Victorian WorkCover Authority v C & a Battaglia & Sons Pty Ltd
[2016] VCC 1866
•13 December 2016
Background
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
General List
Case No. CI-13-03785
| VICTORIAN WORKCOVER AUTHORITY | First Plaintiff |
| and | |
| SPARK CONTRACTING PTY LTD (IN LIQUIDATION) | Second Plaintiff |
| v | |
| C & A BATTAGLIA & SONS PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE MORRISH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14, 15, 16, 17, 20, 21 and 30 April 2015, 10 August 2015, 12, 13, 14, 15, 16, 19, 20 and 21 October 2015, 22 July, 5 and 18 August 2016 and 4 November 2016. | |
DATE OF JUDGMENT: | 13 December 2016 | |
CASE MAY BE CITED AS: | Victorian WorkCover Authority & Anor v C & A Battaglia & Sons Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1866 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Indemnity claims – contribution proceedings
Legislation Cited: Accident Compensation Act 1985, s138; Wrongs Act 1958, s14B, s24, s23B; Evidence Act 2008, s43, s44, s59, s63, s64, s103, s108A, s135, s167, s192; Workplace Injury Rehabilitation and Compensation Act 2013, s590; Evidence (Miscellaneous Provisions) Act 1958, s42E, s126A; Evidence Regulations 2009, r5; Occupational Health and Safety Act 2004, s34; Occupational Health and Safety Regulations 2007; Limitation of Actions Act 1958, s5(1A); Civil Procedure Act 2010, s42
Cases Cited:Victorian WorkCover Authority v Carrier Air Conditioning Pty Ltd [2006] VSCA 63; Czatyrko v Edith Cowan University (2005) 214 ALR 349; Victorian WorkCover Authority v Stoddart (Vic) Pty Ltd [2015] VSC 149; Leighton Contractors Pty Ltd v Fox (2009) 240 CLR 1; Wallace v Kam (2013) 250 CLR 375; Powney v Kerang and District Health (2014) 43 VR 506; Amaca Pty Ltd v Booth (2011) 246 CLR 36; Stevens v BrodribbSawmilling Co Pty Ltd (1986) 160 CLR 16; Victorian WorkCover Authority v Australian Steel Company (Operations) Pty Ltd [2015] VSC 58; Evans v R (2007) 235 CLR 521; R v Clark (2001) 123 A Crim R 506; Ordukaya v Hicks [2000] NSWCA 180; R v Lisoff [1999] NSWCCA 364; R v Shamouil (2006) 66 NSWLR 228; Godrd Elliott (A Firm) v Fritsch [2012] VSC 87; Roach & Ors v Page & Ors (No 11) [2003] NSWSC 907; TNT Australia Pty Ltd v Christie & Ors (2003) 65 NSWLR 1
Judgment:Recovery proceedings: The plaintiffs have failed to establish on the balance of probabilities that the worker’s injury was caused under circumstances creating a liability in the defendant to pay damages in respect of that injury. The plaintiffs’ claim is dismissed.
Contribution proceedings: The second plaintiff has failed to establish that the defendant should contribute to the settlement sum. The contribution proceedings are also dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G A Worth alone, up to but not including 18 August 2016, then Mr M Wheelahan QC with Mr G A Worth | Russell Kennedy |
| For the Defendant | Mr W C Grainger with Ms G J Cooper, up to but not including 4 November 2016, then Mr A N Murdoch QC with Mr W C Grainger | Norris Coates |
Table of Contents
Background........................................................................................................................................ 1
The causes of action........................................................................................................................ 3
The history of the proceedings..................................................................................................... 3
The substantive issues at trial...................................................................................................... 7
Issues to be determined in the indemnity claims under Section 138 of the
Accident Compensation Act 1985............................................................................................. 8
Statutory framework................................................................................................................ 8
The elements of the claims under Section 138 of the Accident Compensation Act
1985......................................................................................................................................... 8
The questions to be decided................................................................................................. 9
Issues to be determined in the contribution proceedings brought by Spark under
Section 23B of the Wrongs Act 1958..................................................................................... 11
Statutory framework............................................................................................................. 11
The elements of the claim under Section 23B of the Wrongs Act 1958...................... 13
The questions to be decided............................................................................................... 14
Overview of the evidence............................................................................................................. 15
YB’s evidence-in-chief given to the point of her non-attendance....................................... 15
Other evidence called on behalf of the Plaintiffs................................................................... 30
Mark Edward Hennessy, ergonomist....................................................................................... 30
Exhibit Q – Mr Hennessy’s report...................................................................................... 32
Viva voce evidence of Mr Hennessy................................................................................. 37
Muzeyyen Turkkan..................................................................................................................... 40
Judith Anne Pratt........................................................................................................................ 44
Nurhan Kivilcim........................................................................................................................... 47
Dr Roy Kewal Karna, rheumatologist...................................................................................... 51
Exhibit U, Dr Karna’s report, 5 December 2008.............................................................. 52
Exhibit V, Dr Karna’s report, 13 January 2009................................................................ 54
Exhibit W, Dr Karna’s report to workers’ compensation insurer, 11 February 2010.. 54
Exhibit X, Dr Karna’s report to workers’ compensation insurer, 15 December 2010 56
Dr Karna’s viva voce evidence........................................................................................... 57
Dr Anil Kaippilly Ebrahimkutty, general practitioner.............................................................. 61
Dr Hedley Thomas Griffiths, rheumatologist.......................................................................... 63
Associate Professor Ross Patrick Carne, neurologist.......................................................... 71
Ismet Turkkan.............................................................................................................................. 75
Associate Professor John Balla, consultant neurologist (exhibit MM)............................... 85
Dr Paul Kornan, psychiatrist (exhibit NN)............................................................................... 85
Dr Kevin Threlfall, rheumatologist (exhibits OO, PP, QQ, RR, SS, TT, UU and VV)...... 85
Exhibit OO, report dated 26 November 2008 to workers’ compensation insurer....... 85
Exhibit PP, letter from Dr Threlfall to Dr Dunning, November 2008............................. 87
Exhibit QQ, letter from Dr Threlfall to Dr Dunning, 2 November 2006......................... 87
Mr Anthony McDonald, plastic surgeon (exhibits WW, XX, YY and ZZ)........................... 87
Dr Andrew Muir, pain management specialist (exhibits OOO to CCCC).......................... 87
Exhibit OOO, report to YB’s solicitor, 24 October 2011................................................. 88
Exhibit SSS, report from Dr Muir to Dr Jain, 27 May 2010............................................ 88
Mr Justin Hunt, orthopaedic and spinal surgeon (exhibits DDDD and VVVV)................. 88
Exhibit DDDD, report to Accident Compensation Conciliation Service, 3 May 2011 88
Exhibit UUUU, letter to Dr Jain, 18 April 2013................................................................. 90
WorkCover Household Help (Occupational Therapy Assessment) Report, 11
February 2010 (exhibit WWWW)............................................................................................ 90
Dr Carol A Newlands, consultant forensic psychiatrist, report, 30 October 2010
(exhibit XXXX)............................................................................................................................ 90
Mr Daryl H Nye, neurosurgeon (exhibit FFFFF).................................................................... 91
Dr Dunning, general practitioner’s clinical records (exhibit DDD)....................................... 92
The Defendant’s case.................................................................................................................... 94
YB’s Draft Statement of Claim dated July 2012.................................................................... 95
CHS surveillance activity report, 5 November 2010 (exhibit 3)........................................... 95
Evidentiary applications............................................................................................................... 96
Application to admit evidence under Section 63 of the Evidence Act 2008...................... 96
Exhibit N, for identification, copy affidavit of YB, sworn 10 August 2012........................ 100
Analysis................................................................................................................................ 104
Section 192 of the Evidence Act 2008............................................................................ 106
Exhibit O (and Q1), for identification..................................................................................... 109
Analysis................................................................................................................................ 110
Exhibit HHHHH, for identification........................................................................................... 111
Analysis................................................................................................................................ 112
Application to exclude evidence under Section 135 of the Evidence Act 2008............. 114
The Section 135 factors..................................................................................................... 114
Issues raised in the proceedings under Section 138 of the Accident Compensation
Act 1985.............................................................................................................................. 114
The questions to be decided............................................................................................ 115
(a) The case in negligence.......................................................................................... 116
(b) The case in breach of statutory duty................................................................... 120
(c) The case in Occupiers’ Liability............................................................................ 120
(d) Further defences alleged...................................................................................... 121
Matters not in issue............................................................................................................ 123
Facts in issue...................................................................................................................... 127
Category 1 – Facts possibly within the knowledge of the defendant......................... 127
Category 2 – Matters of evidence not expected to be within the knowledge
of the defendant................................................................................................................. 129
Probative value of the evidence....................................................................................... 132
Is the probative value of the evidence substantially outweighed by the danger
that the evidence might be misleading or confusing? (Section 135(b)).................. 136
Is the probative value of the evidence substantially outweighed by the danger
that the evidence might cause or result in undue waste of time? (Section 135(c)) 136
Is the probative value of the evidence substantially outweighed by the danger that the evidence might be unfairly prejudicial to the defendant? (Section 135(b))................................ 136
Determination of the applications under Section 135 of the Evidence Act 2008..... 138
YB’s viva voce evidence in the trial....................................................................................... 138
Ruling on applications under Sections 63 and 135 of the Evidence Act 2008............ 138
Orders.............................................................................................................................................. 139
No case submission.................................................................................................................... 139
The claim under Section 138..................................................................................................... 139
Was there negligence on the part of Battaglia that was a cause of YB’s injury,
loss and damage?................................................................................................................... 140
The case in negligence...................................................................................................... 140
The elements....................................................................................................................... 140
(a) Duty of care............................................................................................................. 140
(b) Did Battaglia breach the duty of care?................................................................ 145
Facts, matters and circumstances relied upon to support the finding that
YB only worked at the Defendant’s farm....................................................................... 148
The number of workplaces YB was placed in 2007 to 2008....................................... 148
Analysis................................................................................................................................ 162
Other factors affecting YB’s credibility............................................................................ 165
Did YB intend to assume full-time work?........................................................................ 165
Did YB give accurate information to doctors?................................................................ 165
Documents not tendered................................................................................................... 166
Witnesses not called.......................................................................................................... 166
Conclusion................................................................................................................................. 166
Other problems in the Plaintiffs’ case.................................................................................... 167
System of work......................................................................................................................... 167
(c) Damages.................................................................................................................. 175
The contribution proceedings.................................................................................................. 177
Conclusion and Orders............................................................................................................... 178
Recovery proceedings under Section 138........................................................................... 178
Contribution proceedings........................................................................................................ 179
HER HONOUR:
Background
1 Between approximately February 2007 and late October 2008, “YB”[1] worked as a farm labourer for the second plaintiff, Spark Contracting Pty Ltd (now in liquidation), a labour-hire company (“Spark”). Prior to that, for a number of years,[2] YB also worked as a farm labourer, employed by a firm (also a labour-hire company) that was later acquired by Spark.[3] In fact YB has worked as a farm labourer from approximately 1990.[4] YB worked at various vegetable farms, including at the farm of the defendant, C & A Battaglia & Sons Pty Ltd (“Battaglia”), picking, cutting, harvesting and packing vegetables.
[1]The full name of the worker is contained in the pleadings. She has suffered various mental and behavioural conditions. The name of the worker is not relevant for the purposes of this judgment. She is also referred to as “the worker”.
[2]From approximately 2000 until early 2007, when Spark took over the business.
[3]The previous owner of the labour-hire company bought the business back from Spark in approximately January 2009.
[4]See exhibit N, for identification
2 YB alleged that in the course of her employment with Spark,[5] she sustained injuries to her wrists, shoulders and neck with consequent emotional, psychological and psychiatric problems.
[5]Her Draft Statement of Claim against Spark, exhibit 1, alleges injury in the period before her employment with Spark. This is referred to in more detail later in this judgment.
3 In or around 10 November 2008, YB made a claim for compensation under the Accident Compensation Act 1985 (“the Act”). The first plaintiff, the Victorian WorkCover Authority (“VWA”), Spark and the authorised insurer accepted the claim and, in accordance with their statutory obligations, paid the sum of $62,953.42 to YB or on her behalf as at the date the Amended Writ and Amended Statement of Claim were filed.[6] As at the date of trial, that figure had increased to $71,195.17[7] and by 12 October 2015, the sum was $71,365.82.[8]
[6]17 July 2014
[7]Transcript (“T”) 98-99
[8]Exhibit B - Certificate under s590 of the Workplace Injury Rehabilitation and Compensation Act 2013, issued 12 October 2015.
4 On 31 December 2012, a Serious Injury Certificate was issued to YB in the following terms:
“SERIOUS INJURY CERTIFICATE
For the purposes of section 134AB of the Accident Compensation Act 1985, WorkSafe Victoria certifies in respect of … [YB] that:
(a)WorkSafe Victoria is satisfied that the injury alleged to have been sustained in the circumstances referred to in paragraphs 5 and 6 of the proposed Statement of Claim submitted with the application herein made under sub-section 134AB(4) is a serious injury within the meaning of:
o section 134AB(38)(b)(i) and (ii)
(b)subject to compliance with sub-section 134AB(12) of the Act, consent is given pursuant to section 134AB(16)(a) of the Act for … [YB] to bring proceedings for the recovery of:
o pain and suffering and pecuniary loss damages
as a result of that injury.”[9]
(emphasis in the original).
[9]Exhibit JJJJJ
5 Paragraphs 5 and 6 of YB’s Draft Statement of Claim for the common law proceedings proposed against Spark were in the following terms:
“5.In the course of her employment with the Defendant [Spark] from 2000 until October 2008, and whilst working at market farms allocated to the Plaintiff [YB] by the Defendant [Spark], the Plaintiff [YB] was required to carry out fast, repetitive and frequent work which placed strain on her upper limbs, arms, hands and neck (hereinafter ‘the work process’).
6.Further, in 2008, whilst in the course of her employment with the Defendant [Spark] at market farms, and specifically a market farm owned by Romeo Battaglea (scil Battaglia), the Plaintiff [YB] was required to carry out fast, repetitive, frequent and strenuous work cutting broccoli which placed further strain on her upper limbs, arms, hands and neck (hereinafter ‘the 2008 work’).[10]
[10]Exhibit 1
6 Before YB actually issued any common law proceedings against Spark, on or about 19 April 2013, Spark and YB settled the proposed common law proceedings in the sum of $100,000.00 (“the settlement”). The terms of the settlement were recorded in a seven-clause Deed of Release dated 22 April 2013.[11] The “settlement sum” as defined in the Release meant:
“… $100,000.00 being a net settlement amount after the reduction required by Section 134AB(25) of the Act.”[12]
[11]Exhibit C
[12]Exhibit C, definition in recitals, paragraph h
7 In the proceedings before me, the plaintiffs allege that the injuries that YB sustained whilst an employee of Spark (that is to say between February 2007 and late October 2008) occurred when she was placed at Battaglia’s farm where she picked broccoli and performed other duties associated with harvesting broccoli. The plaintiffs allege that those injuries were caused by Battaglia’s breach of the duty of care owed to YB. Battaglia denies these allegations.
The causes of action
8 Under s138 of the Act, both the VWA and Spark seek indemnities from Battaglia for the past compensation paid to YB and for future compensation that will be payable to her under the Act.
9 Further, under s23B of the Wrongs Act 1958, Spark seeks contribution from Battaglia in respect of the settlement sum paid to YB.
10 Battaglia denies that it has any legal obligation to indemnify either plaintiff. Battaglia also denies it is obliged to contribute to the settlement sum. It denies any negligence or breach of duty on its part. In the alternative, if negligence or breach of duty is established, it alleges that there was contributory negligence on the part of YB and/or others.
The history of the proceedings
11 The matter first came on for hearing before me on 14 April 2015.
12 Mr G A Worth appeared on behalf of the plaintiffs. Mr W C Grainger appeared with Ms G J Cooper on behalf of the defendant.
13 After a number of preliminary applications, Mr Worth opened the case for the plaintiffs and called YB to give evidence.
14 Through an interpreter, YB commenced, but did not complete her evidence-in-chief on the third day of hearing, 16 April 2015. Later that day, I informed YB that she would be required to return to Court the next day and then again on Monday, 20 April 2015 to resume her evidence.[13] Although she returned to give evidence the next day, she was not called upon to do so, as counsel wished to address other matters. Just before the luncheon adjournment, YB was excused for the day.
[13]T173
15 On 20 April 2015, when YB was called to return to the witness box to complete her evidence-in-chief, she did not appear.[14] Thereafter, various enquiries were made to ascertain why YB did not attend Court that day, or on a number of subsequent days, and whether she intended to return to Court to complete her evidence.
[14]T197
16 As a result of these enquiries it was discovered that YB had become unfit to attend Court because of a mental or behavioural condition.
17 On 30 April 2015, Mr Worth made application under s63 and s64 of the Evidence Act 2008 to admit into evidence various documents that contain representations made by, or attributed to YB. He also sought to rely on the transcript of YB’s unfinished evidence.
18 Mr Grainger opposed these applications and made application under s135 of the Evidence Act 2008 to exclude the evidence given by YB thus far. He also relied on that section to apply to exclude the evidence the subject of Mr Worth’s applications under s63 and s64.
19 I did not consider the evidence regarding YB’s alleged incapacity to be in a satisfactory state. Nor was it clear on the information provided that any such incapacity would be of lengthy duration.
20 Enquiries revealed that forcing[15] YB to attend Court might create an unacceptable risk to her emotional welfare. I invited Mr Peter Zaparas of Zaparas Lawyers, the solicitor who had previously acted for YB in her serious injury and common law proceedings against Spark, to assist the Court in communicating various matters to YB. As the transcript shows, acting pro bono, and as amicus curiae, Mr Zaparas went to great lengths to assist the Court in this regard. It is to his great credit that Mr Zaparas voluntarily undertook this onerous task, which he completed with honour, dignity and professionalism.
[15]That is to say, potentially under arrest pursuant to warrant.
21 I granted a three-month stay to enable enquiries to be made to ascertain the true nature of YB’s alleged incapacity and whether any such condition was likely to improve in the short term or extend into the foreseeable future indefinitely.
22 On 10 August 2015, the matter was mentioned, and I re-listed it for further hearing on 12 October 2015.
23 On 12 October 2015, I heard further evidence and submissions regarding YB’s capacity to attend Court to complete her evidence.[16] It was not in controversy that because of her fragile mental health, YB was unlikely to become fit to give evidence in the foreseeable future even if alternative arrangements could be made for her to do so, such as arrangement of a videolink. Although she was under subpoena, no party pressed its enforcement. No warrant for YB’s apprehension was sought. Accordingly, by consent, I discharged YB of the obligation to comply with the terms of the subpoena, and I set it aside.
[16]The Court also received a letter, purportedly written on YB’s behalf, dated 6 October 2015, marked as Exhibit JGM2. It raised disturbing issues regarding YB’s welfare, including the expression of suicidal thoughts. The letter requested that the subpoena addressed to her be set aside.
24 Counsel then returned to their respective applications under the Evidence Act 2008.
25 I deferred ruling on these applications until such time as all the evidence was received.[17]
[17]T307
26 At the close of the plaintiffs’ case, Mr Grainger renewed his application under s135 of the Evidence Act 2008, and during the development of his submissions, he also made a “no case” submission.
27 Mr Worth noted that the applications under s63, s64 and s135 of the Evidence Act 2008 had “morphed” into a “no case” submission, and he requested that I put the defence to an “election”.[18] Thereafter, Mr Grainger indicated that “if put to the election, the defendant would not call any evidence”.[19] Then, the submissions became final addresses.
[18]T560
[19]T573
28 Without having ruled on the evidentiary applications, at the conclusion of the submissions, on 21 October 2015, I reserved my judgment. This left the applications under s63, s64 and s135 to be resolved in the final judgment. It also meant that a number of exhibits that were tendered for identification only were not tendered absolutely, since their admissibility would largely be determined by the rulings.[20]
[20]Exhibits N, O, P, Q1, Q2, Q3, GGGGG, HHHHH, 3 and 4
29 When writing the judgment, I reconsidered the wisdom of deferring the evidentiary rulings. Although I deferred making these rulings with counsel’s acquiescence, as a matter of fairness to the parties, I later thought that I should have ruled on the outstanding evidentiary applications at the very latest before the defence elected its course. The ruling might not only have affected the course that Battaglia elected to take, but also it might well have had a vital bearing on the success of the “no case” submission, that was essentially abandoned. The ruling is potentially of great significance to the overall outcome of the proceedings. If the plaintiffs do not succeed in their applications to admit YB’s statements and evidence under s63 or s64 of the Evidence Act 2008, or if any part of the defendant’s application to exclude YB’s evidence under s135 is upheld, then there is a real question whether the plaintiffs can establish on the balance of probabilities the various elements of the causes of action now before me.
30 Therefore, a further mention of the matter was listed for hearing on 22 July 2016. On that date, I raised my concerns with the parties, and listed a further mention of the matter on 5 August 2016 to give them time to consider their respective positions.
31 On 5 August 2016, the parties sought further time and the matter was adjourned for mention on 18 August 2016. On 18 August 2016, Mr M Wheelahan QC announced his appearance, with Mr Worth, on behalf of the plaintiffs. Counsel suggested that they each file further written submissions. The matter was then relisted for oral submissions on 4 November 2016.
32 On 4 November 2016, Mr A N Murdoch QC announced his appearance, with Mr Grainger, on behalf of the defendant. The parties each filed further written submissions,[21] and presented further oral argument. I shall address the submissions later, but I should note here that the defendant did not seek to re-open its case and stood by the election to not call any evidence.
[21]Exhibit KKKKK - Plaintiffs’ submissions dated 23 September 2016, exhibit LLLLL – Note of propositions dated 4 November 2016, exhibit 5 – Defendant’s further submissions dated 26 October 2016, including Appendix A.
The substantive issues at trial
33 In order to understand the significance of YB’s evidence to the issues raised in the various causes of action, it is first necessary to identify the substantive issues at trial. Many legal and factual issues require determination, and YB’s evidence will likely be key to most, if not all of these matters.
Issues to be determined in the indemnity claims under Section 138 of the Accident Compensation Act 1985
Statutory framework
34 Section 138 of the Act provides:
“(1)Where an injury … for which compensation has been paid, or is or may be payable, by the Authority, a self-insurer or an employer was caused under circumstances creating a liability in a third party to pay damages … or that would, but for section 134A, create such a liability in respect of the injury …, the Authority, self-insurer or employer is entitled to be indemnified by the third party in accordance with this section.
(2)In determining for the purposes of subsection (1) whether an injury … was caused under circumstances creating a liability in a third party to pay damages … in respect of the injury …, Divisions 8A and 9 of Part IV must not be taken into account.
(3)The amount which a third party is required to pay as indemnity under subsection (1) is the lesser of—
(a)the amount of compensation paid or payable under this Act in respect of the injury …; and
(b)the amount calculated, were it not for the provisions of this Act, the Transport Accident Act 1986 and Parts VB, VBA and X of the Wrongs Act 1958, in accordance with the formula—
where—
X is the extent, expressed as a percentage, whereby the third party's act, default or negligence caused or contributed to the injury ….;
A is the amount of damages (disregarding the extent, if any, whereby any other person's act, default or negligence caused or contributed to the injury or death) for pecuniary loss and non pecuniary loss which the third party is or would have been liable to pay in respect of the injury …;
B is the amount recovered or recoverable by the Authority, the self-insurer or the employer under section 137 from the Transport Accident Commission (otherwise than under a settlement);
C is the amount paid by the third party in respect of the injury … to the worker … under any settlement of, or judgment in, an action by the worker … against the third party.”
The elements of the claims under Section 138 of the Accident Compensation Act 1985
35 In order to succeed in the proceedings brought under s138 of the Act, the plaintiffs must establish two elements on the balance of probabilities:
(i) The Authority, self-insurer or employer has paid and/or will be liable to pay compensation in respect of an injury (to YB); and
(ii) The injury was caused under circumstances creating a liability in a third party (Battaglia) to pay damages in respect of the injury.
36 If these elements are established, then the appropriate figures must be determined for the purposes of the formula set out in ss(3).
The questions to be decided
(1) The first element is not in dispute. A certificate under s590 of the Workplace Injury Rehabilitation and Compensation Act 2013 was tendered.[22] No evidence was called to rebut the presumptive proof that the certificate provides.
[22]Exhibit B
(2) The second element is in dispute. Put simply, the question to be determined is whether the plaintiffs have established on the balance of probabilities that a liability has been created in Battaglia to pay damages in respect of YB’s injury.
(3) If the Court finds that YB’s injury was caused under circumstances that created a liability in Battaglia to pay damages, then the figures representing factors X, A and possibly C[23] are also in issue.
[23]There is a suggestion that factor C will be affected by the claim under s23B of the Wrongs Act 1958
(4) The plaintiffs’ case against Battaglia on the liability question is put on three alternative bases:
(i) Negligence; and/or
(ii) Breach of statutory duty; and/or
(iii) Occupiers’ liability (s14B of the Wrongs Act 1958).
37 Regarding the case in negligence, Battaglia does not dispute that it owed YB a duty of care. However, the parties do not agree about the nature and scope of the duty Battaglia owed to YB. The plaintiffs submit that the duty Battaglia owed is akin to that owed by an employer to an employee. The defendant submits that the duty it owed to YB is not as onerous as that of the employer, since YB was not an employee of Battaglia. Battaglia denies it breached its duty of care, but if it did, any such negligence was not a cause of YB’s injury, loss and damage.
38 As to the case based on breach of statutory duty, Battaglia denies any such breach or that it was a cause of YB’s injury, loss and damage.
39 Regarding the case based on s14B of the Wrongs Act 1958, Battaglia denies any such breach or that it was a cause of YB’s injury, loss and damage.
40 Regarding the formula set out in ss(3), factor X raises not only the question of whether Battaglia’s act, default or negligence caused or contributed to YB’s injury, but also whether YB or any other person contributed to YB’s injury. Battaglia asserts that if, contrary to its denial of breach of duty, such breach is established and found to be causative of YB’s damage, YB and/or others contributed to YB’s injury, loss and damage.
41 As to factor A, this requires an analysis of the damages Battaglia would have been liable to pay disregarding the extent, if any, to which any other person’s act, default or negligence caused or contributed to YB’s injury. Again, contributory negligence is relevant to the determination of this factor.
42 Factor C may be influenced by the outcome of Spark’s action against Battaglia under s23B of the Wrongs Act 1958.
Issues to be determined in the contribution proceedings brought by Spark under Section 23B of the Wrongs Act 1958
Statutory framework
43 Section 23B of the Wrongs Act 1958 provides:
“23B Entitlement to contribution
(1)Subject to the following provisions of this section, a person liable in respect of any damage suffered by another person may recover contribution from any other person liable in respect of the same damage (whether jointly with the first-mentioned person or otherwise).
(2)A person shall be entitled to recover contribution by virtue of subsection (1) notwithstanding that that person has ceased to be liable in respect of the damage in question since the time when the damage occurred provided that that person was so liable immediately before that person made or was ordered or agreed to make the payment in respect of which the contribution is sought.
(3)A person shall be liable to make contribution by virtue of subsection (1) notwithstanding that that person has ceased to be liable in respect of the damage in question since the time when the damage occurred unless that person ceased to be liable by virtue of the expiry of a period of limitation or prescription which extinguished the right on which the claim against that person in respect of the damage was based.
(4)Subject to section 24(2B), a person who in good faith has made or agreed to make any payment in settlement or compromise of a claim made against that person in respect of any damage (including a payment into court which has been accepted) shall be entitled to recover contribution in accordance with this section without regard to whether or not the person who has made or agreed to make the payment is or ever was liable in respect of the damage provided that that person would have been liable assuming that the factual basis of the claim against that person could be established.
(5)Subject to section 24(2B), a judgment given in an action brought by or on behalf of the person who suffered the damage in question against any person from whom contribution is sought under this section shall be conclusive in the proceedings for contribution as to any issue determined by that judgment in favour of the person from whom the contribution is sought.
(6)References in this section to a person's liability in respect of any damage are references to any such liability which has been or could be established in an action brought against that person in Victoria by or on behalf of the person who suffered the damage and it is immaterial whether any issue arising in any such action was or would be determined (in accordance with the rules of private international law) by reference to the law of a place outside Victoria.”
44 Section 24 of the Wrongs Act 1958 provides:
“24 Recovery of contribution
...
(2)Subject to subsections (2A) and (2B), in any proceedings for contribution under section 23B the amount of the contribution recoverable from any person shall be such as may be found by the jury or by the court if the trial is without a jury to be just and equitable having regard to the extent of that person's responsibility for the damage; and the jury or the court if the trial is without a jury shall have power to exempt any person from liability to make contribution, or to direct that the contribution to be recovered from any person shall amount to a complete indemnity.
(2A)Where the amount of the damages which have or might have been awarded in respect of the damage in question in an action brought in Victoria by or on behalf of the person who suffered it against the person from whom the contribution is sought was or would have been subject to—
(a)any limit imposed by or under any enactment or by any agreement made before the damage occurred;
(b)any reduction by virtue of section 26; or
(c)any corresponding limit or reduction under the law of a place outside Victoria—
the person from whom the contribution is sought shall not by virtue of any contribution awarded under section 23B be required to pay in respect of the damage a greater amount than the amount of those damages as so limited or reduced.
(2B)If in any proceedings for contribution under section 23B the jury or the court, if the trial is without a jury, finds that the amount of any payment made or agreed to be made in settlement or compromise of a claim was excessive the jury or the court (as the case requires) in assessing the amount of the contribution recoverable from any person shall disregard any part of the payment which appears to it to have been excessive.
(2C)Nothing in subsection (2B) applies to a settlement or compromise of a claim of a minor or person of unsound mind that has been approved by the court.
(3)No execution for the recovery of contribution under section 23B shall issue without the leave of the court. Upon application for such leave the court may direct that payment to the original plaintiff shall be sufficient satisfaction of the order for contribution.
(4)Notwithstanding any provision in any statute requiring a notice to be given before action or prescribing the period within which an action may be brought, where under section 23B any person becomes entitled to a right to recover contribution in respect of any damage from any other person, proceedings to recover contribution by virtue of that right may be commenced by the first-mentioned person—
(a)at any time within the period—
(i)within which the action against the first-mentioned person might have been commenced; or
(ii)within the period of twelve months after the writ in the action against the first-mentioned person was served on him—
whichever is the longer; or
(b)where another person liable in respect of that damage, within the period within which the action against him might have been commenced or within twelve months after the writ in the action was served on him, serves a writ on the first-mentioned person seeking to recover contribution in respect of that damage from the first-mentioned person—at any time within the period of six months after that writ is so served.
(5)For the removal of doubt, if an action (the existing action) was commenced in a court against the first-mentioned person referred to in subsection (4) before 1 October 2003, the period referred to in subsection (4)(a)(i) is to be taken to be the period within which the existing action might have been brought at the time the existing action was brought.”
The elements of the claim under Section 23B of the Wrongs Act 1958
45 For present purposes, there are three elements to this cause of action. Spark must prove on the balance of probabilities:
(i) Spark was liable in respect of damage suffered by YB; and
(ii) Spark made payment to YB in good faith in settlement or compromise of a claim she made against Spark for that damage; and
(iii) Battaglia contributed to the same damage (whether jointly with Spark or otherwise).
46 If these elements are established, the amount of contribution recoverable from Battaglia will need to be determined. That amount must be just and equitable having regard to the extent of Battaglia’s responsibility for the damage. The Court must disregard any part of the settlement payment that appears to have been excessive. Again, the question of contributory negligence from YB or any other person arises.
The questions to be decided
47 The first element is not disputed. YB was Spark’s employee. As employer, Spark owed YB a non-delegable duty of care. YB was injured in the course of her employment with Spark.
48 The second element is not in dispute.[24] The defendant has not challenged the bona fides of Spark in relation to the settlement it reached. Rather, the defendant’s focus has been on the “reasonableness” of the settlement sum. Put more precisely, the issue raised for consideration is whether the settlement sum or any part of it was excessive. If the settlement sum was excessive, what amount represents the excess, so that it can be disregarded? In this regard, the plaintiffs claim legal professional privilege over the legal advice and documents created to advise on the settlement reached between YB, Spark and the VWA. The defendant submits that in the absence of this material, and because the acceptance of YB’s evidence may be critical to this element, the Court should not exclude the reasonable probability that the settlement sum was excessive.
[24]Concession made by Mr Murdoch on 4 November 2016; T879
49 The defendant submits that I should not exclude the reasonable probability that the settlement sum was excessive for two reasons:
(i) The second plaintiff’s failure to produce any evidence about what facts it took into account when agreeing to pay YB the settlement sum; and
(ii) Without that evidence, the sum of the claim stands or falls on YB’s evidence. If her evidence is rejected, the contribution proceedings must fail. If the evidence is admitted, it should be given little, if any, weight.
50 The third element is in issue. Battaglia disputes that it is liable to make contribution to Spark for the same damage. In this regard, Battaglia argues that any claim against it is statute barred, or cannot be maintained as a matter of statutory construction.
51 Spark’s case against Battaglia for contribution is based on the same allegations raised in support of the claim for indemnification under s138 of the Act. Accordingly, similar issues arise regarding Battaglia’s alleged liability to make contribution.
Overview of the evidence
52 I mentioned that YB commenced her evidence but did not complete it. The plaintiffs also called a number of other witnesses and tendered many documents.
YB’s evidence-in-chief given to the point of her non-attendance
53 As mentioned above, YB commenced her evidence through an interpreter on the third day of hearing, 16 April 2015.[25]
[25]T124
54 YB was born in Turkey in August 1964, where she was educated to the end of high school. She then undertook a tourism and hospitality course. Her working experience in Turkey was as a waitress. She married in 1984 and her first child was born in 1986. With her husband and daughter, she immigrated to Australia in 1988. Shortly after arriving here, she worked as a heavy press operator for the Ford Motor Company (“Ford”) for approximately two years.
55 YB sustained a workplace injury in the course of her employment at Ford when she was struck in the chest by a safety bar.[26] YB stopped work for Ford in approximately 1990 and then began employment for a labour-hire company, Pejak, on market farms, where she picked cauliflower, broccoli and lettuce. She was also involved in other aspects of the industry, including packing and sometimes planting vegetables.[27]
[26]T125
[27]T126
56 YB worked for Pejak until approximately 2000. In the meantime, in 1995, her second child was born. After the birth of her son, she resumed working for Pejak.
57 YB’s marriage ended in 1998 and in 2000 it was dissolved.[28] The unhappiness in YB’s marriage and subsequent divorce caused a number of emotional and psychiatric problems for YB.
[28]T127
58 In 2000, YB resumed employment as a farm labourer for a labour-hire company. She was employed by Ismet and Muzeyyen Turkkan,[29] trading as Ismet Muzeyyen Contracting (“Turkkan”). YB worked for Turkkan from 2000 until 2007, at which time Nurhan Kivilcim acquired the business, which became Spark, the second plaintiff.[30] While working for Turkkan, YB performed similar duties to those she performed while working for Pejak.[31]
[29]T128
[30]T128
[31]T128
59 At some point in her employment, either with Turkkan or with Spark, YB regularly worked at “Tony and Rosa’s” farm.[32] I interpose here to say that the plaintiffs’ case is that I should infer that YB worked at Tony and Rosa’s farm prior to her employment with Spark, that is to say, prior to February 2007. On the other hand, the defendant submits that I should not draw this inference; rather, it is open to infer that YB also worked at Tony and Rosa’s farm whilst an employee of Spark. This question has a direct bearing on whether YB was injured and, if so, where she was working at the time of sustaining her injury and the extent of any such injuries. I shall later set out the relevant passages of transcript and other exhibits that have a bearing on this issue.
[32]T129
60 When YB worked for Turkkan, she mainly worked at Tony and Rosa’s farm, although, before that, she worked at “maybe three or four different farms”.[33] When working for both Pejak and Turkkan, YB would receive (or make) a telephone call the night before being placed at a farm. Her employer would inform her if there was a job for the next day, and, if so, the employer would collect her on the day of work, drive her and other workers to the farm and drop them off. The work performed at the farm was supervised by the farmer, who also set the pace of work. The farmer would also direct the labourers in the performance of their work.[34]
[33]T130
[34]T130
61 In regard to broccoli, it is grown and harvested year round, and there are different varieties, depending on the seasons and soil type. At Tony and Rosa’s farm, YB worked seven-and-a-half hours a day, including half-an-hour for breakfast. These hours were the same at all the farms at which YB worked, although the hours for breakfast would vary from farm to farm. When working at Tony and Rosa’s farm, the work tasks of the day would depend on the stage of growth of the broccoli. If the broccoli needed to be harvested that day, then it would be cut. That task could be performed all day, or they might pick broccoli until breakfast time and then plant broccoli after breakfast.[35] YB explained how broccoli is harvested:
“Once the broccoli has grown, you would hold the broccoli from the top and then you would get the knife and cut it straight. You need to cut it straight from the stem, and the broccoli has leaves and you remove the leaves off and clean it
… And then slowly we’ll put it in the bin.” [36]
[35]T131
[36]T132
62 YB further explained that the bins were mounted on a tractor. The farmer determines where on the stem to cut the broccoli, but in her experience, all farmers want the stems to be three or four fingers in length.[37]
[37]T132
63 A photograph generally showing how broccoli is harvested was tendered as exhibit FF. Sometimes the bins are plastic, sometimes they are made of wood, but they can hold roughly 300 to 400 kilograms of vegetables.
64 On Tony and Rosa’s farm, the tractor would be driven ahead of the workers and the bins were placed at the rear of the tractor. The workers followed the tractor, picking the broccoli, cleaning it and placing it in the bin.
65 While working at Tony and Rosa’s farm, although the only formal break time was the half hour for breakfast, there were informal breaks when the tractor reached the end of a row and turned, or when the bin was emptied. At the turning point, there was a “couple of minutes’ break”.[38] The breaks were longer when the bins were full and needed to be replaced. It could take up to half an hour, during which time the workers could either rest or be engaged in harvesting.[39] A photograph showing a tractor with bins containing harvested broccoli was tendered as exhibit G.
[38]T133. See also T135.
[39]T135
66 YB stated that after Turkkan was taken over by Spark, she no longer worked at Tony and Rosa’s farm because they had sold their business. She did not work at Battaglia until she commenced employment with Spark.[40] In her period of employment with Spark, she said she did not work on any other farm other than Battaglia.[41] Again, I interpose here, that this is a hotly contested issue and that there is other evidence that tends to contradict this assertion. I shall refer to the contradictory evidence later.
[40]T136
[41]T136
67 YB referred to the state of her health prior to her employment at Spark. In approximately 1997, she had been involved in a car accident, which caused left arm pain, although it did not last more than a few months.[42] YB was involved in a second car accident in April 2002, in which she sustained injury to her neck and right shoulder. She received treatment for these injuries for approximately eighteen to twenty-four months.[43] She made a claim in respect of her injuries. Although she could not recall much about her treatment, it would appear that for some time during 2002 and 2003, she was treated by Dr Dunning, general practitioner, for her transport accident injury.
[42]T136
[43]T136-137
68 During 1997 and 1998, YB began experiencing depression and anxiety in the context of her marriage breakdown. She was prescribed antidepressants and was admitted as an inpatient in a psychiatric ward “a few times”.[44] After she and her husband separated, YB attempted suicide some time between 2000 and 2002.[45] She then went to see a psychologist and continued to receive medication for her psychiatric condition. Her treatment continued for two or three years from her suicide attempt in 2002.[46] YB also received treatment in respect of hypothyroidism. In 2005, she also received treatment for a circulation problem which caused her hands to be “cold as ice”.[47] She was treated by a rheumatologist for this condition, and took prescribed medication. She testified: “I got better but still the coldness was remaining.”[48]
[44]T137
[45]T137
[46]T138
[47]T138
[48]T138
69 Although she could not recall accurately, YB agreed that she was treated by Dr Threlfall in relation to experiencing pins and needles in her wrists. This came on in approximately 2005.[49] She might have been working at Tony and Rosa’s farm at the time. YB received treatment with acupuncture for this condition.[50]
[49]T138-139
[50]T139
70 In July 2005, YB travelled to Turkey and while there, the symptoms of pins and needles in her wrists improved a little.[51] When working at Tony and Rosa’s farm during 2006, she no longer experienced pins and needles, but the “coldness was there”.[52]
[51]T139
[52]T139
71 In 2009, Dr Threlfall recommended to YB that she apply for a Disability Support Pension. Muzeyyen Turkkan was present during that consultation. YB said Dr Threlfall recommended that she go on the pension “[b]ecause my hands’ condition wasn’t good and he did acupuncture and he said to go on to disability support pension but I said, no, I wanted to work”.[53]
[53]T139, cf according to Dr Dunning’s clinical records, it was YB who appeared to initiate the application for a Disability Support Pension of 29 May 2006 (exhibit DDD) and this was on 29 May 2006 (exhibit DDD). “… Dr Threlfall is helping her with lontophoresis … She is off to Turkey for a Holiday and plans to no longer work Says she wants a Disability Pension Dr THrelfall can deal with that … . (sic)”
72 YB continued to work despite her problems. She worked at other farms and “it wasn’t that hard”.[54] During the final months of her work at Tony and Rosa’s farm, the only symptom she suffered was coldness.[55]
[54]T140
[55]T140
73 YB thought Tony and Rosa’s farm ceased trading in 2006 or 2007.[56] Between working at Tony and Rosa’s farm, and at Battaglia’s, YB worked on a number of other farms, perhaps four or five different farms. When working at Tony and Rosa’s farm, she did not have a regular farm at which to work.[57]
[56]T140
[57]T140
74 In 2006, YB did not have any problems or complaints about her neck or right shoulder. In 2006, before working for Spark, YB did not have difficulty with the work she was performing.[58] That year, YB again travelled to Turkey, where she was able to rest her arms. Prior to the trip, she had pain in her wrists “but not too much”.[59]
[58]T140-141
[59]T141
75 In 2007, Ismet and Muzeyyen Turkkan sold their business to Nurhan Kivilcim (“Kivilcim”), who renamed the business “Spark Contracting Pty Ltd”. Thereafter, she was a direct employee of Spark. The system under which YB worked was the same. She worked two days a week,[60] as she had done in the years previously. The night before a particular job, she would receive a call from her employer telling her there would be work the next day. On the day of work, her employer would collect her and drive her to the farm.[61]
[60]T141
[61]T141-142
76 While working for Spark, YB was placed at Battaglia’s farm on Duncans Road, Werribee. The farmer, Romeo Battaglia, supervised the work at the farm. He also directed where the work was to be performed. Kivilcim did not interfere with the work performed at the farm.[62] Only broccoli was grown at Battaglia’s farm. The workers would cut, package and plant the broccoli. YB worked there from approximately February 2007 to the end of October 2008, generally two days per week.[63]
[62]T142
[63]T142
77 Exhibit J, “Pay as You Go summary” for the financial year ending June 2008, was tendered. YB stated that the gross payments shown of $6,591 related to all the work she performed at Battaglia.[64]
[64]T143
78 At Battaglia’s farm, although Mr Battaglia directed the labourers how to cut broccoli, YB knew from prior experience how to do it. Each farmer, however, had their own requirements. “Some people want the broccoli not to be cleaned, some people want a shorter stem.”[65] Mr Battaglia did not direct YB where to cut the stem or how to clean the broccoli. He just asked “have you cut broccoli before?” There was no induction, “we just started directly working”.[66]
[65]T143
[66]T143
79 On arrival at Battaglia’s farm in the morning, Romeo Battaglia directed YB where to start picking and he also set the speed in respect of which the broccoli was cut. There was a big difference between the pace of cutting at Battaglia and Tony and Rosa’s farm.
“The fact that the speed to cut and the speed that the tractor is moving and the speed in which the workers at the front of the tractor are working, and the broccolis were quite heavy.”[67]
[67]T144
80 The speed of the tractor was set by Romeo Battaglia. The bins on his tractors were double the size of those at Tony and Rosa’s farm. At Tony and Rosa’s farm, the workers would be expected to pick fifteen or twenty bins of broccoli per day. At Battaglia’s farm, they were expected to fill “… [q]uite a lot. 30 and then I remember one day it was over 60 bins,”[68] although that was rare. Normally it was between thirty to fifty bins.
[68]T144-145
81 On Tony and Rosa’s farm, YB would have between five to ten seconds to pick each broccoli, but at Battaglia’s farm, it was “… maybe two or three seconds you have to pick and clean and put it in the bin”.[69]
[69]T145
82 On Tony and Rosa’s farm, for harvesting the broccoli, the tractor would travel ahead of the workers and the workers would all work on the same line of crops. If the workers did not keep pace with the tractor, the tractor waited until the workers caught up to it. At Battaglia, the labourers worked “very fast”.[70]
[70]T145
83 The broccoli grown at Battaglia’s farm was different to that grown on Tony and Rosa’s farm, where the broccoli were smaller, making them less difficult to cut. At Battaglia’s farm, the broccoli was much bigger, making it quite hard to cut.
“There was thick stem and [it] is really hard and you had to really push hard with your arm and the knife had to be really sharp.”[71]
(sic).
[71]T146
84 It was difficult to strip the leaves off because the leaves were thicker. Sometimes the broccoli were so big, it would not fit in the worker’s hand.[72]
[72]T146
85 At Battaglia’s farm, when the tractor completed a row and turned to commence on the next row, there was not much time for a break because Mr Battaglia was “quite an expert in turning his tractor around so he would turn it very quickly”.[73] The turning process was slower at Tony and Rosa’s farm, where the workers had time to light a cigarette and take two puffs from it. But at Battaglia’s farm, they did not even have a chance to light a cigarette.[74]
[73]T146
[74]T146
86 At Tony and Rosa’s farm, further informal rest breaks might occur when the bins were full and the tractor was driven into a shed to unload the harvested crops. However, Battaglia had two tractors and when one was full, the other would replace it immediately.[75]
[75]T146
87 Mr Battaglia did not tell the workers the speed at which they must work, he just drove the tractor. However, he did not want workers who were slow or who talked too much.[76] The workers were expected to keep pace with the speed of the tractor. If a worker was working too slowly, it was understood that worker was not going to be asked to come back and he would direct that particular worker to hurry up.[77]
[76]T147
[77]T147
88 The tractor was driven behind the workers at Battaglia’s farm. YB felt under pressure “… [b]ecause when we were cutting the broccoli and if you couldn’t cut it in time, you might still go under the tractor”.[78] The tractor could run automatically or be driven. If it was set to run automatically, Mr Battaglia set the speed; however, he would be working alongside the tractor and “… [i]f something happens, he would just jump onto the tractor”.[79] The speed at Battaglia’s farm was faster when compared to the speed of work at the other farms where YB was placed.[80]
[78]T156
[79]T156
[80]T157
89 Not every broccoli was cut in the same harvesting process, it depended on the size of the broccoli. The large ones had to be cut. When the workers were unable to keep pace with the speed of the tractor, Mr Battaglia would see that too many broccoli were left behind and he would slow down or stop.[81] That occurred maybe once or twice a day.[82] Workers might fall behind the tractor or work on the sides of the tractor but, “… if you’re at the front of the tractor, the tractor would push you to work hard. If it’s left and they’re behind the tractor, you had to go and pick up those broccolis”.[83] YB never asked Mr Battaglia to slow the tractor down because “We were frightened … He was a hard man and the work had to finish and working there was like working in an army.”[84]
[81]T148
[82]T148
[83]T148-149
[84]T149
90 Towards the end of her work at Battaglia’s farm, the symptoms in YB’s wrists became quite bad. It affected her sleep and she used to take Voltaren, Panadol or Panamax before she went to work. In 2007, she was not taking that much Voltaren or Panamax, but in the month before she went to Turkey in 2008, she started taking Voltaren and Panamax again. She went to Turkey in about July or August 2008 and spent approximately ten weeks there.[85] Before going to Turkey, she took these medications “every now and then” but when she returned from Turkey and resumed work, she took them quite regularly”.[86]
[85]T149-150
[86]T150
91 In 2008, YB suffered an increase of pins and needles and swelling in her wrists. The pain was so bad it affected her sleep. This started before she went to Turkey, but it became worse when she returned.[87] YB testified that there was “a bit of difference” in the severity of her symptoms in 2008 when compared to those she suffered in 2005 – 2006.[88] During the working day, her symptoms became worse. “In the mornings, so about half an hour into the work, once we started working it became sort of worse.”[89] Towards the end of the day it was quite painful.[90]
[87]T150
[88]T150
[89]T150
[90]T150
92 Towards the beginning of 2008, YB also experienced symptoms in her neck.[91] YB thought she spoke to Mr Battaglia when she returned from Turkey. “I told him about my neck and then he sort of actually gave me a phone number of a physiotherapist and he said to go after that.”[92] She thought this conversation may have occurred two or three weeks after her return from Turkey. YB stated that she went to see the physiotherapist that Mr Battaglia recommended.[93]
[91]T150
[92]T150-151
[93]T151, cf exhibit N for identification; paragraph [21], affidavit of YB, sworn 10 August 2012, where she says “I had been referred to the physiotherapist by another person working at the farm”.
93 Before YB travelled to Turkey she borrowed between $20,000 and $25,000 from the bank. Her children had grown up and she was contemplating a return to full-time work. “I thought about working for a few months and then changing it to full time after that.”[94] She intended to do the same sort of work on farms or, perhaps, work in a factory.[95] When she returned from Turkey, YB continued to work at Battaglia’s farm. She thought she may have started there in mid-September or, maybe, towards the end of September.[96]
[94]T151
[95]T151, cf the earlier note in Dr Dunning’s clinical records dated 29 May 2006 to the effect that YB intended to stop work and go on a Disability Support Pension. See exhibit DDD.
[96]T152. If YB first complained to Mr Battaglia two or three weeks after her return from Turkey, it would have been only a matter of weeks before she ceased work.
94 In October 2008, YB worked at Battaglia’s farm and, as a consequence, her neck and shoulders became worse:
“The broccolis were too big and too hard and too heavy and I wasn’t able to manage with that … I had pain on my neck and going down to my shoulder and that’s why Mr Battaglia gave me the name of the physio.”[97]
[97]T152
95 YB thought she may have worked a few more times after that “but I just went there to pick up my stuff”.[98]
[98]T152
96 YB stopped work on 28 October 2008. She saw her doctor because, by the end of October 2008, her neck and shoulder pain was “really bad”.[99] YB thought the work “impacted a lot because I had the pain and then swelling on the arms and unable to do the task any more” (sic).[100] By the end of October 2008, YB was unable to cope with bending down and cutting broccoli. She was in severe pain and “just couldn’t manage it any more”.[101]
[99]T152
[100]T152
[101]T153
97 YB saw her general practitioner, Dr Dunning, who referred her to Dr Threlfall. With the assistance of Kivilcim’s wife, YB completed a Claim Form for compensation on 10 November 2008.[102] The claim was accepted and YB received payments of compensation for her medical expenses. She also received some weekly payments she described as “weekly wages”.[103] As at the date of giving her evidence, the insurer was continuing to meet YB’s medical expenses.[104] Towards the end of 2008, YB changed general practitioners. She commenced seeing Dr Sachdev in Norlane.[105]
[102]Exhibit K, T153
[103]T154
[104]T154. It would appear weekly payments were terminated at some point, as YB took action in the Magistrates’ Court to reinstate them: T174, T177-179, T184-186, T224-225 and T295.
[105]T154
98 YB first experienced the onset of neck and right shoulder pain when she was working at Battaglia’s farm cutting broccoli.[106] YB reported her pain to Dr Threlfall, who issued a Certificate of Capacity, the first of which was issued in November 2008.[107] Thereafter, YB received a number of such certificates in response to further complaints of neck, arm and wrist pain.[108]
[106]T157
[107]Exhibit TT
[108]T158; exhibit L
99 By the end of 2008, YB’s psychological state was “… really bad … Doctors could not help me financially. I wanted to work and I couldn’t work and in all sorts of ways.”[109] YB was unable to work because of the pain. Although she could not remember which year it was, YB stated she had received treatment for her psychological condition. The Certificate of Capacity referable for 16 January 2009 was signed by Dr Sachdev, who also treated YB for her depression. He prescribed Zoloft, but her medications were frequently changed. YB complained to Dr Sachdev of pain in her hands and neck. Dr Sachdev referred YB to Dr Wood, rheumatologist, whom she saw in 2009.[110]
[109]T158
[110]T159
100 In April 2009, YB had an MRI scan on her neck. In 2010, she commenced seeing Dr Preety Jain at the same clinic where Dr Sachdev worked.[111] In that year, YB continued to complain of pain in her neck, arms and wrists. By then she needed help with mowing the lawns because she could not push the mower due to right-sided pain in her neck, shoulder and wrist.[112] YB underwent surgery and after that, the insurer paid for some home help.
[111]T160
[112]T160
101 In about 2011 or 2012, YB went on a Disability Support Pension.[113] Her daughter receives a Carer’s Pension for looking after YB[114] as she needs assistance with cooking and cleaning the house. Sometimes she forgets to take her medication and her daughter reminds her to take it.[115]
[113]T161
[114]T161. YB’s daughter did not give evidence.
[115]T16
102 In March 2010, YB was referred to Dr Andrew Muir, pain specialist, who has managed her pain medication since around that time.[116] He has trialled many different medications to alleviate her pain.[117] Both Dr Muir and her general practitioner prescribed medication for YB. She takes OxyContin, Endone, Brufen, Nexium, Coversyl, Crestor, Seroquel and Dothep. YB takes two OxyContin tablets of 20 milligrams, one at morning and one at night, for her pain in her neck, shoulder and “everything”.[118] She takes 5 milligrams of Endone once per day, also for these pains. Brufen was added in 2014 and she takes it three times a day. Because of all of her medications and their side effects on her stomach, YB also takes Nexium. She takes Crestor and Coversyl for blood pressure and for high cholesterol.[119] Seroquel is prescribed for sleep and to alleviate pain. YB has difficulty sleeping at night because “I can’t seem to shut my brain and I have pain in my body … neck and the rest.”[120] YB takes Dothep, an antidepressant prescribed by Dr Jain at a dose of approximately 75 milligrams.[121] A bundle of Certificates of Capacity was tendered as exhibit L, covering the period November 2008 to 16 July 2010.[122]
[116]Exhibits OOO – CCCC, both inclusive
[117]T161-162
[118]T162
[119]T162
[120]T163
[121]T163
[122]T164
103 After stopping work at Battaglia’s farm, YB attempted a return to work. She got a job through a friend who was working at the Corio Shopping Centre as a cleaner. She worked full time for a few weeks, but then could not manage it anymore. Her work there involved using a ride-on buffing machine to polish tiles. The problem was:
“When the buffer is going, you need to sort of keep on leaning this side to look where you’re going and it started giving me pain in my neck.”[123]
[123]T165. Note, there is evidence that YB worked as a cleaner for more than a few weeks – see exhibit W, Dr Karna’s report – YB said she worked for three months between May and August 2009 as a cleaner using a scrubbing machine.
104 YB has not worked since. “I can’t even do anything at home.”[124]
[124]T165
105 YB has undergone a number of diagnostic tests, such as MRI scans and nerve conduction studies. She underwent right carpal tunnel release surgery in March 2010, performed by Mr McDonald, plastic surgeon.[125] YB did not think the operation helped her.[126] She was also referred to Mr Greg Malham in 2009,[127] and to Dr John Barlow, neurologist. In 2010, she was referred to Mr Hunt, orthopaedic surgeon.[128] Since 2010, her treatment has largely been with Dr Muir and Mr Hunt.[129]
[125]Exhibits WW, XX, YY and ZZ
[126]T165
[127]Exhibits LLL, MMM and NNN
[128]Exhibits PPP, DDDD to VVVV
[129]T165
106 YB has also had a number of injections into her neck and shoulder, although she did not think these helped her at all.[130]
[130]T166
107 In 2011, Mr Hunt recommended that YB undergo neck surgery involving fusion of two affected discs. She was unsure whether funding had been approved.[131] In mid-2011, Mr Hunt recommended that YB undergo right shoulder surgery, which she had in November 2011. That surgery was “somewhat successful because before I couldn’t lift my arm and now I can, so I can lift my arm”.[132] But the surgery had no effect on her pain, which is constantly there in her neck and shoulder, as is the pain in her wrists, where she also suffers pins and needles.[133]
[131]T166
[132]T166
[133]T166
108 The physical pains continue to have an impact on YB’s emotional state. She has had suicidal thoughts and attempted suicide in April 2011. “At that stage, I took tablets again with alcohol, because nobody believed me. I was the one living through the pain, my life was in turmoil.”[134] After this, YB was sent to a psychiatrist, Dr Edmond Van Ammers, who prescribed medication for her psychiatric condition.[135]
[134]T167
[135]T167
109 In July 2010, YB made a Claim for Impairment Benefits in respect of Bilateral Carpal Tunnel Syndrome, neck pain, psychiatric pain and right shoulder pain.[136] In the form, YB claimed the injury occurred as a result of repetitive cutting and picking of vegetables.[137] In 2012, she was assessed by the Medical Panel, following which she received $19,000 by way of compensation.[138] After receipt of this payment, YB made a “serious injury application” through her solicitors, Zaparas Lawyers.[139] A serious injury certificate was granted without YB having to go to court.[140]
[136]T167-168
[137]Exhibit M, YB’s Claim for Impairment Benefits dated 16 July 2010
[138]T168
[139]T168
[140]See Exhibit JJJJJ
110 After she was granted the serious injury certificate, YB attended a settlement conference at which her case was settled. YB signed a Release following the settlement[141] and this brought an end to her claim against Spark for common law damages.[142] The settlement sum was $100,000 and YB was not required to pay back the $19,000 received (for permanent impairment).[143]
[141]Exhibit C
[142]T169
[143]T169
111 At this point, the witness withdrew. She did not return when called on 20 April 2015, as mentioned earlier.
Other evidence called on behalf of the Plaintiffs
112 A number of witnesses gave viva voce evidence. However, no family member of YB was called.
Mark Edward Hennessy, ergonomist
113 Objection was taken to a report prepared by Mark Edward Hennessy, ergonomist. Mr Hennessy first gave evidence on the voir dire.[144]
[144]T313
114 When preparing his report tendered as exhibit Q, for identification,[145] Mr Hennessy had access to a number of documents. They were also tendered for identification.[146] Although noting the contents of these documents, Mr Hennessy relied on his interview with YB and her affidavit.[147] He also assumed facts as set out in a letter of instruction from Russell Kennedy, solicitors.[148] Mr Hennessy interviewed YB at her home.
[145]Report dated 8 April 2014
[146]Exhibit Q1 – statement of YB dated 26 November 2008; exhibit Q2 – statement of Anne Pratt dated 24 January 2013, and exhibit Q3 – statement of Nurhan Kivilcim.
[147]T315
[148]T315
115 Regarding the assumed facts, Mr Hennessy testified:
“Those facts formed the factual basis of the opinion. I also relied on the fact that I had actually cut broccoli myself at home. Whether that is the sort of thing you’re after or not, I don’t know, but other than that, it was based on those three sources.”[149]
[149]T316
116 In cross-examination on the voir dire, Mr Hennessy testified:
““My opinion is based on … [YB’s] opinion that the work was fast and repetitive and on the fact that she told me she was cutting a broccoli about every two or three seconds. I’m not able to validate that scientifically. I’ve not seen the tractor, nor how fast it moves; I’ve not seen her work, nor how fast the work is done. One of the reasons we chose not to do it is that my understanding is broccoli is a seasonal vegetable and it was not available at the time that we were doing the investigations.”[150]
[150]T318, cf YB’s evidence to which I have already referred, that broccoli is grown and harvested all year round, although the variety depends on the season and the soil – T131.
117 Mr Hennessy agreed that he had never conducted any investigations into broccoli farming prior to this case, nor had he done so since:
“… [t]his is the first investigation I have done on broccoli.”[151]
[151]T318
118 Mr Hennessy agreed that he did not attend any farm:
“… I have never seen broccoli being harvested commercially.”[152]
[152]T319
119 Mr Hennessy agreed that the force required to cut broccoli would be reduced if the knife were sharp enough, although he added:
“… [YB] told me that she thought the knives were okay and that the bus driver used to look after the knives and replace them. She did not report a particular problem with blunt knives to me.
…
All I’m saying is that that is one line of safety practice that an employer could take, would be to make sure the knives were as sharp as they needed to be.
…
… a lot of injuries happen in industry, in my opinion, because the knives are not sharp enough.”[153]
[153]T319–320
120 Mr Hennessy noted the contents of Anne Pratt’s statement but did not rely on any of it:
“I restricted my opinion to the most reliable sources that I could. In carrying out my practice, I try and provide opinions on the facts that I think will be accepted by the court and in that I usually try to stick to sworn evidence and the interviews that I conduct and the observations that I do and the instructions of the solicitor.”[154]
[154]T320
121 Mr Hennessy adopted paragraphs 8 to 10 and 17 to 20 of YB’s affidavit.[155]
[155]T321
122 At the conclusion of Mr Hennessy’s evidence on the voir dire, the objection to the admissibility of his evidence was withdrawn. Mr Hennessy then gave further evidence, during which his report was tendered absolutely.
Exhibit Q – Mr Hennessy’s report
123 At paragraph 2.3, Mr Hennessy noted that he was asked to report on the safety aspects of the matter and in particular, to report on the following issues:
“1In your opinion, did the work performed by the worker pose a risk of injury? If yes, please explain the basis and the evidence relied on by you to reach your conclusion.
2In your opinion, was the system of work suitable in the circumstances? If no, please explain the basis and the evidence relied on by you to reach your conclusion.
3In your opinion was the risk of injury foreseeable and preventable? If yes, please explain the basis and the evidence relied on by you to reach your conclusion.
4In your opinion what could and should have been done to prevent, minimise or alleviate the risk of injury? Please explain the basis and the evidence relied on by you to reach your conclusions.”[156]
[156]Exhibit Q, page 8
124 Under the heading “Assumed Facts”, Mr Hennessy noted that YB’s work and the onset of her symptoms were described in the instructing solicitor’s letter, part of which is reproduced in the report:
“Between 1990 and 2000 the worker did casual work at market farms around Geelong. In 2000 she commenced employment for ‘Ismet Muzeyyen Farm Contractors’ performing work at various market farms around the Geelong area.
In 2007 Nurhan Kivilcim bought the business and renamed it Spark Contracting Pty Ltd (‘Employer’). The Employer continued to provide labour to market farms in and around the Geelong area.
In 2008 the worker worked at several market farms however she primarily worked at a farm owned by Romeo Battaglia Farms (‘Defendant’).
[522]No incident report about the circumstances of the injury at Ford was tendered
Witnesses not called
561 I have mentioned that no witnesses were called from any of the farms at which YB said she worked or may have worked during the relevant period. Also, no member of YB’s family was called to give evidence. YB’s daughter is her carer, yet she was not called by the plaintiffs.
Conclusion
562 In all the circumstances, I am not satisfied on the balance of probabilities that in the relevant period, YB worked solely at the defendant’s farm. I have adjusted the weight of YB’s evidence to take account of the fact that the defendant was deprived of the right to cross-examine her specifically about her prior inconsistent representations and generally about other matters affecting her credibility.
563 The plaintiffs have elected to “put all their eggs in one basket”. In view of my conclusion that the plaintiffs have failed to exclude the probability that YB worked elsewhere in the relevant period, the plaintiffs’ case is fatally flawed and must fail.
Other problems in the Plaintiffs’ case
564 Before finishing these reasons, I should note that there were other unsatisfactory elements of the plaintiffs’ case. I shall not refer to them all. I shall list a few examples only:
System of work
565 There are several difficulties with the plaintiffs’ case on the question of whether the defendant’s system of work was responsible for YB’s injury, loss and damage and if altering that system would have made a difference. The difficulties include:
(a) Although the plaintiffs point to the defendant’s failure to call evidence, no Answers to any Interrogatories asked of the defendant about the system of work were tendered. There are no admissions about the details of the system. The burden of proving it was an unsafe system rested with the plaintiffs.
(b) Mr Hennessy, the only expert to give evidence in the field of occupational health and safety, frankly admitted that he never attended the defendant’s farm, or any other commercial broccoli farm for that matter, and he never inspected the defendant’s system of work. He treated YB’s representations as assumed fact. He has no experience in commercial farming of broccoli. His sole experience of growing broccoli was as a home gardener growing small quantities of crops, not necessarily the same varieties of broccoli grown by the defendant, a fact Mr Hennessy readily conceded. In fact, Mr Hennessy was unaware of the particular variety of broccoli that the defendant grew.
(c) Mr Hennessy based his assessment of the time it takes to cut and clean a head of broccoli on YB’s representations. I have been unable to accept YB’s evidence on the balance of probabilities because it was not tested by cross-examination, and because of the inconsistencies in her accounts as referred to above. But that is not the only reason to reject Mr Hennessy’s conclusions. He referred to the sharpness of the knife being an important factor in the force required to cut the broccoli. The sharper the knife, the less force required. According to YB, she had no complaint with the sharpness of her knife, which she sharpened herself and which was issued by her employer, not the defendant, and which she took home each night. And YB also could ask for a new knife at any time she wanted. No tests were performed on any type of knife and there is no scientific analysis of the force required to cut broccoli with such a knife (sharp or blunt) or the impact on the musculoskeletal system of such activity based on that analysis.
(d) No medical expert has been asked to view the defendant’s farm or system of work.
(e) There was no evidence about the system of work at any other broccoli farm apart from Tony and Rosa’s farm. By implication, the plaintiffs held up Tony and Rosa’s farm as a model of a good system of work because it was essentially inefficient. There was one tractor and when its load was full, it disappeared to unload while the workers enjoyed a cigarette break. The tractor was inefficient in turning, giving the workers time to have another cigarette. Also, the broccoli was not of the same high quality as that grown by the defendant.
(f) If Tony and Rosa’s farm sets the benchmark of a good and safe system of work, the plaintiffs have not explained how or why YB developed her symptoms in the period she worked there under that system, or how her injuries could have been prevented. YB’s symptoms date back as early as 2005. On the plaintiffs’ case, she must have been working there before the period alleged in the Further Amended Statement of Claim because their case is that Tony and Rosa’s farm ceased operation before then. Neither Tony nor Rosa were called to give evidence about their system of work, their period of operation or about YB.
(g) I do not accept that it is valid to compare what appears to be an inefficiently run family farm with the defendant’s farm. Efficiency is not prima facie evidence of an unsafe workplace or work system and injury is not prima facie evidence of negligence.
(h) I am not satisfied that the particulars alleged to constitute an unsafe system of work are established:
“(c) Failing to provide adequate and safe plant and equipment”
and
“(f) Failing to provide … [YB] with any or any adequate assistance (mechanical or otherwise) in the performance of her duties.”
566 YB provided her own hat, gloves and gumboots. Her employer provided the knife, which she sharpened herself, and about which she had no complaint. No evidence was tendered to explain what other plant and equipment or assistance could or should be provided to plant, harvest and/or pack broccoli.
“(d) Failing to inspect the premises and/or the plant.”
567 It was not suggested by whom and in what circumstances this should be done and what the likely outcome would have been had it been done. Mr Hennessy did not inspect the premises and he could not, and did not, speculate what such an inspection might have achieved.
“(e) Failing to ensure that reasonable care was taken for … [YB’s] safety whilst performing her duties”
and
“(n) Exposing … [YB] to unnecessary risk of injury.”
568 I take these paragraphs to assert a general breach of duty.
“(g) Failing to have any or any proper system of rotation of … [YB’s] duties.”
569 The work for the day depended on the state of growth of the crops.[523]
[523]See paragraph [60] as to job dependency on state of growth, for example Tony and Rosa’s farm – T131
570 It was not explained what other duties should be allocated if the only job for the day was harvesting broccoli, or what difference this would have made.
“(h) Failing to provide … [YB] with any or any appropriate work/rest breaks in the circumstances.”
571 Mr Hennessy’s evidence was to the effect that workers should be encouraged to set their own pace, but he did not say how likely it is that this would have made any difference in view of the fact that YB developed symptoms in a working environment at Tony and Rosa’s farm where there were frequent breaks.[524] In any event, it has not been established to my satisfaction that YB did not set her own pace. The submission that the pressure of the pace was imposed by the speed of the tractor is misdirected. Not all workers worked ahead of the tractor, if indeed the tractor was behind them, some worked off to the side. If the tractor’s pace was too fast, and I am not satisfied that it was, YB could simply have stepped off to the side. And there is evidence that Mr Battaglia slowed the tractor down if the workers were unable to keep up. No-one was ever struck by the tractor.
“(i) Failing to investigate the extent to which the movements of … [YB] were likely to cause the development of wrist, shoulder and neck injuries;
(j) Failing to carry out any or any adequate risk assessments of the work process; and
(k) Failing to take adequate steps to eliminate the risk of … [YB] being injured.”
[524]See paragraph [60] – YB testified that the break times at Tony and Rosa’s farm were of the same duration as those at the other farms where she worked – See paragraph [64] and T133 and T135.
572 There is no evidence before me to establish no such investigation took place. No such interrogatory asked of the defendant was tendered. More significantly, it is not known what the outcome of such an investigation would likely be or how the risk of injury could be eliminated or reduced in such a labour-intensive primary industry when there is no expert evidence about the actual system in operation. Would such an investigation have made any difference? At Tony and Rosa’s farm, YB used (apparently) the same physical movements to perform her work, yet in that period of employment, she either developed symptoms or aggravated an underlying degenerative condition, even though the work may have been performed at a slower pace than at the defendant’s farm and upon broccoli of inferior quality to that grown by the defendant.
“(l) Failing to supervise the work of those working on the premises properly or at all.”
573 I am not clear on what is meant by this particular or how further supervision would have altered the outcome. The workers were supervised and directed by Mr Battaglia when they were at his farm. YB testified that Mr Battaglia directed the workers how to cut broccoli. YB drew on her experience in performing these tasks and it would appear Mr Battaglia’s direction is of no causal consequence.[525]
“(m) Failing to implement occupational health and safety policies.”
[525]T143 – T144
574 There was no evidence to this effect, but also there was no satisfactory evidence that this would likely have made any difference.
“(o) Exposing … [YB] to a risk of injury of which the Defendant knew or ought to have known; and
(p) Exposing … [YB] to a risk of injury which could have been avoided with reasonable care on the part of the Defendant.”
575 There was no evidence that under the defendant’s system of work any other person had ever been injured at the defendant’s farm. As the plaintiffs assert, all manual handling exposes the manual handler to risk of musculoskeletal damage. On this theory, every manual handler is exposed to the risk of injury. If the obligation was to not expose the worker to the risk or to avoid the risk altogether, the only way that this could be achieved on the evidence was to not permit the workers to work in the field or in the packaging section (and that was the job). Exposure to risk of injury does not of itself prove negligence. The question is whether the risk has eventuated. It was not explained how, in this labour-intensive job that involves the use of a knife and requires manual handling, exposure to risk of injury could be avoided totally. As mentioned, there was no evidence about the availability or practicability of any such machinery, if it exists, that could be acquired or utilised to plant, harvest and pack broccoli. There was no evidence about whether such machinery exists, what it can do, how much it costs and whether it can stand as a complete or partial substitute for a farm hand.
576 As to whether Mr Battaglia was aware of YB’s condition, there is conflicting evidence about whether YB complained about her symptoms directly to him as a consequence of which he allegedly referred her to a therapist. When her neck pain started, YB said, according to Mr Hennessy, that Romeo Battaglia gave her the number of a masseur. In her evidence-in-chief, YB testified that she thought towards the beginning of 2008 she spoke to Mr Battaglia. It was about two or three weeks after she returned from Turkey. “I told him about my neck and then he sort of actually gave me a phone number of a physiotherapist and he said to go after that.”[526] However, in her affidavit sworn 10 August 2012,[527] she did not depose to any such conversation with Mr Battaglia. Rather, she deposed: “I had been referred to the physiotherapist by another person working at the farm.”[528]
[526]T150-151. See also T152
[527]Exhibit N
[528]Exhibit N, paragraph [21]
577 Without the benefit of cross-examination and in view of the other inconsistencies in YB’s accounts referred to above, I am unable to say one way or another which, if either, of YB’s versions on this matter is the most probable. I am therefore unable to find that the defendant had any actual knowledge of YB’s condition. I should add here that I do not infer that it was a matter about which he ought to have known, as the plaintiffs have not identified the facts, matters or circumstances that justify such an inference. There is no suggestion that YB showed any objective signs that she was struggling to perform her work or that she was in any way affected or burdened by any injury or illness.
578 To the extent that Mr Hennessy stated that workers should be encouraged to speak up about difficulties, YB’s evidence was that she kept her condition confidential, as she did not want to lose her job. It is unlikely that a policy of speaking up would have made any difference. In any event, YB did not say she would have acted differently had such a policy prevailed.
“(s) Requiring … [YB] to perform frequent repetitive and forceful movements and operations involving stress to her shoulders, neck and wrists cutting broccoli thereby exposing … [YB] to unreasonable risk of injury in … [YB’s] circumstances; and (t) Requiring … [YB] to perform work which involved frequent, forceful and repetitive movements and operations that imposed unreasonable strain on … [YB’s] shoulders, neck and wrists.”
579 I make observations similar to those in respect of the previous particulars.
“(q) Permitting … [YB] to work with an excessive workload.”
580 There was no evidence as to what would have constituted an “appropriate workload”, much less that YB’s was excessive:
“(r) Requiring … [YB] to work at high speed.”
581 There was no evidence that the defendant set an actual speed within which YB had to cut and clean a head of broccoli. Mr Battaglia set the pace of the tractor,[529] not the workers, and if the workers did not keep up with the tractor, he slowed it down. Mr Hennessy was unable to quantify a speed that did not pose a high risk of musculoskeletal injury.
“(u) Failing to comply with the provisions of the Occupational Health & Safety Act 2004.”
[529]T147, YB’s evidence
582 A breach of Part 3 the Occupational Health and Safety Act (general duties relating to health and safety) does not confer a right of action in civil proceedings in respect of a contravention of that Part.[530] No specific provision is mentioned in the particular as pleaded.
“(v) Failing to comply with the provision[s] of the Occupational Health & Safety Act 2004 and the Regulations made thereunder as a person who manages or controls the work place.
(w) Failing to comply with the provision[s] of the Occupational Health and Safety Regulations 2007 and any applicable Occupational Health and Safety Codes of Practice.
[530]Section 34, Occupational Health and Safety Act 2004
PARTICULARS OF BREACH OF REGULATIONS
In respect of the Occupational Health and Safety Regulations 2007 (Part 3.1 - Manual Handling):
(f)Regulation 3.1.1 in failing to identify tasks involving hazardous manual handling.
(g)Regulation 3.1.2 in failing to eliminate the risk of hazardous manual handling.
(h)Regulation 3.1.2 in failing to reduce the risk associated with hazardous manual handling by:
(1) Altering the system of work;
(2) Using mechanical aids.
(i)Regulation 3.1.2(4) in failing to address the following factors when determining any measure to control any risk of musculoskeletal disorder (if any such determination was carried out[)]:
(1) Postures adopted;
(2) Movements undertaken;
(3) Forces exerted;
(4) The duration and frequency of the tasks.”
583 I repeat the observations I made previously.
(c) Damages
584 Even if causation could be established (and I am not satisfied that it could), there are also difficulties about the quantification of damages. A tortfeasor is only liable for the damage he/she has caused. There is conflict in the medical evidence regarding the nature of and circumstances of injury – whether there was a discrete episode, or whether YB’s constitutional, underlying degenerative condition was accelerated over time because of the combination of her susceptibility to such injury on one hand and the nature of the work on the other. Dr Griffiths, who saw YB twice at the request of the insurer, concluded that YB had developed a Regional Pain Syndrome, the 2005 symptoms of which marked its commencement.[531] He was unaware of any particular incident that led to YB stopping work in 2008:
“… just the symptoms had reached a stage where she was having difficulty coping.”[532]
[531]T422-T423
[532]T423
585 Associate Professor Carne was unclear about a diagnosis, even after viewing MRI scans, and he was unsure about cause or prognosis.
586 Dr Karna, who reported initially to the insurer, was of the view that YB had a susceptibility to injury. He thought it likely that an acute aggravation had occurred in a single episode on the background of YB’s underlying degenerative condition:
“… the notion of her developing an acute problem, I think, is – even though she was working two days a week, is quite feasible. It suggests that – and the usual clinical scenario is the discs are degenerate or slightly worn and therefore more vulnerable to the effects of injury, and that injury can be a single episode. That incident that makes it pop out can be a single episode. The fact that it was worn and therefore more vulnerable to injury is generally a gradual process issue.”[533]
[533]T397
587 Dr Karna was also of the view that YB was suffering from a Pain Syndrome.[534]
[534]T404
588 On the question of where the critical incident may have occurred, the exchange between Dr Karna and me is worth repeating here:
Q: “Can you assume for the sake of this question that the worker is doing work for two employers, employer A, employer B, doing pretty much the same sort of work. Without any further information, would you be able to tell me which of employer A or employer B, assuming they both are broccoli farms, was the place where the worker was injured?---
A: My impression that this – a disc prolapse is a very acute incident chronologically. It happens at a defined point in time. It is excruciating pain, you get severe neck pain and pain radiating down the arm, depending upon which nerve is being jammed up by that disc that’s prolapsed out. So the answer to that would be whichever employer she was at when the acute exacerbation or when the acute worsening occurred to the point that she required narcotic medication. It could be either. It would be historically based rather than – there’s no science to it. It is when she said she got the pain. It could have happened at that moment. So if she was with employer A, then it was employer A that provided the straw that broke the camel’s back. If it was employer B, it is employer B. So the acute incident you can chronologically link to the history, when and where she was when that acute worsening happened. The fact that she had [a] vulnerable disc causing neck discomfort, that is more nebulous. As you say, that can be constitutional, that could be car accident related, that could be the effects of her working with employer A and employer B over a period of time in work which we know does biomechanically stress the neck. So the wear and tear – if you had asked me that question, who caused the wear and tear, that is impossible to answer, but if you’re asking me what was the cause of the acute prolapse that was so bad that she required narcotic medication and seemingly has had problems ever since, that would be the employer she was at when that acute worsening happened and the history was of that, if you go back to my first report.”[535]
[535]T405-T406
589 Dr Karna agreed it comes down to YB’s word.[536]
[536]T406
590 Although it would appear the medical opinion is unanimous about YB’s underlying degenerative condition and the contribution made generally over a long period of time by the nature of her work, whether it was one incident that tipped YB into a state of being unable to work or the progression of symptoms to that point depends on what I make of YB’s evidence. Either way, the plaintiffs bear the burden of proving the damage, if any, that the defendant caused. I am not satisfied on the balance of probabilities that they have done that.
591 Also, contrary to YB’s assertion that she intended to assume full-time employment in the future, I am unable to find on the balance of probabilities that this was so. She evinced an intention to seek a Disability Support Pension in 2006 before she ever set foot on the defendant’s farm, and given the nature of her underlying condition, it is inherently unlikely that YB, an unskilled labourer, would be capable of performing full-time work in some unspecified field of employment even if she wanted to.
592 I shall not refer to the proceedings based on breach of statutory duty other than to say I repeat the observations I have made above.
593 As to the case in occupiers’ liability, there was nothing that the defendant did or failed to do in relation to the state of the premises that was a cause of YB’s injury, loss and damage. She did not fall into a planting hole or trip on any part of the premises. The case is based on the activities conducted at the premises as pleaded above, not on any defect inherent in the premises.
The contribution proceedings
594 In the contribution proceedings, there are problems in arriving at a figure that represents that part of the payment that appears to have been excessive.
595 In any event, contribution is only payable if the alleged tortfeasor has shared in the responsibility for the damage, and then only in such an amount as is just and equitable having regard to the extent of that person’s responsibility for the damage.[537] I am not satisfied on the balance of probabilities that the defendant has shared in the responsibility of the damage for the reasons articulated earlier.
[537]Section 24(2), Wrongs Act 1958
596 Even if the defendant had shared in the responsibility for YB’s injury, loss and damage, it was not the sole contributor. It is clear that YB’s employers, Spark and/or Turkkan, owed YB a non-delegable duty of care. That duty cannot be delegated to God, as Mr Turkkan would have it, when he testified that after delivering the workers to the farm: “[w]e just pray nothing bad to not happen”.[538] YB confided in Mrs Turkkan that she was experiencing symptoms. Mrs Turkkan accompanied YB to a medical appointment. In my judgment, YB’s employers, Spark and/or Turkkan, must take a large share in the responsibility for YB’s damage.
[538]T449
597 YB’s symptoms commenced as early as 2005, and continued thereafter. I have been unable to find as fact that YB worked solely for the defendant in the relevant period 2007 to 2008. And there is evidence that in the period 2005 to 2008, YB worked at a number of different places. Apart from lay evidence about the system of work at Tony and Rosa’s farm, the plaintiffs failed to call any expert evidence about the systems of work at these other farms, and whether the other farms had established systems of work any different to the system at the defendant’s farm. These other farmers were not joined in the proceedings. There is no expert evidence to enable any comparison to be made about the respective systems of work and which, if any, system(s) exposed YB to any greater or lesser risk of injury. Without that sort of evidence, I am unable to make a determination that is just and equitable having regard to the extent of each such farmer’s responsibility for the damage. Any such assessment would not be based soundly on evidence.
Conclusion and Orders
Recovery proceedings under Section 138
598 In view of my findings above, the plaintiffs have failed to establish on the balance of probabilities that YB’s injury was caused under circumstances creating a liability in the defendant to pay damages in respect of that injury. The plaintiffs’ claim must be dismissed.
Contribution proceedings
599 In view of my findings above, the second plaintiff has failed to establish that the defendant should contribute to the settlement sum. The contribution proceedings must be dismissed.
600 I shall hear the parties on the question of costs.
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