoted in paragraph 196 above, who described the plaintiff’s current predicament in terms which I think capture the dreadful circumstances of the plaintiff as almost just surviving with the injury and the pain, disablement and psychiatric consequences resulting from it.
252The plaintiff referred me to comparable verdicts for the purpose of demonstrating the range of damages which have been awarded in circumstances where the pain and suffering/loss of enjoyment of life consequences are very significant. Whilst comparable verdicts are helpful in setting a background, the ultimate conclusions that I must reach are to be based upon the particular evidence of the plaintiff. On the basis of the evidence I have reviewed, and the evidence which I accept, I consider that full, fair and reasonable compensation for the plaintiff for pain and suffering and loss of enjoyment of life, past, present and future, is $450,000.
253The evidence that I have reviewed, and which I accept, demonstrates to me that the plaintiff has no current capacity for work of any kind. I do not accept the evidence of Dr Baynes that the plaintiff has a residual capacity for work which he can exercise in alternative or suitable employment.
254The defendant sought to gain some advantage in persuading me that the plaintiff does have a residual capacity by reference to the opinions of Mr Han, Mr Siu and Mr D’Urso that the plaintiff can perhaps perform work in some light capacity; however, their evidence was given in the context of the plaintiff’s failed back surgery, and where there is no other treatment that can ameliorate current condition of his lower back with a view to returning him to some better level of functioning. Again, the only suggestion was neuromodulation, which has been discounted, leaving the plaintiff with a large dosage of medication as the only alternative. I think the expressions of those opinions by Mr Han, Mr Siu and Mr D’Urso were optimistic, and I think typical of medical practitioners who are reluctant to consign anyone to the vocational refuse heap, but I think the compelling evidence demonstrates that that is where the plaintiff has ended up. I think the most compelling and realistic evidence of whether the plaintiff has a residual capacity which he can exercise in alternative or suitable employment is that of Dr Burke. He has seen the plaintiff on an extraordinarily large number of occasions and is in probably the best position to make an assessment of the plaintiff that he has no residual capacity for any employment, and it is an opinion which I accept.
255Dr Baynes’ evidence strikes me as being against the grain of the other evidence which I prefer. There are a number of reasons why I have reached that conclusion. Firstly, he appears to have considered that the plaintiff’s injury and its consequences would only prevent him from getting back to heavy manual work.[187] That is inconsistent with the opinions of Mr Han, Mr Siu, Mr D’Urso and Dr Burke. Secondly, he seems to have been under the impression that the plaintiff had obtained a Certificate II in IT and has worked in that area when in fact that is not the case.[188] Thirdly, he appears to have been under the impression that the plaintiff has computer skills, was capable of being retrained, and has sufficient physical capacity to work for 20-25 hours per week as a despatch clerk, weighbridge operator and higher sales/sales coordinator.[189] Fourthly, part of his thesis was based upon his knowledge that other injured persons who had undergone a similar level of surgery had in fact returned to work.[190]
[187]      Transcript 823
[188]      Transcript 824
[189]      Exhibit 13
[190]      Transcript 827
256In addition to the opinions of Mr Han, Mr Siu, Mr D’Urso and Dr Burke relevant to the plaintiff’s capacity for work, there is also a very large body of medical evidence which demonstrates that the plaintiff has undergone an extraordinary amount of medical treatment in order to provide him with an outcome which will enable him to function reasonably. It is quite clear that those efforts have failed. All that leads me to conclude that Dr Baynes’ opinion is overly optimistic, and I do not think, based upon the understanding of the plaintiff’s predicament consistent for example with the extensive experience which Dr Burke has of the plaintiff in his treatment of the plaintiff. I do not accept that the opinion of Dr Baynes can overwhelm this body of evidence which I consider to be compelling of the issue that the plaintiff has no capacity for any work.
257The parties agreed that as at 15 February 2014, the plaintiff was earning $871 net per week. I was invited by the plaintiff to then have regard to the Australian Bureau of Statistics website which he submitted demonstrated that there has been an average of a 3 per cent increase in average weekly ordinary full-time earnings from November 2012 which I was invited to apply in arriving at increases in wages in each financial year since November 2012 against the number of weeks which the plaintiff has not worked. The defendant objected to the use of the Australian Bureau of Statistics website on the basis that there was no evidence on which I could find, firstly, that I could rely upon the website and its content, and, secondly, whether there has been a uniform application of increases of the kind referred to by the plaintiff. I agree. I do not intend have any regard to the website, and I think it is unusual, if not extraordinary, that the calculation of increases in wages should be left to a judge to try to work out when it is a matter for evidence to be adduced by the plaintiff of a quality which is capable of some certainty in undertaking the calculations to reach a definite conclusion on relevant wage figures that apply in each financial year.
258The total number of weeks comprising the plaintiff’s past loss are calculated from 15 February 2014 to 1 October 2021, being a total of 398 weeks at $871 net per week, amounts to $346,658.
259I accept Dr Burke’s evidence that he would have expected the plaintiff to have been able to self manage his lower back condition and work into his 50s and 60s. The plaintiff struck me as being something of a stoic, who worked in spite of lower back pain, and I think the sort of person who would have persevered and worked for as long as he could. In the circumstances, I see no reason why he would not have worked to normal retiring age of sixty-five years. The parties agree that the relevant multiplier is 525.4, and at $871 net per week amounts to a total for loss of earnings for the future of $457,623
260There was little controversy between the parties that there should be a discount for vicissitudes. The plaintiff is currently fifty years of age. The vicissitudes are to be evaluated on the evidence relevant to the plaintiff. It is relevant to look at matters such as the plaintiff’s age, health, employment history and security of pre-injury employment in determining whether to make such a discount and, if so, to what extent. Second, it is relevant to bear in mind that not all contingencies are adverse, particularly in the field of employment. I think an appropriate discount is 15 per cent. That will reduce the plaintiff’s future loss of earnings to $388,979.
261Additionally, the plaintiff claims loss of superannuation at 10 per cent of the value of his past loss of earnings, which amounts to $34,665 , and a claim for future loss of superannuation at 10 per cent of the value of his future loss of earnings which amounts to $45,762. That will need to be reduced by 15 per cent, which gives $38,897.
262The last aspect of the plaintiff’s loss of earnings and earning capacity to be attended to is a calculation of the Fox v Wood[191] component.
[191] (1981) 148 CLR 438
263In summary, I have calculated the plaintiff’s damages as follows:
·        Pain and suffering/loss of enjoyment of life   $450,000
·        Past loss of earnings   $346,658
·        Future loss of earnings (discounted)   $388,979
·        Past superannuation   $34,665
·        Future superannuation   $38,897
_________

Total: $1,259,199

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Contributory negligence
264In its Amended Defence, the defendant pleaded that if it was found to have been negligent or in breach of statutory duty, then the plaintiff caused or contributed to his lower back injury through his own negligence. The particulars which are relevant are sub-joined to paragraph 12 of the Amended Defence:
“c)Failing to advise the Defendant of the advice he received from his treating neurosurgeon on or about 10 January 2007.
d)Continuing to perform the work when:
i.he has a medical condition affecting the performance of his duty;
ii.he had been told by his treating doctors that it was unsuitable for him to do so.
iii.he knew or ought to have known that it was beyond his physical capacity to do so.”

265The allegation of contributory negligence is based on the content of the courtesy letter written by Mr Han to Dr Waechter which I have now referred to many times. The relevant part is “… I asked him to make adjustments in his work environment to avoid repetitive bending and twisting to his back”. As will be seen from my summary of the evidence, Mr Han agreed that he gave that advice to the plaintiff, and the plaintiff agreed that he was given that advice.
266The defendant served a Notice to Admit dated 30 March 2020 on the plaintiff in which it requested that the plaintiff admit the following fact:
“1. During his review of the Plaintiff on 10 January 2007, treating neurosurgeon Mr Tiew Han asked the Plaintiff to make adjustments in his work environment to avoid repetitive bending and twisting to his back.”

267The plaintiff did not serve a notice disputing the fact recited in the Notice to Admit, with the result that it is taken to be admitted in favour of the defendant.
268Interrogatory 4(a) of the Interrogatories served for the examination of the plaintiff asked him whether he attended Mr Han on 10 January 2007. In answer, he said “Yes”. He was then asked in Interrogatory 4(b):
“(b)if ‘yes’ to paragraph (a) of this interrogatory, did Mr Han or your treating general practitioner at the time ask or advise you to make adjustments in your work environment to avoid repetitive bending and twisting to your back?”

269In answer, the plaintiff said “Yes”.
270Interrogatory 4(c) then asked:
“(c) if ‘yes’ to paragraph (b) of this interrogatory, did you make any adjustments in your work environment to avoid repetitive bending and/or twisting to your back and if so adjustments?”

271In answer he said “No”.
272Interrogatory 4(d) asked whether the plaintiff requested Keyesash to make any adjustments to his work environment to avoid repetitive bending and/or twisting to his back or advise it of the advice that he received from Mr Han, and his answer was “No”.
273The defendant submitted that the plaintiff’s evidence is clearly at odds with his Answers to Interrogatories. Mr Han agreed that he gave that advice to the plaintiff to make those adjustments. The plaintiff agreed that he was given that advice. The plaintiff said he made adjustments, and Mr Han and Mr Burke considered that the adjustments the plaintiff made were appropriate, and essentially in conformity with the adjustments that Mr Han had in mind, that the plaintiff needed or should make to his work environment.
274The defendant submitted that I should not accept the plaintiff’s evidence that he made any such adjustments in the face of Mr Han’s advice that he needed or should do so. I accept the plaintiff’s evidence that he did make adjustments, and I accept the evidence of Mr Han and Dr Burke that they were essentially in conformity with the adjustments that Mr Han had in mind, that the plaintiff needed or should make to his work environment. I am fortified in reaching that conclusion because the plaintiff’s evidence was the subject of cross-examination and exposure to the contradictory Answers to Interrogatories. It occurred to me that the plaintiff gave his evidence in a way which was convincing, that he made appropriate adjustments.
275I do not think there is much in the Answer which the plaintiff gave to Interrogatory 4(d) because of the finding I have made that the plaintiff told Mr Smith and Mr Ereglidis that he was suffering from a lower back condition and has sought medical treatment at a reasonably early stage in his employment with Keyesash. It follows that with that knowledge it was for Keyesash to discharge its duty of care owed to the plaintiff appropriately by reason of being armed with that knowledge.
276The parties referred me to s26 of the Wrongs Act 1958 and in particular, to ss(1)(b), which provides that the damages recoverable by the plaintiff must be reduced to such an extent as I think is just and equitable having regard to the plaintiff’s share in the responsibility for the damage he sustained. I was also referred to a number of authorities which condescend to the issue of contributory negligence and the steps to be taken in determining whether there is foundation in such an allegation.[192]
[192]Podrebersek v Australian Iron & Steel Pty Limited (1985) 59 ALJR 492 and Casey City Council v Kohn [2006] VSCA 82
277I was also referred to Pasqualotto v R & L Pasqualotto (No 3)[193] in which Bell J (at the retrial) found that the plaintiff was guilty of contributory negligence because he disregarded medical advice that he should not be working on the farm where he was employed. The facts are clearly distinguishable from the plaintiff’s circumstances. Bell J found that the plaintiff, in continuing to work for the defendants, was doing so contrary to clear medical advice not to. In this case, the plaintiff was given advice to make adjustments, not to go to the extent of not working as a tyre fitter or wheel aligner. In any event, the fact that I have found that he made the adjustments in conformity with what Mr Han considered he needed to do or should do is really the end of the matter.
[193] [2014] VSC 26 at paragraph [125]
278I am not satisfied that the allegation made by the defendant that the plaintiff is guilty of contributory negligence can be made out on the evidence.

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[2021] VCC 1781

26 November 2021