Warn v Best Bar Pty Ltd - [2018] WADC 17

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: WARN -v- BEST BAR PTY LTD [2018] WADC 17

CORAM: BRADDOCK DCJ

HEARD: 31 OCTOBER, 1 & 2 NOVEMBER 2016, 17, 18 & 19 JANUARY 2017

DELIVERED : 2 FEBRUARY 2018

FILE NO/S: CIV 2839 of 2015

BETWEEN: JOHN ELLIOT WARN
Plaintiff
AND
BEST BAR PTY LTD
Defendant

Catchwords:

Torts - Negligence - Employer's liability - System of work - Back injury - Jones v Dunkel - Damages - Assessment - Future loss of earning capacity

Legislation:

Nil

Result:

Judgment for the plaintiff
Damages assessed at $1,389,300.12

Representation:

Counsel:

Plaintiff: Mr G T Stubbs
Defendant: Mr D R Clyne

Solicitors:

Plaintiff: Chapmans
Defendant: Kott Gunning

Case(s) referred to in judgment(s):

Cameron v Sullivan [1962] QWN 32
Chapman v Hearse (1961) 106 CLR 112
Dulieu v White & Sons [1901] 2 KB 669
Jones v Dunkel (1959) 101 CLR 298
Leotta v De Brincat [1959] QWN 1
Medlin v State Government Insurance Commission (1995) 182 CLR 1
Montemaggiori v Wilson [2011] WASCA 177
Mount Isa Mines v Pusey (1970) 125 CLR 383
MR & RC Smith Pty Ltd t/as Ultra Tune (Osborne Park) v Wyatt [No 2] [2012] WASCA 110
Pene v Murphy [2004] WASCA 103
Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434
Shire of Gingin v Coombe [2009] WASCA 92
Taylor v Tuesley [1963] QWN 15
Transfield Services (Australia) Pty Ltd v Wieland [2014] WASCA 41
Wyong Shire Council v Shirt (1980) HCA 12; (1980) 146 CLR 40

BRADDOCK DCJ:

Introduction

In 2013 the plaintiff, John Elliot Warn (Mr Warn), worked for Best Bar Pty Ltd (Best Bar), the defendant company, at a factory at Rockingham. He worked on machines which cut or bent steel reinforcing rods in various shapes and sizes. One of the machines was called a 'Robo 45' bender. The machine operator entered details for the job to be done into a console and the machine used an automated process to bend the bars accordingly. The machine operator initiated the bending process using a foot pedal.
The bars were cut to length on another machine, the Shearline, operated by other employees and then sent to the Robo 45. There was a system whereby the bars were tipped from a holding pocket onto the Robo 45 for bending.
On a date in May 2013, Mr Warn was working bending steel bars on the Robo 45, from the beginning of his morning shift. It is alleged that he worked with short bars and therefore he was required to lift them out of the machine manually and place them on the finished goods table adjacent to the machine. He did this for some time. He claims he suffered an injury to his back during this process.
Subsequently he sought medical treatment, had time off work, and was paid Workers' Compensation to the maximum provided in the relevant legislation.
It was found, on medical investigation, that his back had a lytic spondylolisthesis grade 1 at L5/S1, moderate disc narrowing at L4/5 and L5/S1, a right L5/S1 foraminal disc protrusion with impingement onto a conjoined right L5/S1 nerve root. He underwent decompressive surgery in August 2013. His back problems did not resolve and further he suffered 'foot drop' on the right side. He had a lumbar interbody fusion at L5/S1 in December 2013. He had further surgery in May of 2015 to revise the fusion. There were various periods of rehabilitation at his work, managed under the workers' compensation legislation. Unfortunately, he was made redundant a year after the last operation, at a time when he was still undergoing a staged return to full, but alternative duties. At the time of trial, he continued to suffer significant residual disabilities and pain and had not obtained any other employment.

The action

On 6 August 2015, Mr Warn issued a writ seeking damages for negligence at common law, breach of duty under the Occupational Health and Safety Act 1984 (OHSA) and for breach of contract.
It serves no purpose to set out here all matters in the original statement of claim. The contractual aspect of the claim was not pursued at trial. Counsel for Mr Warn conceded that, in this instance, the OHSA added nothing to the common law claim and relied upon the common law duty of care.
The particulars of the claim in negligence were amended at the end of the trial. The amended particulars were:
Particulars of breach of common-law duty
(a)Failed to ensure that when the plaintiff carried out the task, all three discharge arms were used to deliver the bars to the operators waist level, so that the plaintiff did not have to physically lift bars out of the machine
(b)failed to prevent the plaintiff from carrying out the task in the manner that required him to physically lift the bars out of the machine;
(c)failed to ensure that it provided sufficient staff numbers, that being at least one additional staff member, to assist the plaintiff when carrying out the task so as to avoid having to physically lift the bars out of the machine without assistance;
(d)failed to put in place or ensure that others put in place a system of work that would ensure all three discharge arms were used to deliver the bars to the operators waste level, so that the plaintiff did not have to physically lift the bars out of the machine;
(e)failed to provide the plaintiff with the necessary information, instructions, training and/or supervision to ensure the plaintiff avoided having to carry out the task in a manner which required him physically to lift the bars out of the machine;
(f)failed to assess the risks involved and /or warn the plaintiff of the risks involved in carrying out the task in a manner that required him to physically lift the bars out of the machine as a result of the machine [sic];
(g)failed to provide adequate equipment so as to allow the plaintiff to carry out the task safely and avoid having physically to lift the bars out of the machine;
(h)failed to put in place systems to ensure that it did or avoided doing those things specified in (a) ‑ (g) above.
The defence admitted that Best Bar owed Mr Warn a duty of care at common law and also had duties to him under the OHSA. It admitted that Mr Warn was working on the Robo 45 bender, but did not admit the injury or accident and denied the particulars originally pleaded. The defence asserted that Mr Warn had been instructed in the use of the machine, that the task was simple, not dangerous or physically onerous and required no warnings to be given. Formal matters were admitted in the pleadings. At trial, it was admitted that Mr Warn had made an election to seek damages at common law and his degree of whole person impairment was at least 25%. This, it is accepted in this case, results in no legislative impediment to the assessment of common law claim.

The trial

The trial commenced on the basis that the injury suffered by Mr Warn occurred on the date pleaded, which was 'on or about' 27 May 2013. It emerged on the second day of trial that this date was problematic. The documents available at that stage, evidencing the use of the Robo 45 on the days around that date, did not show the work Mr Warn described nor could it be established that he was using the Robo 45 on or about that day. The trial was adjourned, whilst Mr Warn was still under cross‑examination, for further enquiries to be made. Further documents were located. When the trial resumed, the pleaded date was amended, as were the particulars, without objection. The accident was then alleged to have occurred on 20 May 2013.

Evidence

Mr Warn, his wife, Natalie Warn, Dr Michael Kern, a neurosurgeon, and Mr Kelwyn Yeo, an occupational therapist was called to give evidence. A large number of medical reports were tendered by consent without further evidence called from their authors. There was no discernable dispute about the medical treatment, or the efforts of others engaged to assess, assist or rehabilitate Mr Warn.
Mr Warn commenced his testimony by detailing his educational and work history, his qualifications and lifestyle.
All his qualifications were of a practical kind, he had been a handyman, worked in carpentry assembly, at Austral Ships as an electrical trades assistant, repaired reticulation, been a driller's offsider, operated machinery and worked for Best Bar since 2008.
He liked to play golf every now and then, he went fishing once a week, generally at the beach in a four-wheel drive, he occasionally went camping. He had been a member of 'Anytime Fitness' gym in Mandurah for two years before the accident and worked out without problems there. He walked every second day up to 14 km. He had clearly made considerable efforts to maintain his fitness and was able to jog for 4 ‑ 5 km.
At home, he did all the outdoor chores and gardening. He would do the same for family and friends, sometimes for a modest payment of about $50 per month.
He also augmented the family income by recycling aluminium for cash, from which he earned about $500 ‑ $1,000 per annum. He said he would do a bit of cooking.
He had three children and participated in sport with the older two.
He was generally in good health. He had had an ankle injury in 2008 resulting in 6 ‑ 8 weeks off work, followed by some light duties. He suffered a back strain in 2010 at work, for which he had a week off then returned to full duties. His back had resolved without further problems.
He then described the work that he did at Best Bar. His training involved being shown the job by more senior operator and working alongside him for a few weeks. First, he worked on a manual bender. Then on the 'Robo 60', which arrived a few months after he started the job. Initially, there was no documentation or manual. The Robo 45 arrived sometime later. There was no specific training for it, because they were told that it was a smaller Robo 60, with the same features. Eventually the workers were given a set of instructions and he identified exhibit P148 as very similar to those instructions.
In evidence, Mr Warn was taken through the procedures (exhibit P148, page 148) and explained the 'pre‑start', which were necessary at the beginning of each shift when starting up the machine. He said that team leader/supervisor came and watched a retraining, introduction and assessment session, at a later date. By this time Mr Warn said he was already using Robo 45.
He described how the orders were processed from job tickets completed in the office which were then sent to the Shearline for cutting from where they fed the steel to the Robo 45 and 60.
His evidence was that there were two Robo 45, which were basically the same. It turned out there was only one at the relevant time.
He described how the barcodes on the job dockets were scanned as they proceeded through the process in the factory.
On the date of the accident, he started work at 6.00 am. At that time he was given instructions and allocated to the machine. He said it was set up for short bars. He went through the start‑up procedures and did a dummy run, even though the machine was already set up. He said he still had to check the job tickets give an idea of what needed to be programmed into machine. The tickets were waiting on the console for the operator. These were plastic cards containing all the information to enter into machine.
He described the process the bars came out of pockets onto roller via a conveyor belt. The operator 'pushes buttons and lines them up on rollers'. The operator then starts the machine bending remotely.
He went on to describe the process, mostly using his hands and a diagram of a Robo 60 (exhibit P153). He said he was working on short bars, so:
I did not use the bays on this operation they were pushed out of the way - you turn around and have a trolley with wheels behind - turn around and lift them onto it small trolley with 4 wheels and posts, uprights 300mm, to stop the bars rolling off the trolley it was 900-1000mm in height.
From Mr Warn's evidence it became apparent that there were two ways in which he used the Robo 45 to bend the steel bars. One, the 'standard' method for want of a better description followed the instructions set out in exhibit P148. In this mode, a worker was not required to lift the bent bars out of the Robo 45, rather the machines 'kickers' or arms automatically raised the bars and rolled or slid them towards the operator. Then they either went into a holding gallery or were placed on a trolley at waist height by the operator.
The other method, used by Mr Warn on the day of his accident circumvented the process by which the 'kickers' raised the bars, leaving the operator to life them. He called this the short bar method.
He said he worked for two hours. In that time the jobs were all small bars for processing four to five at a time. He said that the bars are not round but have to be lined up. He said that nothing happened, did not feel any pain until he felt a sharp pinching when he was lifting bars out of the machine. He said there were five, weighing 12 kg ‑ 15 kg. Initially, he re‑affirmed he had by then been working for a couple of hours at the same thing.
He said he stopped and went to report to the safety representative before smoko which was roughly at 8.00 am or 8.30 am. He told him that he had pulled a muscle whilst bending bars.
When shown the DVD of the demonstration of use of the machine, Mr Warn commented that he was bending similar bars but if the second kicker lifted four to five together, when the machine released the bars they tended to twist and jam in the 'diehart'.
After smoko, Mr Van der Hoff came and told him Mr Kopacz was busy would come and see him but to continue working.
He said he went back to machine, in quite a bit of pain and tried to continue doing the same task. He said it was half an hour before they both came to see him. By that time he was 'even sorer', so he was told to go to work on the 'mini shear', which was 'light' duties.
He said if he had not lifted bars out it would have risked a jam and that would shut the machine down automatically. This would mean he would have to clear the bench and reset the machine. If that happened, he lost between 30 seconds to a couple of minutes.
Mr Warn described his experiences as a result of the injury and its treatment, and detailed his current residual disabilities. I will return to these details later.
Cross‑examination commenced, but it became apparent, after some time, that something was amiss in relation to the documentation which counsel for Best Bar was putting to Mr Warn.
Before the proceedings were adjourned, it was established in evidence that Mr Warn had no concerns about what he was doing and had felt nothing untoward until he lifted five short 20 mm bars, when he instantly felt pain in his back. He said this was about 8.00 am or 8.30 am. He defined short bars as 2 m and under. When he was shown a video of the 'standard' operation of the Robo 45, he said that the machine could be used for shorter bars in the manner shown on the video. When asked why he did not do so, his answer was that the machine was already set up to use the 'other mode' for short bars when he started that morning, and to reset it was classed as time wasting. He also said that he was bending a mixture of 20 mm and 24 mm bars that day. This turned out not to be the fact when the correct job cards were produced.
The other evidence relevant to the work on the Robo 45 came from Mr Ackland, an expert engaged by Best Bar. He had been instructed with the original pleadings and Mr Warn's statement to the accident investigator. From those documents, it was clear that Mr Warn said that he was manually lifting four bars at a time out of the Robo 45, because the bars were too short. Mr Ackland noted this and also noted that Mr Warn said he was doing everything in accordance with safety procedures.
On attending the premises of Best Bar, Mr Ackland was given a demonstration by Mr Lee Kopacz of the operation of the Robo 45, by bending bars of 1.95 m. Mr Ackland's report was tendered in evidence by consent. It was clear from the details of the demonstration that an operator can use the Robo 45 to bend bars of 1.95 m using the 'standard' method of operation. A DVD containing footage of its operation, was produced (exhibit D5).
Mr Ackland made no direct comment upon the method of working described by Mr Warn.

Medical and rehabilitation evidence

Mr Warn did not see a doctor on the day of the accident and returned to work the following day. He said his back was sore, but he worked on the 'mini shear', doing small jobs, and continued to do so for the rest of the week. His back pain got worse. He went to Dr Smit in Mandurah on the Friday morning. He was certified unfit to work. He made no workers' compensation claim at that point. He went back to work on 10 June, but refused to work on the Robo 45. He was placed on light duties and sent to see Dr Pavic, the company doctor, whom he thereafter continued to consult. He returned to work and was placed on office duties. He took painkillers. The pain did not improve. He made a formal claim for workers compensation in respect of the injury on 20 June 2013. When his condition did not improve, Dr Pavic referred him to Dr Liddell, a neurosurgeon.
Dr Liddell saw Mr Warn on 16 July 2013. Having taken history and examined him, Dr Liddell arranged for further investigations, including a lumbo-sacral MRI scan and further CT scans. These revealed evidence of a grade 1 lytic spondylolisthesis of L5 on S1, associated with mild but significant degenerative changes in his L4/5 and in particular L5/S1 discs, along with a moderately large intra foraminal disc herniation on the right at L5/ S1. This was compromising his right L5 and S1 nerve roots, which were conjoined.
His advice was, considering Mr Warn's age and his observations, that he would prefer to avoid a fusion procedure. He suggested and subsequently performed a lumbar microdiscectomy at L5/S1. Unfortunately, after this procedure Mr Warn woke with a significant degree of foot drop on the right. This was said to be a consequence of his conjoined L5 and S1 nerve roots, which were explored during the procedure. Mr Liddell considered that his patient had improved following surgery and been relieved of much of his discomfort. However, Mr Warn had pain in the top of his right foot and other sciatic symptoms. In November 2013, Dr Lidell sent Mr Warn to see Dr Michael Kern, also a neurosurgeon, for review.
Dr Kern found that there were severe right L5 radicular symptoms, despite the surgery, and agreed that the only option was now a fusion for Mr Warn. At this point, Mr Warn had near complete right-sided foot drop, sciatic pain and severe lumbosacral pain. On 9 December 2013, Dr Kern performed posterior lumbar interbody fusion at L5/S1 with dynamic fixation at L4/5.
Mr Warn subsequently developed a pseudoarthrosis, which is a 'false joint', with movement where there should be none in the fusion, and loosening of the pedicle screws. Dr Kern therefore performed a revision fusion on 11 May 2015, when Mr Warn's condition had not improved. Dr Kern's view was that the revision fusion was successful, with bony consolidation visible on the CT scan on 12 November 2015. After the second fusion, Mr Warn's lower back pain significantly improved, although he had some persisting right L5 dermatome numbness. He had significantly improved strength in his right foot.
On 1 October 2016, when he reviewed Mr Warn, Dr Kern stated that he did not believe Mr Warn had been fit to carry out his pre-accident role as a machine operator from the time of the injury to that date. His prognosis was guarded in relation to Mr Warn's return to his pre‑accident role. These reasons were recurrent back pain episodes when performing physical activities and an improved but persisting right L5 neve injury manifesting with right L5 dermatomal numbness and right ankle and big toe dorsiflexion weakness with repetitive movements. He did not recommend a return to his prior occupation on a full-time basis. He believed that Mr Warn had made a good recovery, considering the severity of his initial injury, and that there was scope for full‑time employment, in a less physically demanding role. His opinion was that the treatment and surgery were direct results of his workplace injury.

In evidence, Dr Kern explained that spondylolisthesis was a weakness of the two bones that play a role in connecting the L5/S1 final segment and it was likely a congenital problem. People with the condition were more vulnerable to injury. He further explained that the nerve roots at L5 and S1 would usually be about 2 cm apart, but in Mr Warn's case were conjoined, meaning that if any mechanism caused them pressure they were unable to avoid it by slight movement. Any pressure on the nerve would therefore be more severe and the nerves more be vulnerable to injury. Injury to these nerves affects the sensation, power and strength of the leg. The spondylolisthesis was more relevant to back pain. Dr Kern said that he had never seen these two conditions occurring in combination in one patient. It was an unlucky coincidence that Mr Warn had both these abnormalities.
Mr Kelwyn Yeo was employed by Star Injury Management. He is an occupational therapist. He was engaged to facilitate Mr Warn's rehabilitation and return to work from November 2013 to May 2016. Some 22 reports were tendered at trial without objection. These documents were produced for the purpose of detailing the steps taken in rehabilitation and the consultations involved with all service providers in Mr Warn's case. In my view, they were in this form particularly unsuitable for forensic purposes. They contained a repetition of the history, some of the opinions of medical specialists and other matters of barely discernable relevance. A succinct summary was all that was required to present the factual history of rehabilitation, what Mr Warn was able to achieve, and what his instructions were.
Mr Yeo visited the premises, assessed the demands of the job Mr Warn had been doing and recommended that he avoid operating the Robo 45 or Robo 60 on a permanent basis, due to the manual handling required. His assessment was also of the 'standard' method of operation by reference to the operating guidelines. In April 2014, he made recommendations for a gradual return to work in light of Mr Warn's then condition, which was 'fit for restricted duties'. Best Bar agreed to provide office duties. The workplace restrictions set out in his report at that stage were extensive, and effectively precluded any physical work. Mr Warn's home was assessed and recommendations made for aids to assist him there. A case conference was held with Mr Warn's GP, wife, and a Best Bar representative. A return to work program was drawn up for July 2014. It involved 4 hours per day two days a week, effectively giving Mr Warn light duties compiling records and administrative assistant tasks. There were restrictions: no lifting (1 kg), avoiding repetitive bending lifting twisting, no prolonged standing, sitting or walking. It was recorded that Mr Warn coped with this program and it was recommended that it continue, together with Mr Warn's exercise program.
Thereafter, he continued on restricted duties operating the console and performing administrative duties, until he experienced a flare up in his symptoms in late November 2014. He subsequently returned to work in 2015, on restricted duties, but he was suffering significant pain and other symptoms. He was confined to office duties. He had further surgery in May 2015. It appears the return to work program recommenced in August 2015. He continued working two days per week for four hours into 2016, increasing to three days per week of four hours per day. The program then scheduled increasing days and hours, subject to medical approval.
Mr Yeo's personal involvement ceased when Mr Warn was made redundant in May 2016. Other employees of Star Management took over to assist him with preparing his resume, job applications, and otherwise preparing him to re‑enter the workforce. Mr Warn was found to be confident in his abilities to make job applications and was advised how to discuss his physical restrictions with prospective employers.
It is notable that the jobs that Mr Warn applied for were all driving jobs, which Mr Yeo confirmed did not comply with his recommendations for restrictions on Mr Warn's physical activities.
There was no challenge to the evidence of Mr Yeo.
Mr George Wong reviewed Mr Warn in November 2013. His report was tendered without objection. His diagnosis was persistent right sciatica due to conjoint nerve root compression. He also recommended fusion surgery and was of the opinion that Mr Warn should not return to heavy manual work.
Dr Heather Campbell, an occupational physician, reviewed Mr Warn in June 2014. She took no issue with the diagnosis or treatment of Mr Warn to that point. She thought that he could do some office work but did not believe he was fit for full‑time employment at that point due to his symptoms and long absence from work. In her view he would need gradual reintroduction to his duties.
In December 2015, Mr Warn was reviewed by Dr Mary Wyatt, consultant occupational physician, with no dissenting views expressed by her on Mr Warn's condition or the treatment he had received.
On examination she found his range of motion of the back was limited. Forward bending reach was fingertips to just above his knees, moderately restricted extension, and minor restriction of lateral flexion and rotation bilaterally. There was no evident muscle spasm. There was reduced ankle reflex on the right, but no loss of power detected in the legs. He had tenderness over the sacral region centrally. Her prognosis was that his situation would improve, but he was expected to have long term back pain and continued symptoms in his right leg.
Her opinion was that he needed to remain on restricted duties but increase his hours gradually. Appropriate restrictions were to avoid forward bending, be able to change position avoid manual handling and static posture. He needed continued rehabilitation.
At that time, he was still recovering from the third surgery but her opinion was that most likely his job would be too manually demanding for his back problem. He needed to explore other work options and might require retraining.
Five certificates under the Workers' Compensation and Injury Management Act 1981 given by Dr David Kennedy were tendered. They reported on Mr Warn's condition at various points in time. On three occasions, it was the doctor's opinion that his condition was not yet stabilised, and on a further two, both dated 18 June 2015, it was certified that there was a degree of whole person impairment of 28%. These documents were not referred to in evidence or submission after their production. It was admitted that Mr Warn's impairment was over 25%.
Radiologists Dr Anthony Bartley and Dr Weng Chin contributed X‑ray reports, neither of which were directly referred to during the trial. A further radiologist, Dr Gavin Watson wrote a letter confirming that fluoroscopy had been provided in theatre for Dr Kern. I have no idea why this latter document was tendered.
The significant and undisputed dates emerged as follows:
Chronology
26-06-81Mr Warn born
14-01-08Starts work at Best Bar
20-05-13Accident at work [final date]
27-05-13Original date pleaded
31-05-13First medical consultation
10-06-13Return to work
20-06-13First workers' compensation claim
16-07-13Consults Dr Liddell
01-07-13Return to work, restricted hours
14-08-13First surgery, Dr Liddell
25-09-13Return to work, restricted hours
13-11-13Consults Dr Kern
09-12-13Second surgery, Dr Kern
-- -04-14 Return to work, restricted hours
11-05-15Third surgery, Dr Kern
-- - 08-15Return to work, restricted
18-05-16Redundancy
18-08-16Workers' compensation exhausted

Mrs Warn

Mrs Natalie Warn gave evidence of the effects of the accident and her involvement in assisting her husband in his care and rehabilitation. She impressed as a down to earth and sensible woman.

The law

Best Bar owed Mr Warn a non-delegable duty to take reasonable care for his safety and to provide a safe work environment. There was no dispute that this was the position at trial. However, that duty is not absolute. It is subject to the overarching principle of reasonableness.
In Transfield Services (Australia) Pty Ltd v Wieland [2014] WASCA 41 [18], a case relating to the respondent falling down four steps at work, Pullin JA said:
There is no doubt that the employer has a duty to take reasonable care for the safety of its employees. The obligation is to take reasonable steps to provide a safe place of work. The duty is that of a reasonably prudent employer and the duty is not to 'safeguard a worker completely from all perils': see MR & RC Smith Pty Ltd t/as Ultra Tune (Osborne Park) v Wyatt [No 2] [2012] WASCA 110 [156]. The response to a foreseeable risk is to be judged by the criterion of reasonableness, and not some more stringent requirement of prevention: Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; (2007) 234 CLR 330 [69].
In MR & RC Smith Pty Ltd t/as Ultra Tune (Osborne Park) v Wyatt [No 2] [2012] WASCA 110 [155], a case relating to a respondent slipping on a step which the respondent had used many times before and which had been used regularly on countless occasions every working day for many years without incident, Murphy JA said:
155.Absent statutory provision to the contrary, an employer owes a common law duty to its employees to take reasonable care for their safety: Andar Transport Pty Ltd v Brambles Ltd [2004] HCA 28; (2004) 217 CLR 424 [34]. The duty includes an obligation 'to take reasonable steps to provide … a safe place of work': Kondis v State Transport Authority [1984] HCA 61; (1984) 154 CLR 672, 680.
156.The duty is 'that of a reasonably prudent employer': Hamilton v Nuroof (WA) Pty Ltd [1956] HCA 42; (1956) 96 CLR 18, 25; Bankstown Foundry Pty Ltd v Braistina [1986] HCA 20; (1986) 160 CLR 301, 307 - 308. The duty is not to 'safeguard a worker completely from all perils': Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; (2011) 243 CLR 361 [19] per French CJ and Gummow J (although their Honours were in the minority, I would understand their observations to be consistent with the law as formulated and applied by the majority).
157.The duty to take reasonable care requires an employer to take reasonable care to 'avoid exposing [its employees] to unnecessary risks of injury': Czatyrko v Edith Cowan University [2005] HCA 14; (2005) 79 ALJR 839 [12]; Hamilton v Nuroof (25). The standard of care is not a low one: O'Connor v Commissioner for Government Transport (230).
The existence of a foreseeable risk of injury does not dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors: Wyong Shire Council v Shirt (1980) HCA 12; (1980) 146 CLR 40, 47 ‑ 48 (per Mason J).
The test for foreseeability must not be performed in hindsight. In the Shire of Gingin v Coombe [2009] WASCA 92, a case in which the respondent suffered personal injury while participating in an inherently dangerous recreational activity and sought to recover compensation for those injuries from the public authority in control of the site on the basis that the authority breached a duty to warn him of the dangers involved in that activity, Martin CJ spoke of the hindsight bias [43]:
Much has been written on the subject of what cognitive scientists would call 'hindsight bias' - such as the unavoidable tendency of bringing to account the fact that something has occurred when attempting to retrospectively evaluate the likelihood of it occurring.
The dangers and consequences of hindsight bias have been recognised by the High Court in a number of cases. In Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434, Gleeson CJ observed:
There is an aspect of such a question which may form an important part of the context in which a trial judge considers the issue of causation. In the way in which litigation proceeds, the conduct of the parties is seen through the prism of hindsight. A foreseeable risk has eventuated, and harm has resulted. The particular risk becomes the focus of attention. But at the time of the allegedly tortious conduct, there may have been no reason to single it out from a number of adverse contingencies, or to attach to it the significance it later assumed. Recent judgments in this Court have drawn attention to the danger of a failure, after the event, to take account of the context, before or at the time of the event, in which a contingency was to be evaluated. [16]
The need to guard against hindsight bias is relevant to the consideration of foreseeably in this case.
I do not propose to consider the OHSA, as the statute does not impose any greater or more stringent duty here than the common law duty of an employer to act reasonably in relation to the safety of employees. This was conceded by counsel for Mr Warn in closing submissions.

Issues to be determined

From all this, the following questions emerge:
1.What was Mr Warn doing on the morning of the injury?
2.Was this a normal way of working in these circumstances?
3.Was he properly trained?
4.Was there a foreseeable risk of injury in what he was doing?
5.Did Best Bar know what he was doing?
6.What would a reasonable employer do in those circumstances?
7.Did Best Bar breach the common law duty to take reasonable care?
8.What is the extent of his continuing incapacity?

Evaluation of liability

In matters of safety, the duty of an employer is to take reasonable care not to expose workers to foreseeable risks. The statement of this duty, in principle, was not in issue, the application of it, in assessing whether there was a breach of duty is a different matter.
Prior to the evidence of Mr Warn, the precise work which Mr Warn was doing on the day he was injured was obscured in the proceedings by limited detail in his statement to the investigator, the general formulation of particulars in the pleadings, and the apparent lack understanding by all parties of when the accident had occurred. On reading the medical and other reports it was notable that many dates were given on different occasions. It was also pleaded that he had been 'required' to physically lift the bars out of the machine because they were short in length' (statement of claim, original particulars (c) and (d)). This is far from informative, as it raises questions of who required and in what circumstances. Records for the jobs done in the days around 27 May 2013 did not show work of the kind Mr Warn described on the Robo 45, or indeed that he was working on this machine at that time.
Mr Kopacz was the occupational health and safety officer to whom Mr Warn reported his injury, although Mr Warn first went to Mr Edwin Van der Hoff, who directed him to return to work after 'smoko'. Mr Kopacz was then to talk to Mr Warn. Mr Van der Hoff spoke to Mr Warn a short time later to advise Mr Kopacz was delayed, but Mr Warn's evidence was that he spoke to both men. Mr Kopacz was not called to give evidence. The inference which it was argued should be drawn from Mr Warn's evidence is that Mr Kopacz and Mr Van der Hoff knew what Mr Warn had been doing prior to the accident and how he had been operating the machine.
Mr Ackland's report, (exhibit D7) and the demonstration video (exhibit D5), make it clear that the 'standard' method of operation does not require the manual lifting of bars, rather they are raised up, after bending, by the 'kickers' of the Robo 45. They slide towards the operator who handles them at waist height to turn and place them on a trolley behind him. Mr Ackland notes that the operator thereby maintains an upright posture at all times, that there is minimal bending or twisting of the trunk and there is no need to lift the bars. He said that moving the bars at waist level close to the body was not excessive and represented good manual handling principles. From this it can be concluded that the method Mr Warn did not use was safe.
There was no evidence from Mr Ackland, or any other witness save Mr Warn, which addressed the method actually used by Mr Warn. There was no direct evidence that Best Bar knew of the method employed by Mr Warn on that morning. It is equally the case that there was no evidence to contradict Mr Warn's assertion that this was a recognised mode of operation of the Robo 45.
The method Mr Warn used lined the bars up by pushing them back against the second arm or 'kicker', which was facing the operator, instead of leveling them against a metal plate designed for that purpose on the bending table, in front of the operator. The plate automatically retracts when the machine begins the bending process, as can be seen in the DVD. In both procedures the bars would then be bent automatically. Mr Warn's evidence was that in using the machine in his way, it was not possible to use the kicker to raise the bars up and out of the machine after the bend. He said that the ends of the bars would become tangled. Hence the operator had to lift them out before placing them on the trolley.
From the DVD of the operation, it can be seen that the bars are bent at about waist height around a mandrel on the end table near the operator and console. If they were not raised up and pushed towards the operator using the kickers as in the 'standard' method, they would need to be lifted high enough to clear the mandrel around which they had been bent. This does not appear to be more than about 25 cm from the DVD and the diagram of the Robo 45 (exhibit P153). Further, the trolley has 'posts' to hold the bars in position on it, which bars must be lifted over, which Mr Warn said were about 300 mm in height.
Counsel for Best Bar tendered documents evidencing the jobs done on 20 May 2013 on the Robo 45, Mr Warn's identifying 'barcode' or number which showed when he clocked on to a machine and the report of Mr Ackland.
No witnesses were called at trial for Best Bar, notwithstanding that the names of Mr Kopacz, Mr Van der Hoff and a Mr Lee Sinclair appeared on the list of witnesses filed by solicitors pursuant to the Rules of the Court. Mr Ackland's report shows that Mr Kopacz was responsible for overseeing the demonstration given.
Mr Warn was cross‑examined about the method he used. He was firm that the way he was working was one of the modes in which the Robo 45 could operate. He said it was a 'single bend mode'. He said that the way in which the DVD demonstration showed it operating was the method for a double bend. (The Robo 45 has two bending tables which can operate simultaneously on a bar over a distance up to 12 m). He maintained that he used it in the way he did because this was how he found the machine when he started his shift. He also maintained that this was the mode used for short bars. He agreed that the normal mode had to be used for longer bars. He was reluctant to concede that 4,275 mm length he would have meant resetting the machine.
He agreed, having seen the job records of his work on 20 May 2013, that he reset the machine to deal with different length bars, and that this took as long as it took to type in the dimensions. He agreed he could have set it up in the 'standard' manner but asserted that he used the way 'that it was done' with short bars. He said he changed the lengths of bars and bends, not the set-up of the machine.
In cross‑examination, it was not suggested that he was not working in the way he described, nor was it directly put to him that he should not have used the machine in this way. Without being critical, Mr Warn was not an articulate witness. He had difficulty describing a process with which he was very familiar, to people who had no idea about the work he was doing. When he was first cross‑examined, he had the unfortunate experience of being presented with the wrong job cards and being challenged on the basis of them. It is understandable that Mr Warn found the evidential process difficult and that he was defensive at times.

Whether the bars were lifted by machine or by hand, it would seem that the bent ends might shift as they were freed from the mandrel on the bending table. This issue is referred to in the operating instructions (exhibit P148), where it is advised that the bar ends may have to be held. The benefits or otherwise of the method under consideration in this trial were not considered by Mr Ackland at all.
However, it remains the case that Mr Warn determined that it was appropriate he use the method he described and that he lifted the shorter bars manually on that morning. I find that this was something he was accustomed to do, and that he had no difficulty performing until the accident.
It is relevant to consider how many such bars he handled and the weight of them.
The job cards (exhibit D4) show that on the 20 May 2013, he performed a total of 13 jobs on the machine. Between 06.32 and 08.16 there were 9 jobs involving various lengths given in millimeters: 1,950, 4,275, 4,225, 3,425, 3,375, 2,100, 1,825, 1,675 and 1,625. After 9.00 am, there were four jobs containing bars of other lengths: 1,600, 1,600, 2,200 and 2,200. I accept that Mr Warn stopped work at about 8.15 am due to the pain in his back. That time is consistent with the time of injury on the original claim form, and a two‑hour period working prior to the first break of the day.
The job contained differing numbers of bars, varying from 6 to 34. The longer bars were fewer in number, the shorter were more numerous. They were all of 20 mm diameter, known as 'N20'. Steel bars of this diameter weigh 2.47 kg per metre (Ackland report page 4, exhibit D7). Bars of 4,275 mm therefore would weigh 10.56 kg each, whilst the 1,600 mm bars weighed 3.95 kg each.
Mr Warn's evidence was that the Robo 45 was already set up for shorter bars when he logged on that morning. There was further difficulty with documentary evidence of how the machine was left by the previous shift, and in the end there was no proof of this.
The impression given by Mr Warn was that he was working repeatedly on short bars for an uninterrupted period of two hours before smoko that morning. The amended particulars of negligence assert he worked for 1.5 hours to 2 hours. Counsel for Best Bar referred to the accident, in written opening submissions, as a 'repetitive strain' type injury, none of which are previously established by the detailed evidence.
There were various jobs to be fulfilled, as can be seen from the job cards (D4). Immediately prior to 8.15 am, the last four jobs contained 12, 22, 22, and 22 bars respectively - a total of 78, which were getting progressively shorter in length: 2100, 1825, 1675 and 1625 mm
The first job of that shift involved bars of 1,950 mm, which Mr Warn classified as short bars. It is difficult to accept that the following four jobs would have been handled in the manner described by Mr Warn – they were much longer bars, as the numbers above demonstrate. They would therefore have been heavier and logically harder to handle.
According to Mr Warn, the Robo 45 can be reset to work in either method, without difficulty. It is possible that the machine was reset for those longer bars to the 'standard' method. If that is so, Mr Warn must have reset it back again for shorter bars. If he did not reset it, the bars and manner of his lifting them would be of great concern, the degree of concern depending upon how many were bent each time. His evidence was confused on this. He agreed that he changed the lengths of the bars to do these jobs, but if that means he still used the manual method, it would be surprising. His evidence gave the strong impression that he used the machine in the way it was set up when he started for the whole period: ie manually lifting the bars.
Because there were significantly more shorter bars than longer bars, he would have done many more bends on shorter bars that morning, four or five at a time. Whatever the position with the longer bars, that is certainly what he did immediately prior to his injury.
Mr Warn was not a good historian. He had difficulty with dates and details. That is generally understandable given the passage of time, his education and work history. The lack of precision as to the date of the accident, and the difficulty this caused in correlating his work to the documentation, made assessing the course of events that morning problematic. It was not however disputed that there was an accident which occurred on 20 May 2013.
I am satisfied that on the morning of the accident, immediately prior to the accident, Mr Warn had bent shorter bars in lots of four or five individual bars. These amounted to between 13 and 19 operations involving lifting the bars onto the table, depending on whether they were grouped in 4 or 5 lots. The weight of these bars would vary depending on length and whether it was four or five that were bent together. The weights had to be between 12 kg and 20 kg per lift. Mr Warn did not describe having any difficulty in performing the work until one lift caused him pain. He was clearly of the view that what he had been doing complied with his training, was within his capacity, and a 'normal' operation on that machine. The fact that he did not think he was doing anything untoward points strongly to this operation being a known and accepted practice.
It is clear from the medical evidence that his spine had two unusual vulnerabilities, of which he was unaware, even after the accident occurred, and that he suffered a disc protrusion.
There was no direct evidence as to the actual knowledge of Best Bar as to what Mr Warn was doing, whether Best Bar had given any instructions about this (non‑standard) use of the machine, or whether any assessment of it had been done by anyone.
One would expect that training for this type of work would include the full spectrum of work to be performed. The evidence was that Mr Warn received on the job training, working with another operator when the he started work there. There is nothing wrong with training of this kind, so long as it covers all practical aspects and variants of the work. Mr Warn in evidence and in his statement expressed the view that he was complying with his training and procedures and could not have done otherwise.
The work instructions for the Robo 45 were tendered in evidence (exhibit P148). They comprise the machine set up, the pre‑start testing and the process. They refer to the ends of the bars needing to be held and steadied (page 3 of exhibit P148). There is no indication of a method using the Robo 45 with the 'kicker' arm as a stopper, rather than the dedicated end plate.
The defence position was that there was no evidence that the method adopted by Mr Warn was unsafe or a risk to an operator of the Robo 45. It was not asserted that Mr Warn was working contrary to specific instructions or that he his negligence contributed to the accident.
The arguments for Mr Warn were that he was working contrary to the proper operating instructions on the machine, that the risk of harm was foreseeable and easily remedied. It was submitted that he should have been instructed only to use the Robo 45 in the 'standard' manner or to use a manual machine to bend short bars, although it is unclear how that would have prevented him lifting bars. It was submitted that Mr Warn was sent back to continue working in the same way and this was also a failure to take reasonable care and provide a safe system of working to avoid exposing Mr Warn to unnecessary risk of injury. By the time he returned after smoko, the damage was done, and there is no suggestion of further injury having occurred thereafter. Thus this circumstance can only be relevant to the 'normality' of what he was doing.
Best Bar employed both Mr Kopacz and Mr Van der Hoff. The failure to call them to give evidence in these circumstances leads me more readily to accept Mr Warn's evidence as to the common use of the Robo 45, as he described. I conclude that these men could not have assisted the defence of this claim if they had been called: Jones v Dunkel (1959) 101 CLR 298.
It must remain a mystery why Mr Kopacz facilitated Mr Ackland's assessment of the Robo 45 working in a manner other than that used by Mr Warn on the day of the accident, and further that Mr Ackland did not assess what he must have understood, from the information he possessed, to be the way in which Mr Warn was working.
I take into consideration that Mr Warn did not present as a man who thought he was doing anything out of the ordinary. He thought he had complied with procedures. There is no evidence of Mr Van der Hoff expressing surprise or reprimanding Mr Warn. Mr Kopacz came by and also spoke to Mr Warn. The job cards confirm that he worked on short bars after smoko. It was not suggested otherwise. All this evidence points to Messrs Van der Hoff and Kopacz being aware of what he was doing and how he was working. It was not put to him that he was acting contrary to specific instructions, or that this method was adopted in secret. In the absence of any evidence that contradicts Mr Warn, I conclude that his method of working was known to Mr Van der Hoff and Mr Kopacz, thus to Best Bar, and was an accepted method of working on the Robo 45 in the circumstances Mr Warn described.
I found Mr Warn to be generally honest witness, but with limited recall of the details of the morning of the accident. He had difficulty in explaining things and was frustrated by this. He was understandably reactive when cross‑examined on the wrong documents. I am satisfied on a balance of probabilities that he was working that morning using a known and accepted alternate method on the Robo 45. I find that it is more likely than not that his 'on the job' training would have included the 'short bar method'. I find it highly improbable that he would have devised such a method himself. I am satisfied that he experienced no obvious problem working in this way or lifting the shorter bars. I can come to no conclusion as to precisely how he handled the long bars that morning and do not accept he had an actual recall of working on them at all.

Conclusions on liability

Mr Warn bent between 13 ‑ 19 bundles, each of four or five bars 1,600 mm and more in length prior to the accident. I find that his manner of using the machine was contrary to the standard operating instructions. Mr Warn repeatedly lifted numbers of bars manually out of the machine before turning to put them on the trolley.
The danger of back injuries resulting from lifting heavy items is so notorious that, in my view, no expert evidence is required to establish that there is a foreseeable danger in doing so. Repeated actions are likely in a factory processing large orders for reinforcing bars which are to be bent. Turning with the bars also increases an obvious risk of injury. It is no answer to say that Mr Warn was a big strong man, and that the bars were relatively light. This was an industrial process, using a powerful and sophisticated machine, with established and detailed operating instructions, which, if applied, would have reduced the risks of injury. I conclude that there was a foreseeable risk of injury in the system of work adopted by Mr Warn.
Back injuries can be anything from a mild, short lived muscular strain to seriously debilitating structural damage to the spine. Reasonable care calls for at the bare minimum an assessment of a risk to limit the chance of the occurrence and the extent of any injury.
Back injury is not a risk perceived here only with the benefit of hindsight in these circumstances: manual lifting of weights is known to cause injury. To lift one or two bars may be minimal risk if performed occasionally, but wherever lifting is part of work requirements, a careful assessment of the degree of the particular risk is called for in order to set weight limits, prescribe methods and provide assistance if necessary to employees.
The Robo 45 was a machine designed to do the heavy work of bending bars of varying sizes, in an automated and controlled fashion, without the operator being required to manhandle heavy bars. That is the context of this accident.
If it were known that certain bars are to be lifted manually, which I have found to be the case, reasonable care would include an assessment of a number of things: when the 'manual lifting' method was to be used; how great a weight an operator might safely lift; identifying weight limits based on the dimensions of bars and numbers of bars, consideration of whether there was a simple way to obviate dangers, perhaps by using the kickers differently, or having some other device to lift or an offsider available where this method was used. None of these steps would be particularly difficult or expensive.
There is a no evidence of any consideration of these issues by Best Bar. The witnesses who might have spoken of the parameters or instructions given, particularly the OHS officer Mr Kopacz, were not called.
As I have found that Best Bar knew of this practice, which was contrary to the instructions for the use of the Robo 45, the complete absence of any instructions or limits in its use, any warnings of its dangers or any assessment of the practice establishes a failure to take reasonable care for the safety of workers using the Robo 45.
It is undisputed that what he was doing injured Mr Warn's back. Reasonable foreseeability of a risk of injury marks the extent of liability in tort where causation is established: Wyong Shire Council v Shirt (47 ‑ 48). I find that it was reasonably foreseeable that a back injury could result from this kind of lifting and twisting. It is not necessary to foresee the precise mechanism of injury: Chapman v Hearse (1961) 106 CLR 112; Mount Isa Mines v Pusey (1970) 125 CLR 383. This was a severe injury. Another worker might have suffered a milder back strain. The fact that he might have been more vulnerable to injury in this physical work does not relieve his employer of the duty to take reasonable care, nor in these circumstances does it render some form of back injury unforeseeable or too remote to require actions by a reasonable employer.
I conclude that pars (f) and (g) are made out of the amended particulars of claim. Most crucially par (f) alleges Best Bar 'failed to assess the risks involved and/or warn the plaintiff of the risks involved in carrying out the task in a manner that required him to physically lift the bars out of the machine'. Having not considered what was being done or how it was being done, it can also be said that particular (g) is made out in not providing 'adequate equipment so as to allow the plaintiff to carry out the task safely and avoid having physically to lift the bars out of the machine'. Particular (e) is widely drafted, but in as much as it is an allegation of failure to instruct or supervise adequately it is also made out.
Therefore, I find that Best Bar breached its common law duty to take reasonable care for the safety of Mr Warn, by failing to assess the risks involved in the 'short bar method', to give appropriate instructions and training in the light of those risks and/or provide other lifting assistance whether mechanical or human.

The consequences of the accident

There was no dispute that Mr Warn suffered the injuries described as a result of the accident at work. There was no dispute about the nature or consequences of the injury or the treatment for it.
Mr Warn described his difficulties after the first surgery in August 2013 and the help his wife had to give him. He was quite reticent, but he was unable to put on his shoes or dry himself. His wife drove him and did everything for the children and at home. He had pain in his back and pins and needles in his right foot.
After that he was at home for a few weeks before returning to work on limited duties. He was still in pain, even after the post‑operative period, taking Lyrica, Panadeine Forte, Panadol Osteo, and Naprosyn. He felt that the back was a bit better but that he was still in pain.
After his second surgery, he again needed his wife's assistance with his personal care and driving, as after his first surgery. He said that this was for two to three months.
He reported that he was provided with a recliner chair, but no other aids at home. He returned again to work on restricted duties until he aggravated his back doing some exercises, to the extent that he could not get up at all without his back spasming. He was in a lot of pain. His wife did everything for him for a period. The spasming went on for a couple of months.
Apart from this aggravation, he continued working on the restricted duties and limited time programme, although he was still suffering pain and foot drop problems. He said that, after the surgery in May 2015, he felt a lot better, the pain was less although the foot drop was still evident. He said he tended to get more of a limp if he was standing or walking for long periods, and pins and needles with sharp pains through the bottom of his foot. He recovered from the surgery at home with the assistance of his wife who he said helped him a couple of hours per day, apart from running the household. He then went back to work until he was made redundant. He received a redundancy payment.
He continued to receive workers compensation payments until August 2016.
After his redundancy Mr Warn made many applications for jobs as a delivery driver or truck driver, because such duties he said would give him an opportunity to sit and stand during the day. He said he had made between 50 ‑ 100 applications and had very little response. The only job he was immediately offered was withdrawn when he told them of his injury status. He continues to take Panadol Osteo and Panadeine Forte as required for pain, with one Naprosyn every morning. He continues to do physiotherapy and hydrotherapy at the Mandurah Aquatic and Recreation Centre.
He said he was not up to kicking a ball with the children but was watching them. He felt unable to assist with coaching. He had difficulty walking for more than 15 minutes due to his leg symptoms. He clearly missed 4-wheel driving and beach fishing with his friends. He said it was just too rough for him.
He said that before his injury he had planned to work until normal retirement age. He had lost contact with work mates when he was so restricted and 'shut himself away'. He felt depressed and down about the injury, although he had not seen a psychiatrist. He said 'you feel useless and you just feel like you cannot get involved in things because of your restrictions'. He described still having trouble sleeping or waking up in pain and finding it hard to sleep again.
Mrs Warn was 33 at the time of trial and mother to three children, boys aged 13 and 7, and a baby girl of 21 months. She described Mr Warn before his accident. He was a father who interacted with his children a lot, did things around the house and garden, took the children to sporting events, coached the boys' sport, kicked a ball: 'just normal dad stuff' she said. He was sociable, had a group of friends, went out with them fishing and 4-wheel driving. He went to the gym 4 or 5 times a week and walked a lot. On the home front, she did most of the work indoors, and he attended to everything outside. She confirmed his recycling activities, which brought in a little extra cash.
On the day of the accident, he came home that afternoon in a lot of pain but he went to work the next day, on lighter duties. She said he had some time off and then again returned to work. It appeared to her that he got worse as time went on. Before his first surgery she had to help him with many things, showering, dressing, helping him up, which she estimated engaged her for half an hour a day. After the first surgery he needed a lot of help with personal care. He could not drive for six weeks. He suffered the foot drop which meant his leg had to be exercised each day to get him moving. She estimated that for the first four or five weeks she would have helped him four to five hours a week. Then things got easier. She was responsible for all the home duties. She described him as withdrawn, even with her and the kids.

After the second surgery she assisted with everything including wound dressing, personal care and exercises. She estimated the hours involved as similar to the period after the first surgery. She confirmed that he returned to work on restricted duties, and that he did rehabilitation as recommended. He was unable to do his out of work activities and their matrimonial life suffered. She drove him to appointments and over long distances. He suffered a serious aggravation of his back whilst doing some exercises and spent over a month sleeping in a reclining chair, because it was less painful. He suffered severe muscle spasms at this time. In this period he could hardly get out of the chair and she had to assist him with everything. She estimated she was engaged 3 - 4 hours a week for about six weeks helping him at this period.
He recovered after this aggravation and returned to his work rehabilitation, but he was still in a lot of pain. After the third surgery, she again assisted him but said this time it was less - maybe 2 – 3 hours a week as he was getting a lot more mobile. She described him as progressing really well, she said that it took him time to realise what he could do and gain confidence in doing things. He started to get out more and resumed more tasks at home. He was still troubled with foot drop, pins and needles in his right leg and loss of control of that leg. However, he was fishing from the jetty, but not beach fishing and not 4‑wheel driving. He was able to mow the lawn on the flat and attend the children's sports again. Their sex life had improved and he was happier in himself, she believed. He still seemed to suffer pain but got on with things.
She said that the injury and all that followed had had a huge effect on their relationship and been a massive strain, particularly considering that their daughter was only 2 weeks old when her husband had his second surgery.
She believed her husband was socialising more and getting out more. She encouraged him to do so.
Mrs Warn was an impressive witness and clearly a competent practical woman. My impression was that she underestimated the time that she had actually spent assisting her husband. However, with three children and a house to run, she probably was not recording the work involved.
Her evidence confirms that Mr Warn was an active fit man before the accident, with a full family and social life, which has been seriously curtailed by this injury and treatment. I conclude that he was only beginning to regain confidence in his abilities and to rebuild his life, albeit with limitations, at the time of trial.
Many documents were tendered relevant to Mr Warn's financial losses, his qualifications and workers' compensation. None of these were controversial. A notice of agreed facts set out the financial matters agreed for the purposes of the calculation of economic losses.

Damages

It is well established principle that a defendant must take the plaintiff as he finds him, both physically and psychologically. This is generally referred to as the 'egg shell skull' rule: Dulieu v White & Sons [1901] 2 KB 669. There are numerous reported cases giving examples in particular where back injuries have aggravated latent conditions: Cameron v Sullivan [1962] QWN 32; Taylor v Tuesley [1963] QWN 15, including a Queensland case concerning spondylolisthesis Leotta v De Brincat [1959] QWN 1 as well as many other scenarios.
Mr Warn was unaware of his back's structure and there can be no suggestion that he was taking unjustifiable risks with it.
Although Mr Warn had two distinct problems in his spine which made his injury and treatment more significant and painful, Dr Kern's evidence was that Mr Warn's underlying condition was asymptomatic, but that he was more prone to developing an injury with significant physical work, due to the condition. He said that 'without the accident at work he would likely have remained asymptomatic': (report exhibit P13A).
Thus there was no evidence that Mr Warn would have developed similar symptoms inevitably had he not suffered this injury and disc herniation. This was not a degenerative condition of the spine, but a congenital one. Therefore there is no issue of acceleration of a pre‑existing condition to determine in this case.
I have to consider these matters in the context of the proper method of calculating damages generally and for loss of earnings specifically.
As detailed above, Mr Warn has undergone three significant spinal surgeries, with all the pain, inconvenience, dependence and rehabilitation that this entailed. He did not strike me as a man generally given to complaining. He was, however, visibly disheartened by his condition and the pain he had suffered. He is left with significant restrictions in his life.
His education and training have led him to be employed in physically demanding jobs and his recreational pursuits were also those of a fit and physical man. His current back condition means that such activities, even if possible to some extent, are contra indicated. He has a spinal fusion and I accept he suffers residual pain in his lower back and some ongoing sciatic symptoms. He will have restrictions on his physical activities permanently.
His options, both at work, at home and in recreation have therefore been significantly reduced and his enjoyment of life compromised accordingly. He is still a young man who would normally expect to enjoy a full life of these activities for many years. He will be unable to do heavy gardening or work around his home, and his ability to participate in sport with his children will be greatly restricted. He is deprived of the enjoyment of 4-wheel driving, fishing and the social interactions that go with these activities. He struggles to maintain a level of general fitness.
In all of these circumstances, my view is that the appropriate award of general damages is $135,000.
The unchallenged medical evidence was that Mr Warn was incapacitated from performing his pre accident duties, and had residual disabilities and restrictions. He had not achieved full time hours at Best Bar on restricted duties before he was made redundant. He had been unable to obtain any alternative employment up until the time of trial. Accordingly, I assess his past losses on the basis that he had been unable to earn any income from the accident until the trial.

Calculation of past losses

(a)Earnings
It was agreed at trial that those amounts paid as workers' compensation entitlements weekly payments up to trial were equivalent to his past losses. This was $221,891.01.
In addition, he had not obtained work at the time of trial and I will accept for this calculation that this continues to be the position. If that is so, his loss continues from 1 November 2016 to 2 February 2018, a total of 65 weeks. Future losses were claimed in submissions on the basis of a weekly net loss of $1143.87 per week. Using this rate for losses in the interim:
$1,143.87 x 65 = $74,351.55
Total past loss of earnings = $296,242.56

(b)Superannuation
Mr Warn claims employer superannuation contributions as past losses. They are not included in weekly payments of workers' compensation. The rates of superannuation were: 9% to 30 June 2014, Medicare 1.5%, 9.5% from 1 July 2014, Medicare 2%. The losses were calculated to the start of trial and the sum claimed was 17,913.43, after a 15% deduction for management fees. There was no dispute as to this deduction being proper at the present time in such calculations. I accept this figure, but to it needs to be added the loss post trial:
$74,351.55 x 9.5% = $7,063.40, less 15% deduction for management fees = $6,003.89.
Total loss of superannuation contributions = $23,917.32.

(c)Expenses, various
Rehabilitation, medical, and travel expenses to trial were agreed to be those sums paid pursuant to the workers' compensation entitlements. These are $16,413, $183,105.40 and $5,189.55 respectively.
I will allow further 65 weeks at the agreed rates for future GP visits and medications, which are $12.38 per week: $12.38 x 64 weeks = $804.70 plus a year's gym membership @ $720 = $1,524.70.

Past gratuitous services

Mrs Warn gave details of the assistance she provided to Mr Warn after his surgical procedures, from which his counsel calculated the time she spent to be no less than 132 hours to the date of trial. In my view, that is possibly a conservative estimate. The rate agreed for past services is $31 per hour. On that basis, the loss claimed to trial was $4,092.
I accept that Mr Warn continues to have such limitations as to require assistance from time to time with heavier household and garden tasks. Future losses were claimed at an hour per week at an agreed rate of $32 per hour. It is appropriate to include in his past losses 65 weeks at this rate, to the date of judgment, which amounts to $2,080.
Total past services = $6,172.

Interest

In respect of each head of past losses, I calculate interest at 3%, excluding payments made already pursuant to workers' compensation entitlements. Hence the interest is:
Earnings (post‑trial):    $74,351.55 x 3% x 1.23 = $2,743.57
Expenses (post‑trial):   $1,524.70 x 3% x 1.23 = $56.26
Superannuation:                   $23,917.32 x 3% x 4.7 = $3,372.34
G. services to trial:      $4092 x 3% x 3.3 = $405.10
G. Services post trial:   $2,080 x 3% x 1.23 = $76.75
Total interest:              $6,654.02.

Future loss of earning capacity

It does need to be remembered that this is an assessment of the loss of earning capacity, and not loss of earnings. An assessment of a loss of earning capacity does not strictly turn on a precise mathematical calculation. Earning capacity is an intangible asset and the assessment of damages for its loss is not an exact science. It is governed by considerations of practical common sense in the context of the facts of the particular case: Medlin v State Government Insurance Commission (1995) 182 CLR 1; Montemaggiori v Wilson [2011] WASCA 177 [28] (Buss and Newnes JJA). In Montemaggiori v Wilson the position was summarised at [30], [32] and [33]:
30.The plaintiff who seeks damages has the legal onus of proving loss of earning capacity and the extent to which that loss produces, or might produce, financial loss: Todorovic v Waller [1981] HCA 72; (1981) 150 CLR 402, 412; Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1, 3. If it is determined that there has been a loss of earning capacity it is then necessary, having regard to the established facts of the past and the probabilities of the future, to determine the damage that will flow from the loss of that capacity: Medlin v State Government Insurance Commission (19). As the plurality pointed out in Malec v J C Hutton Pty Ltd [1990] HCA 20[1990] HCA 20; (1990) 169 CLR 638, 643, when the law takes account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring. Unless the chance is so low as to be speculative or so high as to be practically certain, the court will take that chance into account in assessing damages. The inquiry - the process of estimation of probabilities - is thus an imprecise and indeterminate one to be carried out within very broad parameters: State of New South Wales v Moss [2000] NSWCA 133; (2000) 54 NSWLR 536, 553. Accordingly, damages for financial loss likely to result from personal injury can only be an estimate, often a very rough estimate, of the present value of the prospective loss: Todorovic (413).
32Where an injured plaintiff has suffered a loss of earning capacity, such as a total loss of capacity to earn in an occupation in which he has previously been employed, the court should do its best to place a value on that loss, even in the absence of evidence, or where there is uncertainty in the evidence, as to the availability of employment within the plaintiff's residual capacity or the amount which could be earned in such employment. Thus, for example, in Bowen v Tutte (1990) Aust Torts Rep 81-043, it was held that in the absence of any evidence of the availability of suitable employment for an injured plaintiff, or of earnings which could be derived from such employment, a trial judge may, in an appropriate case, assess the plaintiff's residual earning capacity at a percentage of his or her pre-accident earning capacity. And in Pene v Murphy [2004] WASCA 103, it was held that the appellant's loss of earnings should be assessed as a percentage of his pre-accident earning capacity as there were considerable uncertainties associated with his prospects of obtaining work within his residual capacity. But as the court made clear in that case, such an approach is not appropriate in every case; in the end the question is one of fairness.
33Once the plaintiff has proved that they have lost their pre-accident earning capacity and have been unable to find alternative employment, or that their condition has prevented them finding alternative employment, an evidentiary burden is cast on the defendant to show what alternative employment opportunities were open, including the state of the labour market and the likely earnings: Thomas v O'Shea (1989) Aust Torts Rep 80-251, 68,701 - 68,702; Setton v Eves [2006] WASCA 3 [27].
Mr Warn claims future losses of earnings on the basis of total incapacity, calculated to the age of 70, at the rate of pay of a machine operator, his occupation at the time of his injury. It is not disputed that this is $1,143.87 per week net of tax and Medicare levy ($1,498.19 gross). In closing submissions, counsel had calculated his loss using a 6% multiplier (772), to be $838,914.26. This is an arithmetical error, as the result should be on the given figures $883,067.64. He also sought superannuation losses of $85,106.13. No account was taken of his residual earning capacity in this scenario. A discount of 5% for 'contingencies' was applied in counsel's calculations.
At trial, it was apparent that Mr Warn had ongoing rehabilitation and retraining needs before he could return to any paid employment in the open market. I have already included, as a past loss, 65 weeks of lost earnings at this rate, to judgment, as a realistic period of further rehabilitation and adjustment.
There are potential difficulties with approaching the calculation of future losses precisely as contended for by counsel for Mr Warn. Firstly, the evidence shows that Mr Warn has a residual earning capacity, and secondly, given the demands of the job and Mr Warn's latent back condition, I consider it to be unlikely he would have worked to the age of 70 in that capacity.
The evidence demonstrated that he was able to do light office duties and data entry at Best Bar, for limited hours, as part of his rehabilitation programme. The evidence did not go so far as to be able to conclude he could do such work on a full time basis in other environments. It also showed that when he applied for alternative employment, after he was made redundant, he pursued driving work. From Mr Warn's background and training, I doubt that he would secure an administrative office job easily on the open market, and his applications show that he was not interested in that type of work. Driving work was not entirely consistent with recommendations given by Mr Yeo and Mr Warn had not had any opportunity to try such work.
There was no evidence of work that might be available and suitable for Mr Warn, whether from a labour market consultant or otherwise. Accordingly, the factual position is that Mr Warn had been unable to secure any form of employment in the six months following his redundancy. The evidence is that Mr Warn was capable of doing light office duties but not, at the time he was laid off, yet on a full time basis. There was no evidence of the earnings which light work would generate, on any basis.
I assessed Mr Warn as a man who would want to work and support his family, if at all possible. He is now 36. There was no evidence of any available employment that he could have taken up immediately or the range of work available to him. There was evidence that had made many job applications, without securing employment.
I am of the view that, in reality, Mr Warn will struggle to obtain and retain work suitable to his restrictions in the future. Obviously, there is no reason why he should not seek to obtain new skills, but there are many uncertainties for his success in the job market given his restrictions. His background was dominated by manual skilled and unskilled occupations. The fact that he was engaged in physically demanding work prior to the accident makes it unlikely that he would have enjoyed and uninterrupted exercise of his earning capacity to the age of 70, even if he did not suffer an injury. This consideration is independent of his spine, as many workers moderate their work load as they grow older, whether by inclination, or to avoid injury or because other opportunities arise.
In Pene v Murphy [2004] WASCA 103 [50], Heenan J said, about this particular difficulty:
Like Miller J, I consider that the evidence in this case was insufficient to support the conclusion that the appellant was capable of holding down a job as a light process worker at an average weekly earnings of $619.49 gross per week from May 2003 until retirement 22 years later. Such a conclusion leaves out of account all the difficulties which a man of the appellant's age and background would face when seeking alternative employment for the first time in a competitive labour market of which he had no prior experience. Equally, it leaves out of account the difficulties which the appellant would face if he were unable to retain a position as a light process worker and had to seek another position or positions in that field from time to time. It also leaves out of account the difficulties which he may be expected to experience because of his physical incapacity and all the complications which that might involve. These are factors which, in my opinion, must be recognised in order to make any valid comparison between the appellant's pre-accident earning capacity and his post-accident retained earning capacity. It simply cannot be imagined that there is no shadow existing over the ability of the appellant to maintain continuous employment as a light process worker from the date of trial until he obtains the age of 65 years.
Considerations of this kind have resulted in calculations reducing future losses by percentages for the retained capacity and/or reductions in quantum on the basis that there would be substantial periods of unemployment in the future.
Counsel for Best Bar submitted that Mr Warn's loss of earning capacity should be compensated by the award of a modest lump sum. I consider that this approach would fail to reflect the significant difficulties which he faces.
In my view, it is more probable than not that Mr Warn will obtain some work in the future. It is also improbable that he will sustain any physically demanding job and likely that he will have periods of unemployment even in lighter occupations. Thus, he is likely to suffer periods of unemployment or partial employment.
Taking all these matters into consideration, it is my opinion that the fairest way to assess the financial losses resulting from Mr Warn's injury is to take as a starting point the method of calculation proposed by counsel for Mr Warn, reduce the age of retirement to a more realistic 67, and apply 5% reduction for the 'standard contingencies'. To take account of my assessment that Mr Warn retains a modest earning capacity, and is likely to exercise it when opportunities arise, I will further reduce this sum overall. Doing the best possible on the available evidence, I consider that a further 25% reduction will reflect the reality of the loss of capacity that he has suffered whilst allowing for the reality that he has some retained capacity.
Thus:
Net weekly loss  = $1,143.87
Years in workforce to 67          = 31
Multiplier [6%]  = 748
$1,143.87 x 748   = $855,614.76
Less 5% contingencies            = $812, 834.02
Less further 25%  = $609,625.51

Future Superannuation

Mr Warn's pre‑accident occupation earnings gross are $1,498.19 per week. This results in a superannuation contribution of $142.33 per week. Applying the same multiplier and deductions as used above for earnings losses
$142.33 x 748 = $106,461.00
Less 5%= $101,138
Less 25%= $75,853.46.
From which is to be deducted a management fee of 15% resulting in $64,475 which I will allow for future losses of superannuation.

Other future losses

The medical needs claimed include a GP visit every three months, plus analgesic medications. In my view, this is entirely reasonable for monitoring his condition and medication needs. The costs of provision has been agreed as set out below and amount to a total of $12.38 per week.
GP visit @$80.00
Panadol Osteo $10 pcm
Naprosyn$11 pcm
Panadeine Forte $12 per 2 months
Mr Warn is now 36. His life expectancy is 50.24 years. The weekly multiplier for 50 years is 846.9. Thus the sum claimed was $10,484. I allow $10,500.
In addition, an annual visit to a neurosurgical specialist for the next five years was claimed, but there is no evidence to support the need for such review and I do not include an amount in this respect for the future.
Mr Warn claimed gym membership for the next five years @ $720 per annum which in my view is reasonable and something he should pursue. This amounts to $3,600 which I reduce by one year for the amount included as a past loss to $2,880.
There will be the need to travel to medical appointments and a global $500 is claimed. I accept this is not unreasonable.

Future gratuitous services

A claim was made for assistance with heavy home tasks from time to time, at an average of one hour per week. This is entirely reasonable and should be included. The agreed rate was $32 per hour. Calculated over his life expectancy, with a multiplier of 846.9, the total is $27,100.80.

Summary

General damages  $135,000.00
Past economic loss (paid)  $221,891.01
Loss from trial to judgment  $74,351.55
Superannuation past  $23,917.32
Gratuitous services – past  $ 6,172.00
Past medical expenses (paid)  $183,105.40
Expenses medical and gym since trial   $1,524.70
Past rehabilitation (paid)  $16,413.26
Travelling, past  $5,189.55
Interest$6,654.02
Future loss of earning capacity  $609,625.51
Future superannuation  $64,475.00
Future medical expenses  $10,500.00
Gym membership (4 years)  $2,880.00
Future travel  $500.00
Gratuitous services - future  $27,100.80
Total$1,389,300.12

Conclusion

There will judgment for Mr Warn in the sum of $1,389,300.12 and I will hear counsel as to any consequential orders.