VWA v McDermott Australia Pty Ltd
[2024] VCC 1782
•25 November 2024
You y
IN THE COUNTY COURT OF VICTORIA
AT MELBOURNE
COMMON LAW DIVISION
Revised
Not Restricted
Suitable for PublicationGENERAL LIST Case No. CI-20-02183
VICTORIAN WORKCOVER AUTHORITY Plaintiff v McDERMOTT AUSTRALIA PTY LTD
(ACN 002 736 352)Defendant ---
JUDGE:
HER HONOUR JUDGE MAGEE
WHERE HELD:
Melbourne
DATE OF HEARING:
14, 15, 18, 19 and 20 March 2024
DATE OF JUDGMENT:
25 November 2024
CASE MAY BE CITED AS:
VWA v McDermott Australia Pty Ltd
MEDIUM NEUTRAL CITATION:
[2024] VCC 1782
REASONS FOR JUDGMENT
---Subject:ACCIDENT COMPENSATION – RECOVERY PROCEEDING
Catchwords: Workplace accident – indemnity under s369 of the Workplace Injury Rehabilitation and Compensation Act 2013 – whether defendant had adequate system of supervision – whether absence of a system of supervision was a cause of the worker’s injury – assessment of Factor X – apportionment of damages – assessment of Factor A
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s369.
Cases Cited: Victorian WorkCover Authority v Spotless Facility Services Pty Ltd [2024] VSCA 237; Griffiths v Kerkemeyer (1977) 139 CLR 161; Purkess v Crittenden [1965] 114 CLR 164; Malec v Hutton (1990) 169 CLR 638; Trtovac v Total Mix Pty Ltd & Anor [2022] VSC 149; Acir v Frosster Pty Ltd [2009] VSC 454; Hettiarachchi v Transport Accident Commission [2023] VSCA 27; Jones v Dunkel (1959) 101 CLR 298; Zealley v Liquorland (Aust) Pty Ltd & Anor [2015] VSC 62; Papadopoulos v MC Labour Hire Services Pty Ltd and Anor (No 4) (2009) 24 VR 665; Ford v Elmore Haulage Pty Ltd and Anor; VWA v Snowy Monaro [2019] VSC 58; Kocis v S E Dickens Pty Ltd (1998) 3 VR 408; Podrebersek v Australian Iron andSteel Pty Limited (1985) 59 ALR 529; Kondis v State Transport Authority (1984) 154 CLR 672; Commonwealth v Introvigne (1982) 150 CLR 258
Judgment: Judgment for the plaintiff in the sum of $136,650
---
APPEARANCES:
Counsel Solicitors For the Plaintiff Mr A T Broadfoot KC with
Mr C G K MadderWisewould Mahony For the Defendant Mr D McWilliams with
Mr A KleimanHWL Ebsworth Lawyers Table of Contents
Introduction
The hearing
The worker’s pre-existing medical issues
The system of work
The incident
The worker’s reporting of the incident and post-injury treatment
The worker’s post-incident employment, restrictions and treatment
Findings on the worker’s reliability and credibility
Captain Vikrant Chaudhri, Master Mariner
The Oral Medical Evidence
Dr Joseph Slesenger, Occupational Physician
Mr Ash Chehata, Orthopaedic Surgeon
Mr Michael Dooley, Orthopaedic SurgeonThe VWA’s tendered medical evidence.
Treating practitioners
Luke Surkitt, Physiotherapist
Mr Michael Johnson, Orthopaedic Surgeon
Dr Paul Verrills, Pain SpecialistPlaintiff’s Medico Legal reports
Dr P D Clark
Dr Graeme Doig, General Orthopaedic and Trauma Surgeon
Medical Panel
Dr Gary Davison, Occupational PhysicianMcDermott’s tendered medical evidence
Dr Malcolm Brown, Occupational Physician
Dr Ian Dickinson, Orthopaedic SurgeonFactor X
The system of work
Should an adverse inference be drawn against the Defendant regarding Mr Button?
The VWA’s submissions on Factor X
McDermott’s submissions on Factor XFindings on Factor X
Was the worker negligent?
What is the appropriate determination of Factor X under Section 369?Factor A
The VWA’s submissions on Factor A
McDermott’s submissions on Factor AFindings of Factor A
Nature of the injury
What was the extent of the worker’s pre-existing condition?
Would the worker be in a similar position absent the subject incident?Factor A assessment.
Pain and suffering damages
Past economic loss
Past medical and like expenses
Future medical and like expensesPast Griffiths v Kerkemeyer damages
Future Griffiths v Kerkemeyer damages
Vicissitudes
Summary Factor AFuture Griffiths v Kerkemeyer damages
Conclusion
HER HONOUR:
Introduction
1This proceeding is an action brought by the Victorian WorkCover Authority (“the VWA”) against the defendant, McDermott Australia Pty Ltd (“McDermott”).
2The VWA brings its claim under s369 of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”), in respect of payments of compensation made to or on behalf of Mr Syme (‘the worker”) who was injured on 3 April 2011 while he was working on a barge in the Bass Strait (“the incident”).
3McDermott was a specialist offshore engineering and construction contractor.
4The worker was employed as a rigger by Brunel Technical Services Pty Ltd (“Brunel”), a labour hire organisation. He began employment with Brunel in November 2010.
5McDermott had been engaged by Esso Australia Resources Pty Ltd to conduct engineering and construction work as part of the Kipper Tuna Turram project which involved the building of a new offshore oil platform (“the project”). The barge was part of the project.
6In July 2010, McDermott entered into a services agreement with Brunel by which Brunel agreed to provide “experienced, qualified and skilled labour on a hire basis” and to provide logistics and management services in respect of the labour.[1]
[1]Plaintiff's Exhibit P1: Plaintiff’s Court Book (“PCB”) 229-296
7The worker is now aged 67, having been born in 1957. At the time of the incident, he was aged 53.
8After the incident, the worker made a WorkCover claim against Brunel which was accepted. He received payments of compensation pursuant to the Act.
9In separate proceedings, the worker claimed pain and suffering damages from Brunel and McDermott. Those proceedings, including contribution proceedings between Brunel and McDermott, settled in early 2023.
10The VWA allege that the injury sustained by the worker occurred in circumstances which created a legal liability in McDermott to pay damages.
11Section 369(1) of the Act provides:
“Where an injury or a death 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 in respect of the injury or death or that would have created such a liability if the injury or death had been caused in Victoria, the Authority, self-insurer or employer is entitled to be indemnified by the third party in accordance with this section.”
12Section 369(3) of the Act provides the method for calculating the amount of indemnity where a legal liability to pay damages by a third party is established. It provides:
“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 or death; 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—
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 or death;
B is the amount recovered or recoverable by the Authority or self-insurer under section 367 from the Transport Accident Commission otherwise than under a settlement;
C is the amount paid by the third party in respect of the injury or death to the worker or the dependants of the worker under any settlement of, or judgment in, an action by the worker or dependants of the worker against the third party;
X is the extent, expressed as a percentage, whereby the third party’s act, default or negligence caused or contributed to the injury or death.”
13Factor B is not relevant to this application. Factor C in this case is $45,000.
14In the present proceeding, the issues are –
(a) Factor A – the notional assessment of common law damages absent statutory restrictions;
(b) Factor X – extent of liability, if any.
15In this case, it is convenient to deal with Factor X first and then Factor A.
16The compensation paid by the VWA up to 9 March 2024 was $745,762.18.[2]
[2]Plaintiff Exhibit P3
17The legal principles in recovery cases are well known and were not in dispute. They are succinctly set out in Victorian Workcover Authority v Spotless Facility Services Pty Ltd.[3] I adopt those principles and will not repeat them here.
[3] [2024] VSC 237
The hearing
18The VWA was represented by Mr Andrew Broadfoot KC and Mr Clive Madder of Counsel. McDermott was represented by Mr Dugald McWilliams and Mr Angus Kleiman of Counsel.
19VWA called the worker; Captain Vikrant Chaudhri, Master Mariner; Dr Joseph Slesenger; Occupational Physician, and Mr Ash Chehata; Orthopaedic Surgeon, to give evidence. They were all cross-examined by McDermott.
20McDermott called Mr Michael Dooley, Orthopaedic Surgeon. He was cross-examined by the VWA.
21The VWA tendered various documents including contracts, medical assessments, claim reports, treater reports, medico-legal reports, task risk assessments, incident reports, induction records, specification documents, safety committee meeting minutes, correspondence, safety management system extracts, occupational therapy reports, a Certificate of Opinion from a Medical Panel, and a summary of taxation returns.
22The VWA also handed up a summary of the medical evidence, a breakdown of Factor A figures and an extract of the Petroleum (Submerged Lands) (Management of Safety on Offshore Facilities) Regulations 1996 as aide memoires.
23McDermott tendered various documents which included correspondence, extracts of clinical records, an extract from the worker’s serious injury affidavit, claim documents, claim reports, medico-legal reports, induction records and sworn Answers to Interrogatories in the worker’s proceeding. McDermott also handed up an Outline of Submissions.
24I have considered all the tendered evidence, the oral evidence, the oral and written submissions of the parties and all documents handed up, but I shall only refer to the materials to the extent necessary to understand these reasons.
The worker’s pre-existing medical issues
25The worker commenced employment in the construction industry in the 1970s.[4] He was predominantly employed as a rigger and never had any difficulty finding such work.[5]
[4] Transcript (“T”) 40, Line (“L”) 18-19
[5] T40-41 – T46, L1-3
26He had back problems dating back to 1977 which he attributed to the heavy nature of his employment.[6] He had two major back operations performed by orthopaedic surgeon, Mr Richard Pease. In 1983, he underwent a laminectomy. He had a good outcome from the surgery and returned to work with no limits.[7] He suffered a further injury at work in 2000 and had a second laminectomy shortly afterwards.[8]
[6] T11-13
[7] T41, L10-11
[8] T43, L3-8
27The worker’s recovery from the second laminectomy was protracted. He attempted to return to work after surgery but struggled with the duties and ceased work.[9]
[9] T111, L25-31
28The worker lodged a common law claim for the injury sustained in 2000 which settled in 2007 for a considerable sum.[10] After settlement of this claim, he returned to work in the construction industry.
[10]The precise figure is unclear but it appears that the settlement was for $400,000 inclusive of costs – it has been assumed that the overall settlement was on the basis that the worker retained weekly payments of compensation and possibly retained an impairment benefit
29Additionally, the worker was involved in two transport accidents in the 1980s. The first caused a bleed on his brain which was not diagnosed for several years and caused issues with his speech.[11] In the second transport accident, the worker was knocked over by a car which aggravated his back injury.[12] Neither party tendered evidence as to the nature or extent of this injury.
[11] T110, L1-22
[12] T110, L23-25
30The parties accepted that the worker had a serious pre-existing back condition. However, there was a dispute regarding the worker’s condition in the period leading up to the incident.
31The worker was cross-examined on this point and gave what I find to be honest and frank evidence about the nature and extent of his pain and restrictions prior to the incident.
32The worker admitted that prior to the incident, he had ongoing symptoms including pain in his back and legs, a right calf twitch and difficulty sleeping.[13] He commenced taking Panadeine Forte in the 1980s and continued to take Panadeine Forte up to the date of the incident and beyond.
[13] T113, L1-31 and T114, L5-8 and L16-25
33The worker agreed that in 2007, as part of his WorkCover claim for the injury sustained in 2000, he requested funding for an upright vacuum cleaner due to ongoing back pain.[14] He also requested funding for an automatic garage door due to ongoing back pain in 2010.[15]
[14] T185, L8-21
[15] T182-182 and Defendant Exhibit D1: Defendant’s Court Book (“DCB”) 41
34The worker was conducting heavy rigging work at the time of the incident.
35The tenor of the worker’s evidence was that his back was “90 per cent good” whilst working for Brunel and his pain and restrictions worsened in the years following the incident in 2011.[16]
[16] T46, L30-31, T114, L1-4 and T186, L3-4
The system of work
36The worker gave evidence that there would be a toolbox meeting at the commencement of each shift. The toolbox meetings were usually attended by the Brunel supervisor (in this case, Shane Button), Brunel workers and a representative of McDermott who was often referred to as the “Superintendent”.
37At the toolbox meeting, the tasks to be performed would be discussed and any relevant Task Risk Assessments (“TRAs”) would be provided. During the trial, it was confirmed that a TRA is a document which sets out a list of procedures in a checklist type format.
38McDermott submitted that a specific TRA was prepared for stripping out the winch on the day of the incident; however, no such TRA was produced.
39The worker gave evidence that he had no recollection of seeing any TRA for the task on the day of the incident.
The incident
40The worker was the only witness called to give evidence about the incident.
41On 3 April 2011, he was working on the main deck on the barge. He and other Brunel employees were changing a winch cable which was described as “stripping out the winch”.
42The winch was attached to a crane on the upper mezzanine deck (“the upper deck”) of the barge. The upper deck was above the main deck of the barge.
43The set up was depicted in a photograph[17] which formed part of the report of Captain Vikrant Chaudhri and is reproduced here:
[17]Plaintiff Exhibit P4, PCB 1377. The provenance of this photograph is unknown but the parties agreed it was an accurate depiction of the barge
44As part of the process of stripping out the winch, the worker was required to manoeuvre a cable from the winch located on the upper deck above him. The cable was approximately three-quarters of an inch thick and approximately six metres long.[18] It was being fed from the upper deck to the main deck.
[18] T146, L24-27 – T147, L5
45There were three or four other riggers (one of whom was the Leading Hand, Mr Shane Button) on the main deck and two unnamed riggers on the upper deck.
46There were no representatives of McDermott involved in stripping out the winch.
47One of the riggers on the upper deck was operating the winch with a power lever and the other rigger was feeding the cable down to the worker below.
48The worker said he was standing roughly below the “No 4” depicted in the photograph. He said that he could not see the riggers above him, as he was standing underneath the upper deck with his back to the winch.[19]
[19] T66, L14-21; T73, L23-28
49The riggers on the main deck were receiving the cable from the worker and they were stacking it into a figure eight pattern on the floor of the deck.[20]
[20] T66, L6-11
50When the cable ended, one of the riggers on the upper deck dropped the end of it without warning. The remaining length of cable came down on top of the worker, landing across his back and shoulders . This was the incident which is the subject of this claim.
51The worker said it was common sense for a rigger to tie off the end of a cable and lower it down by rope (referred to as a messenger rope) but that the worker on the upper deck did not do so. He said any trained rigger would know this.[21]
[21]T135 L 12-20; T136 L 18-25
52The worker’s evidence on this point supported McDermott’s contention that the use of ropes to tie off the end of a cable so that it could be lowered down was common practice.
The worker’s reporting of the incident and post-injury treatment
53The worker said he “staggered” when the cable landed on him.[22] He was knocked off balance but did not fall to the floor. He did not feel any immediate pain after the incident but awoke later that night with numbness and a cold sensation in his left thigh.[23]
[22] T147, L13-22
[23] T79, L8-11
54The worker said that he attended the onboard doctor, Dr Dan Rainolds, on 4 April 2011 before he started his next shift, and was given Panadeine Forte.[24] He recalled returning to Dr Rainolds the following day (5 April 2011) and again being given more Panadeine Forte.[25] He said he continued to attend Dr Rainolds approximately twice a week over a period of several months to request more pain relief.[26]
[24] T79, L13-16; T88, L30; T89, L8-12
[25] T89, L18-23
[26] T90, L2-6
55The worker had given evidence that prior to the incident he had been taking Panadeine Forte for many years. He initially said he had been taking the medication consistently but then qualified this by saying he would take the medication If it was available,[27] and that he would take it if he was having a bad day. He said that he would restrict his intake of the medication on other days.[28] This evidence was not challenged. The worker was not asked whether he had his own supply of Panadeine Forte prior to attending Dr Rainolds.
[27]T115 L4-5
[28]T115 L29-31; T 116 L1
56The worker was cross-examined at length regarding his attendances upon Dr Rainolds. It was put to him that his recollection of when he attended and the dispensing of Panadeine Forte did not accord with Dr Rainolds’ clinical notes.
57The worker conceded his first attendance upon Dr Rainolds was more than thirteen years ago and his memory had not improved with time. Despite this concession, he maintained he attended in the morning of 4 April 2011 and not in the evening, as Dr Rainolds had recorded.[29]
[29] T149, L10-22
58The worker was also unshakeable in his evidence that he was given Panadeine Forte on 4 April 2011 and on an ongoing basis thereafter. He expressed what I found to be genuine surprise there was no apparent record of this.[30]
[30] T194, L13-20
59It was put to the worker that Dr Rainolds recorded on 5 April 2011 that he was “back to normal”.[31] Whilst the worker accepted, he was likely doing his normal duties at that time, he disputed he was physically back to normal.
[31] Defendant Exhibit D2: DCB 353
60The worker’s evidence was that when he returned onshore in the weeks following the incident, he reported the incident to his General Practitioner (“GP”), Dr Mohammed Mostofa.[32]
[32] T197, L10-14
61The worker was cross-examined about this. It was put to the worker that his first post-incident attendance upon Dr Mostofa was on 13 September 2011, five months after the incident, and that the notes for this attendance referred only to unrelated health conditions and made no reference to the incident. It was further put to the worker that he re-attended Dr Mostofa throughout September 2011 again for unrelated health issues and that the first reference to the incident in Dr Mostofa’s notes was not until 26 October 2011.[33]
[33] T201, L3-14; T202, L4-24; T203, L13-25; T208, L12-30
62The worker maintained he told Dr Mostofa about the incident before October 2011 but conceded he could not recall the exact date. He explained Dr Mostofa was aware of his ongoing back problems, as he was his longstanding GP. The worker said that when he attended Dr Mostofa for other health concerns, he would not necessarily mention his back.[34]
[34] T203, L24-30
The worker’s post-incident employment, restrictions and treatment
63In evidence-in-chief, the worker said that he continued working on the rig but ceased rigging duties shortly after the incident. He said that after the incident, he was limited to performing the role of a banksman,[35] which involved no physical work and required him to walk up and down the rig to ensure there were no obstacles in the way of cranes.[36] He said he continued in the banksman role until his contract with Brunel ceased in 2012.[37]
[35] T92, L1-2
[36] T91, L12-13
[37] T92, L3-6
64However, the worker’s evidence was contradictory. Elsewhere he said he continued to perform heavy, manual work after the incident in April 2011 and did not commence in the banksman role until late 2011.[38]
[38] T227, L5-11
65Whilst the precise nature of the worker’s duties in the immediate post-accident period is unclear, it was not disputed that the worker continued to work for Brunel until 2012 when his contract ended.
66After 2012, he worked for a variety of employers as a rigger/crane driver. He worked casually, on an intermittent basis, until he ceased all work in 2017 due to back pain. At the time he ceased work, he was aged 60.
67Since the incident, the worker has had injections and radio ablations which he said provided limited relief.[39] He has also undergone physiotherapy treatment. It has been suggested he may be a candidate for further spinal surgery, but he was reluctant to undergo further surgery due to concerns about poor recovery given he had already had two spinal operations.[40]
[39] T97, L1-4
[40] T97, L8-10
68The worker has continued to experience a variety of restrictions upon his day-to-day activities. He struggles with sitting and driving, as well as household and domestic chores. He takes four to eight Panadeine Forte each day.[41] He has unsuccessfully trialled other pain-relief medications such as Lyrica and Endep since the incident.[42] He accepted that he has had difficulty sleeping since his first back injury but said he now drinks more alcohol to help him get to sleep. He said his pain worsens as the day goes on and he consumes six stubbies of beer each night to help him get to sleep.
[41] T97, L11-12; T99, L9
[42] T99, L4-5
69The worker gave evidence that if he did not take medication, he was limited to lying on the couch due to the severity of the pain in his lower back and legs.[43]
[43] T99, L15-20
70From approximately 2011 until 2023, the worker’s son spent several hours each fortnight in Summer/Spring and a few hours each month in Autumn/Winter maintaining the worker’s garden.[44]
[44] T100, L26-31 – T101, L11
71From 2015 until 2023, the worker’s son also assisted with vacuuming, washing and general household maintenance.[45] The worker estimated that his son spent approximately three hours a week assisting with chores. The worker’s son relocated to Perth in 2023, so he no longer assisted the worker.[46]
[45] T103, L13-20
[46] T100, L18-22
72The worker used to engage in four-wheel driving around Woods Point in the Victorian High Country but had to stop doing so after the incident because of his pain.[47]
[47] T102, L23-31 – T103, L1-10
Findings on the worker’s reliability and credibility
73The worker was an impressive witness. He was straightforward, honest and stoic. He returned to work after major spinal surgeries. He made concessions when appropriate – particularly in respect of his memory and the impact of the passing of time on its accuracy.
74Whilst he was called by the VWA, he was not an advocate for either party, as he was not a party to the proceeding and had “no skin in the game”.
75I find that his failure to recall particular details, such as precisely when he started work as banksman after the incident, was merely the result of the passage of time.
76I find that he was doing his best to be as accurate as possible - especially when asked to recall details of matters which occurred thirteen years ago.
77Overall, I accept his evidence.
Captain Vikrant Chaudhri, Master Mariner
78Captain Chaudri provided an expert report at the request of the VWA, gave oral evidence and was cross-examined. In evidence-in-chief, he adopted his report dated 24 March 2023 with annexures.[48]
[48]Plaintiff Exhibit P4: PCB 1369-1400
79In cross-examination, he confirmed that he had never worked on a barge. His area of expertise was that of a Master Mariner.
80As discussed above, no specific TRA for stripping out the winch on the day of the incident was produced. As such, Captain Chaudhri could not comment on the adequacy of any TRA relating to the specific task in question. Captain Chaudhri instead relied on a number of other TRAs.
81In general terms, Captain Chaudhri’s evidence was that TRAs set out a list of procedures which have to be stepped through in a checklist type format and that every step must be followed to ensure that no procedures are overlooked.
82When it came to considering the system of work relating to stripping out the winch, Captain Chaudri agreed that any seafarer, rigger or layman would know to tie off the loose end of a wire using a messenger rope, as it was a matter of commonsense.[49] He also said that despite it being a matter of commonsense, every step in a TRA should be followed.
[49]T254, L22-27
83It was his evidence that the responsibility for ensuring that a messenger rope was used when stripping out the winch was shared between the riggers, the supervisor and McDermott.[50] It was clear from his evidence that the supervisor he referred to was Mr Button (employed by Brunel).
[50] T256, L14-22
84Captain Chaudri often did not provide direct answers in cross-examination. In many instances he reframed the question before answering.
85I find that Captain Chaudri’s manner of answering questions had the unfortunate effect of skewing his answers heavily in favour of the VWA. It was not at all clear whether he had adopted the role of an advocate or whether he misconceived his role of an expert witness.
86Given these issues, I have approached Captain Chaudri’s evidence with caution.
The Oral Medical Evidence
87Three medico-legal witnesses, Dr Slesenger, Mr Chehata and Mr Dooley gave evidence at the hearing.
Dr Joseph Slesenger, Occupational Physician
88Dr Slesenger adopted his two reports dated 10 December 2020[51] and 17 December 2020. The reports were commissioned to assess the worker’s statutory entitlements.[52] The reports were essentially the same, with some formatting differences relating to the header and footnotes.
[51] Plaintiff Exhibit P18
[52] Plaintiff Exhibit P19: PCB 1521-1535
89Dr Slesenger diagnosed a mechanical low-back injury which had aggravated the worker’s pre-existing degenerative disease.
90Dr Slesenger observed that the worker sat with a flexed posture and walked with a stooped and shuffling gait. Clinical examination of the lumbosacral spine revealed flattening of the lumbar lordosis, mild tenderness to palpation and limited flexion, extension and rotation. Dr Slesenger did not say whether these findings had any clinical significance.
91Dr Slesenger was optimistic that with cautious review of medication and pain control, the worker was likely to see an improvement in his symptoms, to the point that he could consider returning to alternative duties; however, Dr Slesenger was cautious about such a return to work and did not put a timeframe on this.
92During cross-examination, Dr Slesenger confirmed his opinion that the worker’s condition was multifactorial and that the incident in 2011 was a minor contributing factor to his back condition at the time of his examination.[53]
[53] T332, L9-10
93Dr Slesenger recorded a history from the worker that after the incident in April 2011, he continued in his usual heavy duties until approximately September/October 2011 and only then did he change to the banksman role.
94Lead Counsel for McDermott put a number of hypothetical scenarios to Dr Slesenger to ascertain whether they would result in any material change to his opinions.
95The scenarios were:
· After the incident on 3 April 2011, the worker attended the onboard doctor on 4 April 2011, who recorded complaints of pain and gave the worker painkillers. Dr Slesenger said this scenario supported the version of events given by the worker;
· On 5 April 2011, the worker re-attended the onboard doctor, and the notes recorded he was back to normal and thereafter, there was no further record of the onboard doctor dispensing pain-relief medication. Dr Slesenger said this would reinforce his opinion that the event in April 2011 was only a minor event;[54]
· After the incident in 2011, the worker remained in his pre-injury role, carrying out heavy manual work until approximately October 2011, at which time he commenced in the banksman role. Dr Slesenger accepted it was a reasonable conclusion that if someone was performing heavy manual work and suffered injury to their back but regardless continued in such a heavy role, they were at risk of further aggravating or injuring their spine; and
· After the initial attendances upon the onboard doctor, there were no further complaints of back pain in the worker’s medical history until some six months later. Dr Slesenger accepted if the worker suffered injury in April 2011 but then returned to heavy manual work, only to then complain of a significant increase in pain in October 2011, this would again reinforce his opinion that the incident in April 2011 was only a minor contributing factor to his condition, whilst the ongoing, heavy manual work in the interim was likely to be a “major factor”.[55]
[54] T336, L24-31
[55] T348, L7-20
96Lead Counsel for McDermott also asked Dr Slesenger to comment on a number of opinions within the report of Mr Dooley (discussed below), including Mr Dooley’s opinion that the causes of the worker’s back pain were multifactorial, and that the main cause of his symptoms was the natural evolution of underlying degenerative disc changes.
97Dr Slesenger agreed the causes were multifactorial but maintained that prior to working on the barge, the worker had a mild intermittent impairment which then significantly deteriorated in 2011. On this basis, Dr Slesenger considered the main cause of the worker’s pain was more likely to be the heavy manual duties whilst working for Brunel, rather than the natural evolution of the disc changes or the specific incident in April 2011.[56] This opinion supports a course of work claim rather than the specific incident which is the subject of this claim.
[56] T351, L21-31 – T352
98Lead Counsel for McDermott also put to Dr Slesenger Mr Dooley’s opinion that the worker would have more than likely been forced to cease work in 2017, even if the incident had not taken place. Dr Slesenger responded that this was a “really difficult case to assess”.[57] He noted that the worker had two previous laminectomies and had returned to heavy manual work which was potentially right at the limit of his capacity. Dr Slesenger reiterated his opinion that heavy work likely advanced the degeneration within the worker’s spine, and said it was difficult to quantify such acceleration.[58]
[57] T353, L11-12
[58] T353 – T354, L1-9
99Dr Slesenger confirmed he was aware that after ceasing on the barge, the worker undertook shutdown work. He confirmed the worker had experienced a gradual deterioration in his spine whilst carrying out such work but that this work was casual and intermittent and did allow for some relief in between periods of work.[59]
[59] T355, L4-7
Mr Ash Chehata, Orthopaedic Surgeon
100Mr Chehata examined the worker on 14 June 2022 for medico-legal purposes at the request of the worker’s solicitors in his damages claim.[60]
[60] T359, L26-27
101Mr Chehata confirmed that the worker had a complicated lower lumbar spine history. He was told about the previous surgeries and the worker’s return to work. Dr Chehata noted that prior to commencing with Brunel, the worker underwent and passed a rigorous medical examination. The worker reported at the time he commenced with Brunel, he was completely normal and able to perform lifting as required, despite his earlier back problems.
102Regarding the incident in April 2011, Mr Chehata noted that the worker reported a feeling of cold and reduced sensation down the left leg on the night of the incident. He noted that the worker continued to work on the barge and managed his back and leg symptoms with Panadeine Forte.
103Mr Chehata recorded that the worker experienced a further episode of severe pain in October 2011 and was referred for further imaging and review by a surgeon. The worker continued working on light duties until his contract with the employer ended in 2012. Mr Chehata was told that the worker then worked as a casual rigger/crane driver for a number of employers until he ceased work in 2017 after his condition significantly worsened.
104Mr Chehata recorded that since the incident in 2011, the worker had undergone treatment including a number of injections and radiofrequency ablations to limited effect.
105The worker complained of generalised, constant leg and back pain. His tolerance for standing was limited to 30 minutes, walking was limited to 3 kilometres and sitting was limited to 20 minutes. He reported taking six Panadeine Forte tablets each day and that he had disrupted sleep. Whilst he could perform activities of daily living, including cooking, dishwashing, and laundry, he no longer mowed his lawns or undertook hobbies such as four-wheel driving and fishing.
106Mr Chehata observed the worker walked slowly with a flexed spine. Mr Chehata considered the workplace incident in April 2011 had aggravated the pre-existing spondylosis.
107Mr Chehata confirmed the worker had continued working for a number of years after the incident in intermittent casual work, rather than in full-time work. On this basis, Mr Chehata considered the incident in 2011 was a significant contributing factor to the worker ultimately ceasing work in 2017. Mr Chehata considered the worker’s prognosis was guarded.
108Lead Counsel for McDermott put a number of factors to Mr Chehata to test his opinion that the incident in 2011 was a significant contributing factor to the worker ceasing employment in 2017. These factors included the worker’s reliance on Panadeine Forte from the 1980s onwards, his request for installation of an automatic garage door in the months leading up to the incident in April 2011, the delay in lodging his WorkCover claim in 2011, as well as his subsequent employment.
109Mr Chehata accepted that the worker’s condition was complicated. Mr Chehata accepted the worker had a compromised spine due to the earlier surgeries and this made him a “sitting duck” for further back problems.[61]
[61] T370
110Mr Chehata maintained that the incident in 2011 was a cause of the worker ultimately ceasing employment.[62] Mr Chehata considered this was consistent with the mechanism of injury (being the dropping of the cable, causing a jolting of the worker’s spine)[63] as well as the progression of the worker’s symptoms.
[62] T372, L1-29
[63] T3367, L1-7
111Mr Chehata accepted his conclusion was potentially inconsistent with the worker continuing to work until 2017.[64] Mr Chehata commented that normally he would see workers who ceased work immediately or shortly after the relevant incident, which was not the case for the worker; however, he maintained his opinion that the incident in 2011 was a cause of the worker ultimately ceasing work.
[64] T373, L1-7
112Lead Counsel for McDermott put Mr Dooley’s opinions to Mr Chehata. Mr Chehata agreed that the cause of the worker’s back and lower limb pain was “multifactorial”.[65] He agreed that these factors included the natural evolution of underlying degenerative disc change and the prior injuries resulting in surgeries.
[65] T374, L19-27
113Mr Chehata did not, however, accept that the incident in April 2011 was a “minor contributor” in the overall scale of things. In this regard, Mr Chehata said that one could not be clear about apportionment between the various relevant factors.[66]
[66] T375, L28-31 – T375, L1-13
114Mr Chehata agreed that as time progressed, the worker would have experienced ongoing degeneration of his spine. He accepted that it was likely that the worker would have been forced to cease work at some point in time but said he could not establish whether the worker would have been forced to cease work in 2017 even if the incident had not occurred.[67]
[67] T376, L9-21
115In re-examination, Mr Chehata agreed that for persons with a compromised spine, a very minor event (such as a sneeze) could aggravate their condition.[68]
[68] T377, L12-31
116Mr Chehata also said it was not uncommon for manual workers to undergo an operation and consider themselves “brand new” and return to heavy work, only to then experience another incident, big or small, which aggravated their condition.[69]
[69] T377, L29-31 – T378, L1-7
Mr Michael Dooley, Orthopaedic Surgeon
117McDermott called Mr Dooley. Mr Dooley examined the worker on 4 August 2021, at the request of the solicitors for the employer in the context of the worker’s damages proceedings.
118Mr Dooley maintained the opinions expressed in his report dated 25 August 2021,[70] subject to one clarification which was that the worker did not note any pain immediately after the incident, rather, he was awoken by pain later that evening.[71] Mr Dooley did not say whether he attached any clinical significance to this clarification.
[70] Defendant Exhibit D7: DCB 5-10
[71] T422, L12-18
119Mr Dooley recorded that after the incident, the worker experienced a numb sensation in his left thigh and back but continued working. He recorded that in November 2011, the worker was unable to get out of bed due to severe pain but continued with the employer until 2012, after which he worked as a rigger with another employer until 2017 when he ceased work entirely after his back pain became very severe.
120Mr Dooley observed that the worker walked slowly with a mildly hunched over position. There was flattening of the normal lumbar lordosis. He recorded restrictions in flexion of the spine and straight leg raising but did not comment on the clinical significance of such findings.
121Mr Dooley diagnosed the worker with age-related degenerative disc change involving the mid to low lumbar spine regions.
122Mr Dooley accepted that in patients of the worker’s age with longstanding symptomatic degenerative disc disease, aggravation of such conditions could occur spontaneously or with minor trauma. He accepted the incident may have resulted in a soft-tissue injury to the lumbar spine which also involved some aggravation of the pre-existing degenerative disc change.
123Mr Dooley opined that the causes of the worker’s ongoing low back and lower limb pain were “multifactorial”. It was his opinion that the main cause of the worker’s ongoing symptoms were a combination of the natural evolution of the pre-existing degenerative change, the previous injuries and resultant surgeries and the incident in 2011. Mr Dooley opined that the incident in 2011 was a minor contributor to the worker’s presentation.
124Mr Dooley also opined that it was probable that as a consequence of the natural evolution of underlying degenerative change, the congenital narrowing of the worker’s spinal canal and the worker’s previous injuries, that he would not have been able to carry out construction work beyond the age of 65 (which would have been in 2022).
125Mr Dooley concluded the worker had no capacity for pre-injury work and would only have physical capacity for some light physical or clerical type work.
126In cross-examination, Mr Dooley agreed that the ability to continue working for a person who had pre-existing back issues would depend on a variety of factors, including use of painkillers and the type and regularity of such work.[72]
[72] T423, L22-31
127In evidence, Mr Dooley also clarified his opinion regarding the worker’s cessation of employment. Mr Dooley explained that when he opined that the worker would have ceased working regardless of the incident in April 2011, he was not suggesting that cessation would definitely have occurred in 2017 (being the date the worker did cease all work). Rather, he said he was suggesting simply that the worker would have had to cease heavy manual labour at some time before age 65.[73]
[73] T424, L12-23
128Mr Dooley was not re-examined.
The VWA’s tendered medical evidence.
Treating practitioners
Luke Surkitt, Physiotherapist
129The VWA tendered two letters from Mr Luke Surkitt, dated 15 September 2017 and 8 November 2017.[74] The first letter was addressed to treating surgeon, Mr Michael Johnson. Mr Surkitt confirmed he had previously treated the worker. The worker was complaining of constant pain in the left thoracic/lumbar region and left anterior thigh, resulting in difficulty walking, lifting and bending. He was taking four to six Panadeine Forte daily. Upon examination, Mr Surkitt recorded markedly restricted lumbar spine movement. He recommended gentle physiotherapy. Mr Surkitt confirmed the worker had ceased work in March 2017 and was certified as unfit for employment. Mr Surkitt commented that his capacity would need to improve significantly in order for him to return to light work.
[74] Plaintiff’s Exhibit P25: PCB 1450-1451; Plaintiff’s Exhibit P26: PCB 1452-1453
130The second letter was addressed to CGU VIC Workers Compensation. Mr Surkitt answered a number of questions regarding the worker’s condition. He recorded that the worker suffered an exacerbation of pre-existing degeneration of his lumbosacral spine whilst working for Brunel. The worker presented with restricted spinal movement and low functional capacity. There had been mild improvement in his movement and walking capacity and no significant change to his symptoms. Mr Surkitt considered that the worker did not have a sustainable work capacity and suggested that a return to reduced hours and light work could be considered in three months.
Mr Michael Johnson, Orthopaedic Surgeon
131The VWA tendered six letters from Mr Michael Johnson, dated 12 December 2011,[75] 26 March 2017,[76] 13 April 2017,[77] 9 July 2017,[78] 5 September 2017[79] and 5 September 2017,[80] and two reports, dated 11 December 2017[81] and 2 September 2018.[82]
[75] Plaintiff’s Exhibit P27: PCB 1418-1419
[76] Plaintiff’s Exhibit P28: PCB 1420
[77] Plaintiff’s Exhibit P29, PCB 1421
[78] Plaintiff’s Exhibit P30: PCB 1422
[79] Plaintiff’s Exhibit P31: PCB 1423
[80] Plaintiff’s Exhibit P32: PCB 1424
[81] Plaintiff’s Exhibit P33: PCB 1429-1431
[82] Plaintiff’s Exhibit P34: PCB 1434-1435
132Mr Johnson sent a number of letters to Dr Mostofa in which he set out the history he was given regarding the surgeries and the incident in 2011. The worker was referred to him after a severe bout of back pain in October 2011. Mr Johnson diagnosed an exacerbation of pre-existing spinal stenosis. Mr Johnson reviewed a CT scan which showed evidence of a congenitally narrow spinal canal and previous lumbar decompression, as well as multi-level degenerative change and canal stenosis, particularly between L3 and L5. Mr Johnson noted the worker intended to return to normal duties. Mr Johnson commented it was likely that the worker’s symptoms would worsen and that he may need further surgery.
133Mr Johnson confirmed that the worker ceased employment in early 2017. He had consistently complained of low-back pain radiating into both legs, as well as cramping in the calves and difficulty sitting and walking. Mr Johnson noted that the movement of the worker’s thoracolumbar spine was restricted.
134Mr Johnson reviewed updated imaging in 2017 which he said revealed multi-level degeneration without intersegmental instability, evidence of the earlier surgery at L4-5 and L5-S1, persisting spinal stenosis at L4-5 and right-sided disc prolapse with impingement of the S1 nerve root.
135In a report addressed to the worker’s solicitors in his damages proceeding dated 11 December 2017, Mr Johnson confirmed his opinion that the worker’s ongoing pain was the result of lower lumbar nerve root impingement, secondary to spinal stenosis and disc prolapse.
136Mr Johnson opined that the worker’s symptoms had significantly deteriorated since the workplace incident in 2011. Conservative treatment in the form of injections and physiotherapy provided some relief. The worker continued to require moderate amounts of Panadeine Forte. Mr Johnson considered that the only way the worker was likely to experience symptomatic benefit was to have further decompression surgery. Mr Johnson noted that the worker was reluctant to undergo further surgery.
137In a report addressed to “ACCS” dated 2 September 2018, Mr Johnson commented that the worker was very restricted in what he could do and that he was considering undergoing a further decompression surgery. In contrast to the optimistic comment in his December 2017 report, Mr Johnson reported, regardless of the outcome of any further surgery, the worker’s back pain would likely persist which made it difficult to assess his work capacity.
Dr Paul Verrills, Pain Specialist
138The VWA tendered three letters from Dr Paul Verrills of Metro Pain Group dated 10 May 2019,[83] 9 January 2020[84] and 1 June 2021.[85]
[83] Plaintiff’s Exhibit P40: PCB 1490-1492
[84] Plaintiff’s Exhibit P41: PCB 1493
[85] Plaintiff’s Exhibit P42: PCB 1512
139Dr Verrills recorded that the worker complained of constant aching pain down the left side of his lower back, averaging 3/10 and going up to 6/10, and a dull ache in his anterior thigh with intermittent numbness, which was worse with bending, walking and sitting.
140On clinical examination, the worker had restricted movement of his lumbar spine and marked tenderness over the left L4-5 and L5-S1 posterior spinal facet joints.
141Dr Verrills performed branch blocks and a radiofrequency neurotomy. Dr Verrills noted initially there had been an excellent response to the neurotomy but over time, the worker’s pain returned.
142Dr Verrills diagnosed the worker with a mixture of somatic and inflammatory type lower back pain with the primary nociceptive driver being the L4-5 and L5-S1 facet joints.
Plaintiff’s Medico Legal reports
Dr P D Clark
143Dr Clark’s full name, his qualifications and his area of speciality are not mentioned in the report. Neither party addressed the Court on these matters.
144The VWA tendered a report prepared by Dr P D Clark dated 7 February 2019, addressed to the worker’s solicitors in his damages claim.[86] Dr Clark examined the worker on 6 February 2019.
[86] Plaintiff’s Exhibit P35: PCB 1543-1546
145Dr Clark diagnosed chronic mechanical back and left leg pain consistent with an aggravation of the worker’s past degenerative spinal condition. Dr Clark considered the incident in 2011 was a significant contributing factor to the aggravation. Dr Clark commented that further spinal surgery had been proposed and this was reasonable, and this further operation would determine the worker’s prognosis. He considered that the worker had no capacity for work.
Dr Graeme Doig, General Orthopaedic and Trauma Surgeon
146The VWA tendered a report from Dr Doig dated 7 July 2017 addressed to CGU Workers Compensation (Vic) Limited.[87]
[87]Plaintiff’s Exhibit P36: PCB 1570-1574
147Dr Doig took a history regarding the earlier surgeries and further injury in 2011. Dr Doig noted that the worker’s condition deteriorated after the incident.
148It was his opinion that imaging revealed bilateral facet joint arthritis at the L4-5 and L5-S1 levels with possible impingement of the right-sided S1 nerve root.
149On clinical examination, Dr Doig noted that the worker walked slowly, with a flexed spine. Forward flexion was limited by back pain. There was fasciculation (muscle twitch) of the right calf.
150Dr Doig concluded that the worker was suffering from an aggravation/symptomatic exacerbation of his pre-existing degenerative lumbosacral spine. Dr Doig considered the effects of the aggravation were unlikely to resolve in the future and that the worker was incapacitated for his pre-injury work.
151He opined that the worker had a capacity for alternative employment, with appropriate restrictions on lifting, pushing, pulling, bending and twisting.
Medical Panel
152The VWA tendered the Reasons of the Medical Panel dated 30 September 2019.[88] The Medical Panel examined the worker on 2 September 2019, upon referral from the Magistrates’ Court after the worker disputed a decision to terminate his weekly payments.
[88] Plaintiff’s Exhibits P37 and P38: PCB 1613-1625
153The worker said that prior to the incident in 2011, his work involved a mixture of rigging and banksman duties. He said that after the incident, he returned to work with the employer as a banksman and remained in that role until 2012. The worker then undertook casual, intermittent rigging work until 2017 when he ceased work entirely.
154The worker complained of low-back pain, radiating into his left thigh, with a pulling type of pain in his right leg, and pins and needles in his left upper leg. He was taking four to six Panadeine Forte tablets daily. He was living alone, after his son moved out in 2018. He said he could carry out domestic tasks such as cooking and shopping but had difficulties cleaning and could not carry out home maintenance or weed his lawn.
155The Medical Panel observed reduced range of movement of the low back and loss of lordosis and wasting of the left calf and thigh. The Panel concluded that the worker was suffering from an aggravation of lumbar spondylosis with radiculopathy which was materially contributed to by the incident.
156The Medical Panel considered a medical report of Dr Malcolm Brown, Occupational Physician, dated 20 June 2018. The Medical Panel disagreed with Dr Brown’s opinion that the incident in 2011 resulted in a temporary aggravation of the worker’s lumbar spine condition which had since ceased.
Dr Gary Davison, Occupational Physician
157The VWA tendered a report from Dr Davison. Dr Davison conducted a Telehealth examination of the worker on 7 April 2020. His report is addressed to CGU Workers Compensation dated 14 April 2020.[89]
[89] Plaintiff’s Exhibit P39: PCB 1547-1554
158Dr Davison took a consistent history from the worker regarding his past history of low-back pain, prior surgeries and the incident in 2011.
159Dr Davison was told that the worker had trialled a range of medications including Tramal, Lyrica and Endep.
160At the time of the examination, the worker was taking four to six Panadeine Forte tablets daily. He had ceased physiotherapy and was waiting to have medial branch blocks.
161The worker reported limited tolerances for sitting, standing, driving and walking. Pain forced him to lie down at various points throughout the day. He was independent in activities of daily living, as well as light chores such as cooking, dishwashing and laundry. His son mowed his lawns, carried out any garden maintenance and assisted with heavier tasks such as vacuuming and bathroom cleaning.
162Dr Davison said his clinical examination was “limited” – presumably because it was conducted via Telehealth. Dr Davison observed the worker’s general mobility was diminished and the range of movement of the thoracolumbar spine was globally restricted to between half and two thirds of the expected normal range.
163Dr Davison agreed with the Medical Panel’s opinion that the worker was suffering from an aggravation of lumbar spondylosis with radiculopathy.
164Dr Davison opined that the worker was incapacitated for his pre-injury duties and that such incapacity was materially contributed to by the 2011 incident. Dr Davison opined that the worker retained the capacity for alternative, restricted, self-paced and sedentary work.
McDermott’s tendered medical evidence
Dr Malcolm Brown, Occupational Physician
165McDermott tendered a report from Dr Brown. Dr Brown examined the worker on 20 June 2018 and prepared a report bearing the same date [90]
[90] Defendant’s Exhibit D13: DCB 220-223
166The worker reported to Dr Brown that even though there had been improvement in his pain over time, his pain varied from day to day. He reported a recent bout of severe pain where he could not walk and spent several days in bed. The worker said he could sit, stand and drive for 20 minutes but had to frequently change his posture. He was taking eight Panadeine Forte daily and attending his physiotherapist every few weeks. The worker said he intended to return to his treating surgeon with a view to undergoing surgery.
167Dr Brown observed that the worker moved stiffly with an altered gait. Axial loading was negative and spinal rotation, flexion and extension were limited. Dr Brown did not comment on the clinical significance of these findings. Ankle reflexes were absent, and straight leg raising in the sitting position caused low-back pain. In the supine position, straight leg raising was restricted to 35 degrees bilaterally, due to low-back pain and tight hamstrings.
168Dr Brown diagnosed the worker with recurrent low-back pain with radiological evidence of significant degenerative change.
169Dr Brown opined that the incident caused a temporary aggravation of underlying degenerative change in the lumbar spine. It was his opinion the effect of the temporary aggravation had ceased and was unlikely to make any contribution to the worker’s back pain.
170Dr Brown considered that the worker had no capacity for work.
Dr Ian Dickinson, Orthopaedic Surgeon
171McDermott tendered a report from Dr Dickinson dated 25 February 2019.[91] Dr Dickinson examined the worker on 15 February 2019, at the request of the solicitors for the employer in the context of the worker’s damages proceedings.
[91] Defendant’s Exhibit D14: DCB 224-229
172Dr Dickinson recorded that around September 2011, the worker attended his GP after he could not get out of bed and was in agony with the pain. The worker ceased work on the barge in 2012 when his contract finished and undertook intermittent employment until 2017.
173The worker told Dr Dickinson that he took six Panadeine Forte tablets per day, as well as Endep and Lyrica. He had physiotherapy and chiropractor consultations and steroid injections – none of which assisted.
174The worker complained of back pain, mainly on the left side but also radiating down into the anterior aspect of the left thigh and posterior aspect of the right thigh. He said he could walk 2 kilometres but needed to rest afterwards and could drive for short periods. He also reported requiring assistance from his son with tasks such as mowing the lawn.
175On examination, Dr Dickinson observed that the worker walked normally but was stiff in his movement in all directions. His extension and lateral flexion were reduced. There were no restrictions in straight leg raising.
176Dr Dickinson diagnosed the worker with degenerative change of the lumbar spine which was becoming ankylosed (fused).
177Dr Dickinson considered the worker’s claimed injuries were not related to the 2011 incident and were instead the result of naturally occurring degenerative disease of his lumbar spine.
178Dr Dickinson considered the worker had capacity for pre-injury duties or suitable employment. This comment was made in the context of Dr Dickinson believing that the worker was working as a banksman, rather than a rigger, prior to the injury.
Factor X
The system of work
179The worker gave evidence that rigging work was specialised work which could only be performed by qualified riggers.
180Whilst the worker could not recall what had occurred on the commencement of the shift on the day of the incident, he said that he attended toolbox meetings at the start of each shift where Mr Stewart Wright, McDermott’s Superintendent, would:
“… give you a rough idea or a rough rundown on what we’d be doing on that shift … .”[92]
“… [The discussion] wouldn’t be detailed. He’d say, he’d say to the, the rig crew we’ll do this, do this, do this today on this shift today and um, this, or that and um, but he wouldn’t go into detail on the procedure.”[93]
[92]T58, L8-10
[93]T59, L3-6
181The worker’s evidence was that McDermott’s Superintendent gave broad and generic instructions and it was left to the riggers to determine the best way to perform the work.[94]
[94]T131, L1-3
182Initially in his evidence, the worker did not know what a TRA was until he was told that it stood for a “Trade Risk Assessment”.
183The general procedure was that the McDermott supervisor gave the TRAs to the Brunel staff.[95] They were sometimes filled out while the Brunel workers were completing a job; they were not always written up before the start of a job and were sometimes completed by the foreman (a Brunel employee) rather than by the McDermott Superintendent.[96]
[95] T137, L9-22
[96] T59, L17-25
184The worker was cross-examined about the content of the TRAs which were applicable to stripping out a winch. His evidence was that the foreman may be responsible for the TRA.[97] He said that he could not recall having any training about TRAs.[98] He could not recall any discussion of the TRA on the day in question.[99]
[97] T59, L24
[98]T59, L30‑31; T60, L1
[99] T63, L23
185At best, he could say that he was part of a team who had been told by a supervisor to take the wire off the winch, but the supervisor did not tell the team how to do it.[100]
[100]T68, L16‑22
186Later in cross-examination, the worker said that he did not know much about the TRAs and that most Leading Hands would fill them out, and in this case, it was likely to be Mr Button.[101] He said that normally the forms would be handed out at the start-up meeting by McDermott. I took this to be a reference to the toolbox meeting.[102]
[101]T136, L26‑31; T137, L1‑4
[102]T137, L5‑8
187The worker had no specific recollection of being provided with the TRA on the day in question but accepted that it was normal procedure that TRAs would be distributed.[103]
[103]T63, L23; T138, L1‑8
188Further, the worker agreed that TRAs would be handed out and that all workers would have a look at the document, and they would be signed off by a rigger.[104]
[104]T139, L2‑4
189He agreed that an expression in a TRA such as “make sure you tie off the loose end” would be the last component of the job but he said he had not seen such a TRA himself.[105]
[105]T141, L12‑18
190The relevant TRA from the day of the incident was not produced to the Court. No proper explanation was provided by McDermott as to why this critical document was missing.
191The difficulty posed by the absence of the relevant TRA is that the Court is being asked to speculate that:
· A TRA was prepared for the task of stripping the winch;
· That the TRA was provided to the worker and his team; and
· The terms of the TRA may or may not have been the same as the TRAs tendered to the Court.
192In the absence of any evidence about the TRAs, other than the worker’s evidence that he did not recall seeing a TRA for the specific task of stripping out the winch, I will not speculate about the content and use of a TRA which has not been produced.
193The VWA tendered seven other TRAs, none of which dealt with the specific job of stripping the winch. Some of the TRAs did, however, refer to using a messenger rope. The TRA’s did not contain uniform directions about the use of the messenger rope.
194I find that the seven TRAs produced to the Court are of little probative value.
Should an adverse inference be drawn against the Defendant regarding Mr Button?
195The principles in Jones v Dunkel[106] are well known and were not in dispute.
[106] Ibid
196If there is an unexplained failure to call a witness whom a party may be expected to call, the Court may infer that the witness’s evidence would not have assisted the party and the Court may draw an inference unfavourable to the party.
197The VWA submitted that the Court should draw an adverse inference regarding McDermott’s failure to call Mr Button.
198Mr Button was an employee of Brunel at the time of the incident. Whilst the VWA is not necessarily to be expected to call Brunel’s employees, it called the worker.
199It is reasonable to think that Brunel’s employees and their knowledge was available to the VWA rather than any other party.
200There is no property in witnesses. Mr Button was equally available to both parties. If Mr Button were in anybody’s camp, he would be more properly seen as a witness in the VWA’s camp.
201I find that the uncalled evidence would not have assisted either side and I draw no inferences from the failure to call Mr Button.
The VWA’s submissions on Factor X
202It was the VWA’s case that McDermott was negligent because it had control of the worksite.
203The plaintiff relied heavily on three aspects:
· The existence of the TRA (which was not produced);
· The expert opinion of Captain Chaudhri; and
· The provision of a messenger rope which is a separate rope attached to the cable.
McDermott’s submissions on Factor X
204McDermott’s primary position was that it had not been negligent and therefore Factor X should be zero. McDermott submitted that Brunel was engaged to provide labour in the form of specialised riggers.
205McDermott submitted that the negligence of Brunel was the sole cause of the worker’s injury.
206It was said that the cause of the incident was threefold:
· The failure of the co-worker (or co-workers) not to tie off the end of the cable;
· The failure of the Brunel supervisor to properly supervise the work; and
· The failure to warn the worker that the unwinding of the cable was nearing its end, and to warn him to “keep clear”.
207Alternatively, it was said that the negligence of Brunel was the predominant cause of the worker’s injury, and that Factor X should be no more than 25 per cent.
Findings on Factor X
Was the worker negligent?
208McDermott pleaded in its Defence that the worker was negligent. This point was appropriately abandoned in the running of the case. There was no evidence to suggest that the worker was negligent.
What is the appropriate determination of Factor X under Section 369?
209I have to consider the extent to which the act, default, or negligence of Brunel and/or McDermott caused or contributed to the worker’s injury.
210Contribution is to be assessed on the basis of what is just and equitable having regard to the content of the responsibility for the damage.
211This in turn involves two principal considerations:
· The degree of departure from the standard of care required; and
· The causal potency of the relevant breach.[107]
[107]Zealley v Liquorland (Aust) Pty Ltd & Anor [2015] VSC 62; Papadopoulos v MC Labour Hire Services Pty Ltd and Anor (No 4) (2009) 24 VR 665; Ford v Elmore Haulage Pty Ltd and Anor; VWA v Snowy Monaro Regional Council [2019] VSC 58
212Phillips JA in Kocis v S E Dickens Pty Ltd[108] observed that the question of causation, a question of fact, is addressed to the actual act or omission of a defendant that amounts to negligence; whether that be the lack of a system, the inadequacy of the system, or the failure to follow a reasonable system at a particular time.
[108][1998] 3 VR 408, at 417-418
213In Podrebersek v Australian Iron and Steel Pty Limited[109] it was said that:
“The making of an apportionment a between a plaintiff and a defendant of their respective shares in the responsibility for the damages involves a comparison both of culpability, i.e. of the degree of departure from the standard of care of the reasonable man … and of the relative importance of the acts of the parties in causing the damage … It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. … .”[110]
[109] (1985) 59 ALR 529
[110] Ibid at 532-533, paragraph [10] (citations omitted)
214It is convenient to first look at the duty owed by Brunel. As an employer, Brunel owed a non-delegable duty of care to its staff which included the worker.[111] The duty is often described as a duty to ensure that reasonable care is taken which cannot be delegated to others and so is more stringent than a duty to take reasonable care.[112]
[111] Kondis v State Transport Authority (1984) 154 CLR 672 at 687
[112] The Commonwealth v Introvigne (1982) 150 CLR 258 at 271
215It was one of Brunel’s employees who dropped the cable. There can be no doubt that this worker was negligent in doing so. As his employer, Brunel was vicariously liable for his actions.
216It was accepted by both parties that McDermott owed the worker a duty of care.
217McDermott contended that its duty of care, informed by the contractual arrangements with Brunel, did not require it to conduct inspections of the Brunel work.
218The pivotal point was the nature and extent of the control which McDermott had over the system of work engaged in by the Brunel employees, in particular in relation to the stripping out of the winch.
219McDermott conceded that the TRAs relating to rigging duties were put in place in conjunction with Brunel.[113] It was submitted that whilst McDermott gave direction to Brunel as to the tasks which were required to be undertaken, it was up to Brunel to determine how the tasks were to be performed. It was said that whilst McDermott gave the general directions as to the system of work, it was up to Brunel to implement the system of work.
[113]T23, L16-22
220McDermott was the occupier of the barge. The barge, by its location out in the Bass Strait, was a unique and isolated working environment. Given this, the need for inspections and the enforcement of safe work practices was particularly acute.
221I find that a reasonable person in the position of McDermott should have taken steps to ensure that a TRA relating to stripping the winch was in place and implemented. Any such TRA should have included a direction about the use of a messenger rope, and this system of work should have been overseen and enforced by McDermott.
222Given the attendance of the McDermott Superintendent at the tool box meetings, it cannot be said that McDermott delegated its duty to Brunel. The Supervisor had a role to play at the tool box meetings.
223McDermott failed to do so, and its failure was a breach of its duty. The breach of duty by McDermott amounts to a systemic breach, in that it was a failure to enact and enforce a safe system of work which responded to the foreseeable risk of injury.
224The VWA has satisfied its onus to establish that, on the balance of probabilities, the negligence of McDermott was a cause of the worker’s injury, loss and damage.
225I find that Brunel and McDermott could have each taken precautions, independent of each other, to avert the incident.
226Given the non-delegable nature of Brunel’s duty of care, I do not accept the submission that Brunel’s liability was small by comparison to that of McDermott.
227I find that Brunel could have ensured that its rigging supervisor properly supervised the crew, and that the rigger used a messenger rope and did not drop the cable without warning.
228I find that McDermott could have supervised the Brunel staff more thoroughly and ensured that an appropriate TRA was both implemented and complied with.
229The causal potency of Brunel’s breach (including its vicarious liability) involves a greater degree of departure from the high standard of care owed to the worker.
230Considering all the matters, I apportion liability as follows:
· Brunel 70 per cent
· McDermott 30 per cent.
231In those circumstances, I assess Factor X at 30 per cent.
Factor A
232In order to assess Factor A, the Court has to make findings as to the worker’s notional entitlement to common law damages on general common law principles.
233The principles which apply to awards of damages are well known and will not be repeated here.
The VWA’s submissions on Factor A
234The VWA submitted that Factor A should be assessed in the range of $1,034,000 to $1,054,000. These figures were broken down as follows:
· $180,000 to $200,000 for general damages
· $505,000 for past economic loss
· $61,000 for past medical and like expenses
· $48,000 for future medical expenses
· $73,000 for past Griffiths v Kerkemeyer[114] damages; and
· $167,000 for future Griffiths v Kerkemeyer damages.
[114] (1977) 139 CLR 161
235The VWA did not include any future economic loss in its Factor A assessment calculations, as the worker was to turn sixty-seven shortly after the hearing.
236In terms of past economic loss, Senior Counsel for the VWA submitted if McDermott was to rely on a submission that the worker would have been forced to cease work before retirement age due to his pre-existing back condition, regardless of the incident in 2011, then McDermott had to establish with a degree of precision when this cessation would have occurred.[115] The VWA submitted the defendant had not discharged such a burden.
[115] Purkess v Crittenden [1965] 114 CLR 164
237The VWA submitted the height of McDermott’s evidence on this point was Mr Dooley, who concluded that the worker would not have worked to retirement age but could not say he would have definitively ceased in 2017.[116]
[116] T545- T547
238The VWA submitted there was a 70 per cent chance the worker would have worked to age 65, if not for the incident in 2011.[117] The VWA conceded this was not a precise timeframe but maintained it was difficult to provide a conclusive date.[118]
[117] T563, L10-12
[118] T563, L14-17
239Ultimately, the VWA submitted the Court should accept its assessment of past loss, as it reflected the fact the worker was a stoic man who had demonstrated his intention to continue working to retirement age, as per his return to work after the two earlier back surgeries.[119]
[119] T563, L1-5 – L18-21
240The VWA accepted, given the multifactorial issues at play, there was potential for the Court to apply a Malec v Hutton[120] discount.
[120] (1990) 169 CLR 638
McDermott’s submissions on Factor A
241McDermott provided the following breakdown for their factor A figures:
· $50,000 (primary)/$100,000 (alternative) for general damages
· Nil (primary)/$250,000 (alternative) for past economic loss from March 2017 to date
· $2,274.44 (primary)/$48,793 (alternative) for past medical and like expenses
· Nil (primary)/$24,000 (alternative) for future medical expenses
· Nil (primary)/$36,500 (alternative) for past Griffiths v Kerkemeyer[121] damages and
· Nil (primary)/$80,000 (alternative) for future Griffiths v Kerkemeyer[122] damages.
[121] Supra
[122] Supra
242McDermott submitted the incident was a minor event in the context of the worker’s pre-existing back condition. In support of this, McDermott noted the worker had made only limited complaints to the on-board doctor, had only first reported the incident to Dr Mostofa in October 2011 and continued working after the incident.
243McDermott’s primary submission was that Factor A should be limited to pain and suffering damages, with a miniscule amount for past medical expenses but no allowance for past economic loss or future medical expenses.
244McDermott submitted its primary assessment was appropriate given the worker’s pre-existing back condition.[123] In support of this, McDermott submitted the preponderance of medical evidence was that the worker would have been forced to cease employment due to his pre-existing condition, regardless of the incident.[124]
[123] T477, L21-31 – T478 – T479
[124] T476, L30-31 – T477, L1-14
245McDermott submitted that only some of the past medical and like expenses claimed by the worker were related to the 2011 incident, whilst the rest were attributable to the pre-existing condition, meaning a heavily discounted figure should apply to any award of past medical and like expenses.
246In the alternative, McDermott posited a heavily discounted figure was reasonable for past economic loss and future medical expenses.
247This was presumedly to account for the uncertainty regarding when exactly the worker would have ceased employment had the incident not occurred and to again reflect the interplay between the worker’s pre-existing back injury and his condition after the incident in 2011.
248McDermott said its alternative figures applied a reduction of approximately fifty to seventy per cent for vicissitudes, given the worker’s heavily compromised back before the incident in 2011 which is said was consistent with the reasoning in cases such as Trtovac v Total Mix Pty Ltd & Anor[125] and Acir v Frosster Pty Ltd.[126]
[125] [2022] VSC 149
[126] [2009] VSC 454
Findings of Factor A
Nature of the injury
249There was almost unanimous agreement in the medical evidence that the worker had a serious pre-existing back condition which was aggravated by the incident.
250The only examiner who disagreed with this was Dr Ian Dickinson, Orthopaedic Surgeon, in a report dated 15 February 2019.[127] Dr Dickinson concluded the worker was suffering from degenerative change of the lumbar spine caused by naturally occurring degenerative disease and unrelated to the 2011 incident.
[127] Defendant’s Exhibit D14: DCB 224-229
251Dr Dickinson’s opinion is against the overwhelming weight of medical evidence. It is also inconsistent with the submissions of the parties, who agreed the worker’s pre-existing back condition was aggravated by the incident in April 2011.[128] His opinion on this point therefore carries little weight.
[128] T16, L6-14 and T483, L4-8
252The worker did not downplay the seriousness of his prior injuries and as noted above, there was no dispute that he had a serious pre-existing back condition.
253As such, I find that the worker sustained an aggravation of pre-existing lumbar spondylosis with radiculopathy in the 2011 incident. This is broadly consistent with the opinions of Dr Slesenger, Mr Chehata, Mr Dooley, Dr Clark, Dr Doig, Dr Brown, Mr Johnson and the Medical Panel.
254I find that the aggravation continues to play a role in the worker’s current presentation, despite the reasoning of Mr Dooley and Dr Brown, that any incident-related aggravation has ceased. I find so, as I prefer the reasonings of Dr Slesenger, Mr Chehata, Dr Clark, Dr Doig, Mr Johnson and the Medical Panel, given the nature of the incident and the force with which the worker was struck by the wire.
What was the extent of the worker’s pre-existing condition?
255There is no doubt that the worker’s back was compromised prior to the incident.
256I accept the worker’s evidence that he was working without restrictions up to the time of the incident. I am fortified in that finding by reference to the extensive pre-employment medical examination carried out by Brunel in early September 2010 which included an examination of the worker’s back and an assessment of his physical capacity to work.[129]
[129]Plaintiff Exhibit P2: PCB 698-711 – a medical practitioner recorded normal range of dorsolumbar and cervical spine movements
Would the worker be in a similar position absent the subject incident?
257McDermott submitted the timing and limited number of complaints to Dr Rainolds, the onboard doctor, together with his delayed reporting of the incident to his GP, Dr Mostofa, supported its assertion that the incident was a minor event.
258I reject McDermott’s submission that the discrepancy in the timing of the worker’s attendance with Dr Rainolds was of any significance. The fact is that the worker attended Dr Rainolds on the day after the incident. The worker said that he attended in the morning prior to commencing his next shift, whilst Dr Rainolds’ notes suggested he attended around 6.00pm.[130] It is of little consequence whether the consultation took place in the morning or the evening. The evidence is that the worker attended a doctor on 4 April 2011, reported the incident, and symptoms were recorded by Dr Rainolds.
[130]Defendant Exhibit D2: PCB 353; Defendant Exhibit D3: PCB 1469. There was no explanation as to why Dr Rainolds’ report was dated 30 March 2011. It is noted that Dr Rainolds recorded in both documents that the worker was a “banksman” who could continue to work as long as he was not involved in any lifting or physical work.
259The worker maintained he was given Panadeine Forte after the incident in 2011 by Dr Rainolds and on a number of occasions thereafter. McDermott put to the worker that the notes of Dr Rainolds did not include any reference to any pain-relief medication being dispensed. However, McDermott conceded it was unsure whether the records which had been produced were the complete records of the onboard medical service.[131] As such, at its highest, it can only be said that the records before the Court do not contain any reference to the worker being provided pain-relief medication by Dr Rainolds but there is doubt that the complete records of the onboard medical service have been disclosed.
[131] T188, L21-30 – T190
260Given my findings as to the worker’s veracity, I accept his evidence that he was provided with Panadeine Forte on 4 April 2011.
261In relation to the worker’s attendances on Dr Mostofa in 2011, it is understandable that the worker could not precisely remember when he first reported the incident to Dr Mostofa, given the reporting would have occurred 13 years ago.
262Dr Mostofa did not give evidence. The Court is left with what appears to be a contradiction between the clinical records and when the worker says he first reported the incident to Dr Mostofa. The lack of recorded complaints could be explained by the fact that the worker was a man who had experienced fluctuating back pain over decades. The worker said that his GP was fully aware of his history and that he may not have immediately attended his GP to discuss every change in symptoms.
263The worker said he had attended Dr Mostafa the first time he was off after the injury.[132] I took this to refer to the first time he had left the barge after the injury.
[132]T93 L14-16
264The worker said that he could not recall when he first told Dr Mostafa about the incident, but he was adamant that it was before October 2011 which was the first record in Dr Mostafa’s clinical notes.[133]
[133]T 199 L18, T 215-216.
265At its highest, this suggests the worker’s memory may be unreliable on this point. This unreliability neither supports nor refutes McDermott’s submission that the incident in 2011 was a minor event.
266Medical records should be approached with caution,[134] given their intended use, which is to assist in forming a diagnosis and, where appropriate, a treatment plan for a patient.
[134] Hettiarachchi v Transport Accident Commission [2023] VSCA 27, paragraphs [57]- [58]
267The worker’s evidence that his GP was aware of his longstanding back problems had a ring of truth about it, and I accept it. I also accept his evidence that he had continuing back pain after the incident.
268The worker said he had intended to work until he was at least 67 but was unable to do so. I accept that evidence.
269The hypothetical question of whether the worker would have needed to cease work in 2017, even if the incident had not occurred in 2011, was addressed by Dr Malcolm Brown[135] and Mr Michael Dooley.[136] I note that Mr Dooley made appropriate concessions in cross-examination on this point which are referred to above.
[135]Defendant Exhibit D13
[136]T421-428
270Mr Chehata was of the contrary opinion, and it can be inferred from the opinions of the Medical Panel and Mr Surkitt, in that they both considered the subject incident to be a significant contributor to the worker’s current condition.
271I find that McDermott has not established, that absent the incident, the worker would have been in the same position as he is now, nor has it established that the worker would have ceased work at any earlier date if the incident had not occurred.
Factor A assessment.
Pain and suffering damages
272I accept the worker’s evidence as to the pain and suffering consequences and restrictions he has faced since the incident. I consider the amount of $150,000 is an appropriate award for pain and suffering damages.
Past economic loss
273I accept that the worker ceased work in March 2017 due to his back condition.
274The VWA has claimed a loss at the rate of $1,389 per week (including superannuation) based on the worker’s 2010 and 2011 taxation returns. The worker’s past economic loss from the time of his cessation of work to the time of the trial covered a period of 364 weeks – the undiscounted loss assessed at $505,596 – which the VWA rounded down to $505,000.
275The VWA did not discount the figures for vicissitudes. In normal circumstances a 15 per cent discount would be applied; however, as set out below, I have applied higher reduction for vicissitudes. I will allow the full figure claimed to avoid double discounting.
Past medical and like expenses
276The VWA has claimed a total of $61,000 for past medical and like expenses[137] which included the sum of $2,940 for “personal and household services” – these amounts included fees for lawnmowing and similar services.[138]
[137]Plaintiff Exhibit P3
[138]Plaintiff Exhibit P3
277I have allowed the full amount claimed.
Future medical and like expenses
278The VWA claimed the sum of $48,000 under this head.
279The VWA’s assessment of this sum was based on an average of the expenses incurred by it over the preceding twelve months, applying a multiplier for the worker’s life expectancy.
280The worker was not asked whether he intended to have ongoing treatment in the future.
281The VWA did not discount the figures for vicissitudes. I have adopted a similar approach as to past economic loss to avoid double discounting.
Past Griffiths v Kerkemeyer damages
282The VWA’s assessment of this sum was based on an allowance of a total of 4 hours per week at $50 per hour for gardening and indoor domestic tasks for a total of 364 weeks. This added up to $72,800 but the VWA claimed an adjusted figure of $73,000 under this head of damage.
283As the sum of $2,940 has already been allowed under the claim for past medical and like expenses, it should be deducted.
284Taking that into account, the sum of $70,000 will be allowed.
Future Griffiths v Kerkemeyer damages
285The VWA claimed the sum of $167,000 under this head. This assessment of this sum was based on an allowance of a total of 4 hours per week at $55 per hour for gardening and indoor domestic tasks, applying a multiplier for the worker’s life expectancy.
286The VWA did not discount the figures for vicissitudes. Consistent with my approach to past economic loss and future medical and like expenses, I will allow the full figure claimed to avoid double discounting.
Vicissitudes
287I have found that McDermott has not established that the worker would have been in the same position as he is now, or that the worker would have ceased work at any earlier date if the incident had not occurred.
288Despite that finding, there is evidence which requires a reduction for vicissitudes. The evidence includes the worker’s previous back surgeries, the medical evidence addressing the hypothetical situation (that is, what was likely to have occurred absent the subject injury), the fact that the worker was stoic and had a strong work ethic, as well as the fact that he underwent a pre-employment medical examination and had been working on a full-time basis for several months prior to April 2011.
289Having considered all the evidence, and given the worker’s complex medical history, and recognising that it is impossible to be precise on this point, I find that it is likely that approximately half of the worker’s current situation is due to the incident.
Summary Factor A
HEAD OF DAMAGE
ASSESSMENT
Pain and Suffering
$150,000
Past Economic Loss
$505,000
Past Medical and like expenses
$61,000
Future Medical and like expenses
$48,000
Past Griffiths v Kerkemeyer damages
$70,000
Future Griffiths v Kerkemeyer damages
$167,000
Sub Total $1,001,000 Less vicissitudes (50 per cent)
$500,500
Conclusion
290Accordingly, I find:
Factor A = $500,500
Factor C = $45,000
Factor X = 30 per cent.
Applying the s369 formula:
[$500,500 - $45,000] x 30/100 = $136,650.
291I will hear from the parties as to the form of orders and on costs.
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