Williams v Metcash Trading Limited - [2017] NSWDC 154

District Court

New South Wales

Medium Neutral Citation: Williams v Metcash Trading Limited [2017] NSWDC 154
Hearing dates: 7 to 11 November 2016; 30 November 2016; 1 December 2016; 1 to 2 March 2017; 26 May 2017
Date of orders: 23 June 2017
Decision date: 23 June 2017
Jurisdiction: Civil
Before: Dicker SC DCJ
Decision:
(1) Judgment for the defendant.
(2) The plaintiff is to pay the defendant’s costs of the proceedings as agreed or assessed.
(3) The parties have leave to apply on two business days’ notice to vary the costs order in (2) above.
(4) Exhibits are to be returned after 28 days.

Catchwords: Torts – negligence – workplace injury - whether defendant provided a safe system of work – whether shelf height posed an unreasonable risk - causation - nature and extent of plaintiff’s injuries
Legislation Cited: Civil Liability Act 2002 (NSW)
Evidence Act 1995 (NSW)
Workers Compensation Act 1987 (NSW)
Cases Cited: Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420
Atkinson v Gameco (NSW) Pty Ltd [2005] NSWCA 338
Ceva Logistics (Australia) Pty Ltd v Redbro Investments Pty Ltd [2013] NSWCA 46
Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320
Curtis v Harden Shire Council [2014] NSWCA 314
Czatyrko v Edith Cowan University [2005] HCA 14
Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540
Harrington Estates (NSW) Pty Ltd v Turner [2016] NSWCA 369
Mason v Demasi [2009] NSWCA 227
Origin Energy LPG Pty Ltd v Bestcare Foods Ltd [2012] NSWCA 407
Patrick Stevedores Operations (No 2) Pty Ltd v Hennessy [2015] NSWCA 253
South Sydney Junior Rugby League Club Ltd v Gazis [2016] NSWCA 8
State of New South Wales v Wenham [2016] NSWCA 336
Strong v Woolworths Ltd (2012) 246 CLR 182
Takla v Nasr [2013] NSWCA 435
Transpacific Industrial Solutions Pty Ltd v Phelps [2013] NSWCA 31
Verryt v Schoupp [2015] NSWCA 128
Wallace v Kam (2013) 250 CLR 375
Category: Principal judgment
Parties: Matthew Williams (Plaintiff)
Metcash Trading Limited (Defendant)
Representation:
Counsel:
B McManamey (Plaintiff)
R O’Keefe (Defendant)
Solicitors:
Law Partners Compensation Lawyers (Plaintiff)
Vardanega Roberts (Defendant)

File Number(s): 2013/00331913

Judgment

Introduction

These proceedings relate to a claim by the plaintiff in negligence concerning workplace injuries which allegedly occurred to him on 30 May 2012 and 1 June 2012. At the time, the plaintiff was employed by JW Workforce Solutions Pty Ltd trading as Tru Blue Recruitment Australia, a labour hire company, which provided the services of the plaintiff as a worker to the defendant to work as a casual picker/packer at the defendant’s product distribution centre at 71 Huntingwood Drive, Eastern Creek in Sydney in New South Wales. The plaintiff had commenced work at the defendant’s premises at Eastern Creek in late February 2012 and continued to work at those premises until 1 June 2012, returning to work for part of 13 June 2012.
The premises at Eastern Creek consisted of an extremely large covered warehouse and distribution centre where goods were received from manufacturers or other wholesale storage areas by truck and then selected by pickers/packers like the plaintiff to be placed on a pallet which was then wrapped in plastic and transported to various retail outlets for sales to the public. The defendant was one of the entities which occupied the site and supplied retail outlets which included IGA grocery stores. Pickers/packers wore headsets which directed them to pick slots where goods were stored on pallets either on the ground or on shelves. They drove a vehicle called an electric pallet jack which had one or two pallets attached to it which were loaded with goods by the picker/packer as directed through the headsets before being wrapped for transport to the relevant retail outlet.
The plaintiff was born in October 1985 and was 31 years old at the date of the hearing.

Amended Statement of Claim

The plaintiff’s Amended Statement of Claim was filed on 8 May 2015.
Under the Amended Statement of Claim, the plaintiff:

Sued the defendant for damages pursuant to the Civil Liability Act 2002 (NSW) (“CLA”);

Claimed that the plaintiff was employed by “JW Workforce Solutions” as a picker and packer, making up orders for the defendant at its warehouse;

Pleaded that the defendant owed a duty of care to the plaintiff to ensure that the warehouse and the system of work devised and implemented by it was safe and free from foreseeable risks of harm, which were not insignificant (paragraph 3b);

Pleaded that when making up orders for the defendant the plaintiff was under the defendant’s exclusive direction, while remaining an employee for JW Workforce Solutions;

Claimed that on or about 1 June 2012, the defendant directed the plaintiff to pick and pack orders at a fast rate, regardless of the items being picked and packed, which encouraged unsafe lifting and work practices and inadvertence (paragraph 5);

Pleaded that the plaintiff was required to pack between eight and ten pallets of goods per day and to handle a large number of orders per pack day;

Claimed that the contents of each pallet and the weight of each “parcel” was determined by the order. In particular, it was claimed that a number of the items which the plaintiff had to lift up and place on the pallet included heavy cans of dog food and soft drink which weighed between 14.4kg and 16kg each (paragraph 5B);

Claimed that if the plaintiff fell below the approved pick rate he was to be counselled by the defendant’s employees and would not have been offered further work at the defendant’s premises. It is asserted that as a result, the pick rate encouraged fast work and inadvertence and unsafe lifting and carrying practices and that this caused the plaintiff to suffer injury (paragraph 6).

The particulars of negligence are set out by the plaintiff in paragraph 7 of the Amended Statement of Claim as follows:

“7.  The injury referred to in 6 above was caused by the negligence of the defendant.
PARTICULARS OF NEGLIGENCE
a.  Failure to provide a safe system of picking and packing.
b.  Failure to provide proper procedures for the identification of an inappropriate picking and packing system.
c.  Failure to provide a means of identifying an unsafe system of picking and packing.
d.  Failure to provide training and instruction [to] the Plaintiff adequately when he was required to pick and pack at a fast rate.
e.  Failure to properly supervise the plaintiff.
f.  Implemented a pick and pack rate which failed to account for the weight of the items to be picked and packed;
g.  Imposed unreasonable time frames within which to pick and pack orders and which encouraged inadvertence and unsafe lifting practices;
h.  Failed to suspend the pick and pack rate at times when equipment, such as the scanner, was not working, or otherwise did not work for certain periods of trade;
i.  Required the plaintiff to 'catch up' on pick and pack orders when the scanner was inoperative for a period of time during the early hours of the plaintiff's shift;
j.  Failed to encourage reporting of unsafe work practices and more particularly problems complying with the pick and pack rate;
k.  Failed to comply with and encourage compliance with the Code of Practice for Hazardous Manual Tasks 2011;
I.  Failed to devise, institute and maintain an Occupational Health and Safety Management System;
m.  Failed to undertake OHS Risk Management Assessments;
n.  Failed to store heavy items, such as dog food, in an area where packs can be accessed between the knees and the shoulders;
o.  Failed to review the height of the first level of shelving of heavy products and to raise it to reduce the risk of injury from sustained and repetitive bending;
p.  Failed to provide turn tables on site so that items can be picked from the front end of the pick space as the pallet is picked down;
q.  Failed to rotate pallets, using a forklift, so that items can be picked from the front of the pick space;
r.  Failed to ensure that all equipment was in good working order so that picking and packing could proceed without interruption;
s.  Failed to provide any or any adequate supervision to ensure that labour hire workers only lifted one carton or package at a time;
t.  Failed to provide any or any adequate training on safe manual handling techniques;
u.  Breaches of the Workplace Health and Safety Act 2011 and the Workplace Health and Safety Regulation 2011.”

In his Amended Statement of Particulars filed 17 July 2015, the plaintiff particularised the injuries received as injuries to the “lumbar spine”, “radiculopathy” and “psychological sequelae”.

Defence

The defendant was granted leave to rely on a Defence to the Amended Statement of Claim which had already been filed with the Court on 1 November 2016.
In its Defence, the defendant:

Disputes liability;

Claims that the plaintiff had a history of back injury which he had deliberately not disclosed at a medical assessment on 21 February 2012 for the purposes of the defendant determining whether he was suitable to be used in the job as picker/packer;

Pleads that the content and scope of the duty of care that the defendant owed to the plaintiff was determined and circumscribed by its reliance upon the plaintiff’s disclosures in the course of his medical exam. It is further asserted that the defendant would not have permitted the plaintiff to perform the duties of a picker and packer if it had been made aware of the plaintiff’s true medical history;

Claims that the plaintiff underwent a thorough and detailed induction and training process which included training in safe manual lifting practices. It is claimed that the plaintiff was taught not to lift multiple boxes of product at one time. It is also asserted that the plaintiff was provided with a reasonable period of time for performing all aspects of his picking and packing duties;

Claims that the heaviest items the plaintiff was required to lift as part of his duties as a picker and packer included dog food cans and soft drink bottles which did not exceed 16.4kg;

Claims that the pick rate required was reasonable and was based on the work speed of an average person allowing time for correct manual handling techniques, toilet breaks and fatigue (paragraph 10);

Claims that if the plaintiff was injured the risk was an obvious risk and the plaintiff was guilty of contributory negligence (paragraphs 12 and 12A);

Disputes causation;

Pleads a defence under Section 151Z of the Workers Compensation Act 1987 (NSW) (“WCA”) in relation to a breach by the plaintiff’s employer of a non-delegable duty of care to him as their employee.

Oral evidence of the plaintiff

The plaintiff gave evidence that he was born in October 1985 and was thus aged 26 at the time of the alleged injury in June 2012. He was educated to the end of Year 10 at school.
The plaintiff’s background employment history included as a stock replenisher for Woolworths, a kitchen hand for McDonalds, two years of a mechanical engineering apprenticeship and also a number of years working for grocery wholesalers as a picker/packer. The plaintiff said he left his apprenticeship because he was struggling financially. He said he worked for a company called Ceva Logistics placing products on pallets for allocation to retail stores on smaller pallets. Essentially this was a similar job to the job he later undertook for the defendant.
The plaintiff gave evidence that in 2009 he developed soreness in his lower back following an incident where he was placing boxes in a cage which rolled away: T 87.20. He said he felt pain in his lower back and in the back of his left leg: T 87.31-.40.
The plaintiff said that he sought medical attention in 2009 in relation to his back and x-rays and a CT scan were undertaken. He had about two months off work and then resumed his picking/packing duties with Ceva Logistics: T 88.2. He said he worked for them for about two to two and a half years: T 88.11. Mr Williams said he left that company when there was an allegation of someone stealing stock and he felt that he had not been treated correctly during the investigation.
The plaintiff gave evidence of also having a history of depression: T 88.24. This arose from work issues and losing his driver’s licence for road racing. He said he obtained medical advice in relation to his depression from his general practitioner, Dr Rhee, who referred him to a psychologist, Mr Gunn, who he saw on several occasions. He stopped seeing Mr Gunn as he did not think it was assisting him. He did take the medication Pristiq for his depression which was prescribed for him by Dr Rhee. The plaintiff said he was free from depression when he started work for the defendant.
The plaintiff gave evidence that he had an injury to his right hand in about 2010 following an altercation which healed fully.
The plaintiff stated that he then obtained employment as a picker working in a freezer dealing with cold products where he lifted weights of up to 20kg without difficulty: T 90.21. This was a seasonal job which he lost when the company for which he was working lost its contract.
The plaintiff then gave evidence that he was unemployed for a period before registering with the labour hire company J W Workforce Solutions trading as Tru Blue (“Tru Blue”) in January 2012: T 90.35.
The plaintiff said that eventually he was called up by an officer of Tru Blue, Matt, who took him and about eight to ten others to the Eastern Creek distribution warehouse occupied by the defendant. He and the other potential employees were taken around the warehouse and shown how the defendant’s picking/packing system worked: T 91.26.
An officer called Matt from Tru Blue indicated that if the plaintiff wanted to work for Tru Blue a medical was required which he had to pay for. This medical was undertaken by a general practitioner at Blacktown who conducted a physical examination, a hearing test and testing for the use of drugs. The plaintiff confirmed that he was asked questions about his previous injuries and did not reveal his prior injuries or his prior workers compensation claim because he wanted a job and he believed that if he had told the truth he would not be given a job: T 93.25-.37. He said that at the time he was in “perfect” condition. He said his last back pain had been probably two years previously: T 93.44.
The plaintiff was soon after told by Matt from Tru Blue that he had been successful in obtaining the job and he needed to attend the defendant’s site for an induction. He attended the site and Matt took the employees around and showed them the exits, the goods to be packed, the headset system and the pallet jack machines. He said Stephen Miller from Metcash was also present who he believed to be a manager: T 94.14. The plaintiff gave evidence that he did not recall Mr Miller talking to him. The plaintiff was given a start date.
The plaintiff said he arrived at Metcash for his first day (which other evidence showed to be 21 February 2012) between 5am and 6am, clocked on, obtained his pallet jack and headset and was shown how to use the headset. He was given a “buddy” called Shannon to assist him with his first day at work: T 94.43. This person was Mr Shannon De Leon who also gave evidence in the proceedings.
The plaintiff gave evidence that on the first day he went with the buddy who was picking from the shelves and in the second half of the day the buddy watched him picking: T 95.11.
The plaintiff gave evidence that he noted the buddy worker taking goods from the second level of shelving, not using a supplied product hook to drag goods towards him which were at the back of the layer of goods, climbing on boxes to get to the second level of the racking above and crawling into the lower shelf to get stock. He said the buddy told him that if more than one box was picked at a time that this increased the pick rate: T 95.34. The plaintiff gave evidence in relation to how the defendant’s system worked and the various steps which he undertook in completing an order: T 95.42-97.21.
The plaintiff then gave evidence that he noticed that workers picked very quickly as this appeared to him to be the only way to stay within the pick rate. He also noticed that workers picked multiple boxes of goods at the one time. He also undertook the practice of lifting up multiple boxes at the one time. He gave evidence that no-one ever spoke to him against doing that and as far as he could observe it was a common practice in order to achieve the pick rate required by the defendant: T 97.36.
The plaintiff described the setting out of the pallets in the aisles at the centre and the limited clearance between the pallet jack vehicle and the shelving. He said it was difficult to turn around with products from the shelf to place them on the pallet jack. The plaintiff also gave evidence that the shelves were various heights including 1.2 metres, 1.4 metres and 1.8 metres: T 98.15. Where he had to pick goods from a bay with the height of 1.2 metres he said it was frequently necessary for him to get down on his hands and knees and crawl onto the pallet if the product available was at the back. If it was at the front it was necessary for him to crouch down and place his arms in front of him to lift up the product. The plaintiff also gave important evidence that some of the products were stuck together and it was necessary on occasions to crawl onto the pallet where the height of the bay was limited and shake the products free and then wiggle backwards with the product, turn around and then stand and place the product onto the pallet jack: T 98.35-99.19.
The plaintiff gave evidence that the defendant supplied him with a case hook tool for the purposes of his work in reaching boxes at the back of the pallet but he did not use it as in his experience the use of the hook damaged stock including boxes and containers of bottles. He said the only way to obtain product at the back of the pallet was manoeuvring yourself to grab it. He said he also did not observe other workers using the case hook in their duties: T 99.32.
The plaintiff gave evidence that he thought the defendant’s system was “ridiculous” and he informed Steve Miller of the defendant at what he described as a “toolbox meeting” who said he would look into it. He also told a Human Resources Manager of the defendant of the problems as he perceived it with the system pick rate and that bending under the rack was not safe: T 100.24. He said that he understood that the Human Resources Manager spoke to the General Manager and he saw both of them in the lunchroom and they both looked at him.
The plaintiff said that a worker could determine at any time whether he or she had maintained the defendant’s pick rate by ascertaining it when they clocked off or calling for it on their headset: T 101.3. He said that on occasions Steve Miller or Matt from Tru Blue came up to him and told him to pick up the pace: T 101.22. This occurred in the first couple of weeks of him working. The plaintiff said he also received texts from Matt from Tru Blue that it was necessary for him to pick up the pace if he wanted a permanent job: T 101.38.
The plaintiff gave evidence that he rang WorkCover and complained about the defendant’s system: T 102.8. As far as he was aware nothing happened following his call to WorkCover.
The plaintiff gave evidence that in the period February to April 2012 his back became sorer and sorer and began to ache until he experienced a sharp pain: T 102.33. He said that he was picking a box of Pedigree dog food when he felt a sharp pain in his back: T 103.36. He finished the rest of the order. This was on 30 May 2012. He felt pain in his lower back, in his left buttock and into the back of his leg. He said the bay he was emerging from at the time was 1.4 metres in height: T 103.49. He said he went to Steve Miller, of the defendant, complaining of a sore back and was offered a Panadol which he did not take: T 104.29.

The plaintiff gave evidence that he struggled through his shift on Thursday 31 May 2012. On Friday 1 June 2012 the plaintiff stated that there was a further incident but the pain was much more intense. He said he was bending under a rack to obtain 1.2kg cans of Chum dog food which had plastic wrapping around it. He said he crawled under the rack to obtain cases at the back of the pallet and was pulling out two cases at a time working hard to maintain his pick rate. The plaintiff said that he was lifting the fifth and sixth boxes of Chum dog food at the time and wriggling out with the boxes when he felt a sharp pain in his back which went down his left buttock and the back of his left leg and then down the front of his left leg to his foot: T 102.41-.48; T 105.10-106.16. He sat on the pallet for a while. He said he then went up to the control desk but no supervisor was present. He clocked off and informed Matt from Tru Blue what had happened. He left work, attended the company doctor at Wetherill Park, Dr Foo. He said he went to Dr Foo on the same day. At the time he said he had intense sharp pain in his back and when he was examined by Dr Foo he could not twist or bend. He said Dr Foo said he had a muscle strain and he was referred to a physiotherapist who he went to see about four or five times: T 107.9.
The plaintiff gave evidence that he attempted to return to work on 13 June 2012: T 107.44. He said he was feeling better at the time and had been told by Dr Foo that he was fit for full duties. He said that in the course of his work doing heavy lifting after about two to three hours he felt severe pain in the same areas lifting products from the ground and ceased work after informing Tru Blue of the pain: T 108.4. He never returned to working at the defendant’s premises.
The plaintiff was taken to various documents which Mr Roberts of the defendant said were provided to new inductees at the premises. The plaintiff said:

He had never seen the Engineered Standards document at Exhibit 3, page 179;

He had never seen the Huntingwood site induction document at Exhibit 3, page 182;

He had never seen the safety induction training document at Exhibit 3, page 199;

He confirmed that it was his signature on the employee’s site induction guidelines at Exhibit 3, page 206 but he said he had never seen the document at Exhibit 3, page 207. He said he saw the employee’s site induction guidelines document and signed it when the document was distributed by Matt from Tru Blue to all the new inductees in an office who signed it and gave it back to him: T 109.20;

He had never seen the training progress record at Exhibit 3, page 208 and said it was not his signature on the document;

He had never seen the IGA continuous development training document at Exhibit 3, page 209 and it was not his signature on the document;

He had never seen the dry grocery assembler voice pick sequence document at Exhibit 3, page 210;

Later the plaintiff agreed that he had signed a document entitled “Site Induction Form” dated 21 February 2012. This document included the following statement which was ticked: “I have received instruction and or information on safe manual handling and will use correct manual handling techniques at all times. This will include taking required rest breaks when required and stretching if undertaking repetitive lifting”: Exhibit 13.

The plaintiff’s evidence should be contrasted with that of Mr Roberts of the defendant, which is discussed below, who said that the Engineered Standards document, the Huntingwood site induction document, the safety induction training document and the employee’s site induction guidelines were all provided to new inductees during the initial training.
The plaintiff gave evidence that in 2012 his objective was to work at Metcash for a period of time and then go back to TAFE to complete the third and fourth years of his mechanic apprenticeship at the beginning of 2013: T 110.10. He said he had not done this since because he had hurt his back.
The plaintiff gave evidence that he sought further medical treatment from his general practitioner, Dr Rhee, who referred him for scans: T 111.4. He also obtained treatment from a physiotherapist and was prescribed various painkillers. He said he did not take the prescription pain drugs because he saw those as a “bandaid job” only: T 111.26.
The plaintiff gave evidence of his current living circumstances and the activities he could undertake both before and after the June 2012 incident. He said that at the time of the incident he was living with his parents. He lived on the upper level of the house and was responsible for keeping it clean and tidy. He said he used to mow the lawns, undertake vacuuming and look after his dog but could not continue doing so because of the pain in his back. He said he could not do much at all except lie down and occasionally prepare meals: T 111.42.
He said he could dress and maintain himself, although he needed some help in the mornings. He said his mother provided him with this assistance initially for a period of about one to one and a half hours per day: T 112.44.
The plaintiff said that prior to the accident he undertook the lawns and edges although the area to be mowed was limited. He said he spent about half an hour on average per week undertaking this task, although more work was required in summer compared to winter. After his accident he said he did not undertake any lawnmowing as he could not do it: T 113.21.
The plaintiff gave evidence that after the accident he had physiotherapy for two to three months and then stopped it as it was in his opinion aggravating his condition. At this time he was suffering from the same pain in his back, left buttock and left leg. He said walking around for lengthy periods and standing up took its toll on him: T 113.35.
The plaintiff gave evidence that he was still able to drive at this time. He had a manual car and on one occasion his left leg went numb and his foot felt as if it was “on fire” and he hit the gutter with his car. This was in the first year after the accident. He also gave evidence that his left leg had given way on a number of occasions causing him to injure himself. These injuries included tearing his rotor cuff in his shoulder and breaking a bone in his foot when he tried to mow the lawns and undertake some handyman work. Thereafter he stopped those activities.
The plaintiff stated that he attended Dr New an orthopaedic and spinal surgeon who eventually told him that he could not assist him further: T 115.21. By 2013 he believed his condition was getting worse and he was in constant pain with more falls: T 115.31.
In 2013 the plaintiff met his current partner and in 2015 they purchased a house together with the financial assistance of his partner’s parents. He said that between 2013 and 2015 he felt his condition was getting progressively worse with his left leg being numb and his foot feeling as if it was “on fire”. Hydrotherapy was attempted by the plaintiff at the recommendation of Dr Rhee but the plaintiff formed the view that this aggravated his condition. The plaintiff said he had excruciating pain if he sat or stood for any lengthy period in the one place. He said he could bend over but not by himself. He could not twist his back and walking for any period aggravated the pain. He said he could not run. The plaintiff gave evidence that his condition was unchanged for the last year and a half: T 117.22. He could not get his pain to settle: T 117.31.
The plaintiff gave evidence that he changed his general practitioners a number of times as his condition was not improving. He was referred to Professor Boesal who attempted nerve root blocks but once the anaesthetic wore off he was in serious pain. He said he took Lyrica twice per day as prescribed by his general practitioner or Professor Boesal. Other than that he had no treatment. He saw Professor Boesal every three months and his general practitioner every month: T 119.31.
Currently the plaintiff said he did very little around the house: T 120.2. All of the tasks were completed by his partner. He gave evidence that he tried to help by doing minor tasks such as emptying the top drawer of the dishwasher and doing some limited cooking. Otherwise the plaintiff said all jobs around the house were undertaken by his partner who worked fulltime. This made the plaintiff feel “sick” as he could not look after things himself: T 120.40. He gave evidence that if he was awarded money he would get someone to do tasks for him rather than get his partner to do it: T 120.46.
Prior to the accident the plaintiff gave evidence that he enjoyed working on cars, riding his motor cycle and meeting up with his mates. However he said he cannot work on cars now, cannot ride his motor cycle and only met his mates if they came over to his house. He said he could not drive for a very long distance. He said he now had back pain all the time which varied in intensity and was worse in colder weather. He did not believe his condition was improving: T 122.25.
As stated above, the plaintiff gave evidence that he had experienced depression prior to the accident and had taken medication. However, he said he had not taken medication for depression whilst working at Metcash. He said his depression prior to working at the defendant had stopped after about a year: T 122.36. He said that now he was depressed all the time, found it hard to wake up and did not want to face things. He said that the depression shattered him emotionally: T 122.43. He said he had been receiving help from a psychologist, Ms Parish.
The plaintiff gave evidence that his sleep had been affected since the accident. He said he had broken sleep and often woke up with concerns of the future. Also he said his pain often broke his sleep after he had been sleeping for one to two hours.
The plaintiff gave evidence that he was not working at the time of the hearing and was not looking for work: T 123.37. He said his rehabilitation had been stopped and he had been certified totally unfit for work. He said he had stopped seeing his psychologist as he did not think it was helping him.
The plaintiff was subjected to a lengthy cross-examination which continued over several days with some other witnesses being interposed. The plaintiff also sought, and was granted, adjournments on occasions due to apparent pain from his injury which posed problems for him giving his oral evidence.
The plaintiff gave evidence that he was so overwhelmed with pain that he had difficulty sometimes remembering things: T 128.41. He also conceded that his memory about many things may be unreliable because of the problems which he had. This was a significant concession by the plaintiff and raises real questions about the reliability of the plaintiff’s recollection of events prior to his accident, including his prior medical history. He agreed, for example, with the proposition that it was possible that his memory of things that occurred up to twelve years ago was not good and may be unreliable: T 128.38-.49.
The plaintiff was asked questions by counsel for the defendant in relation to his medical history up to the time of the plaintiff’s commencement of work at the defendant’s warehouse in February 2012.
In particular, counsel for the defendant put a number of propositions to the plaintiff that he had experienced back pain of varying severity and other medical problems including depression in the period between 2004 and the beginning of 2012:

It was put to the plaintiff that he was involved in a motor vehicle accident in December 2004 and experienced pain in the lower back and was unable to cope at work. It was suggested that the plaintiff saw Dr Peter Clarke who referred him for imaging. The plaintiff said he did not recall having the accident although he was willing to concede the possibility that it may have occurred: see Exhibit 3, page 360 and T 128.1-.36;

The plaintiff was asked questions about an injury to his abdomen when he was lifting 43kg boxes in December 2005. The plaintiff said that he vaguely remembered the injury and thought he was working at Zodiac which was a firm selling pool cleaners at the time. The plaintiff said he could not recall seeing a Dr Shinwari about the accident or lodging or obtaining certificates for the purposes of obtaining workers compensation benefits in connection with the injury. Exhibit 3, pages 361-362 and T 129.44-130.18. The plaintiff also could not recall making a workers compensation claim in relation to the abdominal injury: T 132.28, see also Exhibit 3, page 367;

It was put to the plaintiff that he saw a Dr Chang in May 2008 describing himself as “paranoid” and saying he had stress from work and had used cannabis and amphetamines. The plaintiff said he did not recall seeing a Dr Chang and denied relaying these matters to him. In particular, he said he did not use cannabis or amphetamines in May 2008. See Exhibit 3, page 394 and T 135.17-136.16;

The plaintiff agreed that in May 2008 he accepted employment with Ceva Logistics as a storeperson: T 137.16 and Exhibit 3, page 398. The plaintiff said that shortly before commencing with Ceva Logistics in May 2008 he lost his driver’s licence for three years because he was engaged in drag racing: T 138.6. The plaintiff also agreed that he was convicted for driving to work unlicensed. He accepted that he was willing to ignore the prohibition on driving to continue driving his vehicle to work: T 138.18-.27. The plaintiff said the work at Ceva Logistics was picking and packing and he accepted that he would have received some training in safe manual lifting at Ceva Logistics: T 138.43-.48. The plaintiff was cross-examined about safe lifting practices and agreed that he understood the safe way to lift a heavy box whilst he was working at Ceva Logistics in 2008: T 139.24-140.15 and T 140.41-141.1;

The plaintiff was cross-examined extensively in relation to his medical history between late 2008 and January 2012. The plaintiff conceded that in that period his back was aching: T 163.35. It was put to him that he suffered from low back pain continuously for a period of about nine or ten months but the plaintiff said he could not say how long it went for: T 163.43. It was put to the plaintiff that he complained of chronic back pain, his legs giving way and depression in circumstances where he had normal x-rays, CT scans and an MRI. The plaintiff conceded that all of the investigations suggested that his back was normal: T 163.31. As stated above, the cross-examination on the plaintiff’s medical history in this period was extensive. The plaintiff showed a distinct lack of recollection in relation to the detail of his medical history in this period whilst accepting that he had an aching back and at times was suffering from depression. The poor memory of the plaintiff in relation to this period is difficult to reconcile with his much more detailed memory of what occurred in his time working at the defendant’s warehouse. An example is that the plaintiff could not recall seeing a Dr Holman, orthopaedic surgeon, in April 2009 in relation to his back: T 164.26-.39;

The plaintiff conceded that he was suffering from constant low back pain in about April 2009: T 164.45. The plaintiff said the pain in his back was an “aching pain”: T 142.17. The plaintiff agreed that he had back pain for the five months before February 2009 and he went off work because of the back pain: T 142.36-.40, see also Exhibit 3, pages 404-405. The plaintiff said that he could not recall being placed on lifting limits because of his low back injury in February 2009: T 144.35; Exhibit 3, pages 408, 411 and 416;

The plaintiff conceded that it was his signature on the return to work plan which appears at Exhibit 3, page 417; T 145.12. In the light of this the plaintiff conceded that his comments in his statement in relation to a report of Dr Maxwell dated 2 October 2014 where he claimed that his back strain at Ceva Logistics took just over a month to resolve, were “quite wrong”: T 147.22. In the light of that the plaintiff seemed to concede that his evidence in chief, that he was fine after a couple of months and he was back at work, was incorrect: T 147.41-.49;

It was put to the plaintiff that he first injured his back in August 2008, had time off work, went back to work in June 2009 and then reinjured his low back. The plaintiff said he could not remember that history of injury and work: T 166.47;

It was put to the plaintiff that he had a burning or prickling or tingling sensation in his left leg in November 2009 as told to a Dr Woolnough but the plaintiff said he could not remember this: T 173.40-.47;

The plaintiff did not recall lodging a second workers compensation claim on 3 November 2009 and that he went off work again in November 2009: T 174.29;

It was put to the plaintiff that he complained of having sensations of pins and needles in his leg in November and December 2009 and he said he did not recall it: T 175.48;

The plaintiff conceded that he could have been depressed in January 2010 and could have indicated that he told Dr Rhee his general practitioner on 15 May 2010 that he had been feeling depressed for at least six to eight months: T 183.18-.30;

The plaintiff said he did not recall telling psychologist Mr Gunn at the end of 2009 that his legs would give out when he walked due to his back pain: T 185.7. The plaintiff said he had a muscle strain in his back at this time but he did not believe he had anything mechanically wrong with him: T 185.18;

The plaintiff agreed that at some stage he took an overdose of prescription medicine but did not recall that it was in November 2009: T 185.42;

The plaintiff denied that he could recall telling his general practitioner Dr Rhee on 22 January 2010 that he often felt his lower back locking up when getting up: T 186.35. The plaintiff denied that he told Dr Rhee that he had radiation of pain to the left leg onto the foot in January 2010: T 186.48;

The plaintiff said he did not recall requesting Centrelink certificates from Dr Rhee to obtain social security benefits at about this time where his medical conditions were listed which included back pain: T 188.48, T 189.13, T 190.1;

The plaintiff denied that in 2011 he continued to experience low back pain from time to time and said his back was good for two years prior to working at Metcash: T 196.15-.20. He also would not concede that he was depressed for a period of at least two years before he worked at Metcash in 2012: T 196.44. The plaintiff denied that he had been suffering from ongoing low back pain right up until 23 January 2012 and that he obtained a Centrelink certificate from Dr Rhee in relation to that: T 197.24-.43.

The plaintiff was then cross-examined extensively in relation to the period when he was given training in 2012 at the defendant’s warehouse up to the time of his injury. Significant evidence given by the plaintiff was as follows:

The plaintiff conceded that Matt from Tru Blue, his employer, gave instructions and information to him in relation to safe manual handling at his induction on 21 February 2012: T 235.21-.33, cf T 234.1-.11.

The plaintiff gave evidence in cross-examination that he was told when he started with the defendant that there was a performance standard known as an Engineered Standard with percentage increments although the plaintiff said that a picker had to reach 90% by the third week and not in the times which had been indicated by Mr Roberts of the defendant in his evidence (Mr Roberts gave his evidence before the plaintiff). The plaintiff asserted that Mr Miller from the defendant and Matt from Tru Blue said that the performance standard of 100% had to be reached within three weeks: T 238.34-239.21.

The plaintiff agreed that he spent a couple of days when he started work at Metcash with a man called Shannon (later established to be Shannon De Leon) who showed him how to do the job. However, the plaintiff gave evidence that Shannon climbed on racks and stood on boxes to get to the second shelf and also indicated how to get quicker times using the Engineered Standard by picking “double boxes”. The plaintiff said that at the time when Shannon showed him how to do these things he (the plaintiff) knew they were not safe, particularly the climbing on racking or boxes. He also said that Shannon in the course of the work lifted boxes above the shoulder height when the boxes were placed on the pallet: T 241.3-.35. The plaintiff gave evidence that Shannon showed him how to use the case hook to pull boxes forward from the back of the pick slot but indicated that Shannon told him it takes up more time. The plaintiff expressly denied that Mr Miller from the defendant or Matt from Tru Blue or Shannon told him that he should only lift one box at a time. The plaintiff said that he had to work at the pick rate and was getting reprimanded for not keeping up to the standard. He said the way of achieving it was to lift more than one box at a time: T 243.6-.25. The evidence disclosed that in fact after working for Metcash for four weeks the plaintiff usually exceeded the picking standard: Exhibit 11;

The plaintiff denied that he was told by either Matt from Tru Blue or by Steven Miller from Metcash that he had to advance from 60% to 100% of the performance standard over six weeks. He gave evidence that he was told he had to achieve a 100% pick rate within three to four weeks: T 291.16-.39 cf T 502.41-503.8;

The plaintiff gave evidence that his pick rate was always around 60% to 80%: T 292.16. This should be contrasted with the pick rates disclosed for him in Exhibit 7 which were to a much higher percentage. See also the much higher pick rates in Exhibit 11;

The plaintiff gave evidence that when he was with his “buddy” Shannon De Leon he lifted multiple boxes while being watched by Shannon De Leon: T 292.27. The plaintiff said these were small boxes being multiple boxes of light items on the top shelves: T 293.18. The plaintiff gave evidence that was what Shannon was doing and that is what he did: T 293.18. The plaintiff said he had no understanding when he started work at Metcash and whilst he was working there not to lift more than one box at a time: T 293.31. He said he did not recall lifting multiple boxes of dog food while Shannon was buddied up and watching him: T 293.14;

The plaintiff conceded that before he started working at Metcash in 2012 he knew that it could be unsafe to lift heavy boxes of 13kg or more with his arms outstretched from his body. He also conceded that he knew it would be unsafe for him to move from one position to another by twisting his spine whilst carrying a box and that he should turn using his feet, holding the heavy object closer to his body: T 299.39-300.2. However, he denied that he went to a meeting before starting work at Metcash with Matt from Tru Blue and Mr Miller from Metcash in which they gave him training about how to safely handle boxes: T 300.7;

The plaintiff denied that he could make more space to turn around with boxes by moving the pallet jack forwards or backwards from the pick slot as this would block another bay for another picker and drop their pick rate: T 302.4. He also denied that the gap between the pallet jack and the pick bay provided sufficient room to be able to turn and change direction with his feet: T 302.33. This was particularly the case where he was picking from underneath the shelf on the ground level: T 302.43;

The plaintiff gave evidence that he was required to pick pallets in layers: T 302.47. He stated that there was no problem in picking boxes of dog food like Chum which were situated at the front of the pallet: T 306.19. In relation to the cases at the back of the pallet on the layer he denied that one could use a case hook to drag the boxes towards him in order to pick them because he asserted that the case hook broke open the plastic or carton. The plaintiff gave evidence that he had to physically pick up the box of dog food in order to remove it. This required him to bend under the racking to do so and lift it up, not drag it back towards him across the other boxes: T 306.21-.48;

The plaintiff gave evidence that supervisors moved around the warehouse checking on pickers from time to time but only about once per week they would walk up the aisles: T 307.23. He also gave evidence that he had never seen Matt from Tru Blue checking on the picking practises of the casual workers: T 307.29. The plaintiff gave evidence that he never saw Matt from Tru Blue checking on him in the four months he was at Metcash: T 307.47. The plaintiff denied that there were something like 16 supervisors working on every shift. He said that supervisors were not at the control desk all the time: T 311.45;

The plaintiff gave evidence that pickers were lifting up multiple boxes of dog food or soft drink routinely whilst he was working at the defendant’s centre: T 312.42. The plaintiff also gave evidence that on occasions he had to continuously lift dog food or soft drink for between one and up to two hours: T 314.23-.48;

The plaintiff gave evidence that his injury built up over a three day period starting on 30 May 2012 and ending on 1 June 2012: T 315.7. He said it commenced with muscle aches and discomfort in his lower back: T 315.12 and .21. The plaintiff said that leading up to the injury his back became sorer and sorer for probably a couple of days prior to 30 May 2012: T 317.48-.11. The plaintiff gave evidence that whilst his back was getting sorer and sorer he could still stand up and could still bend over under the shelving: T 318.5 and .49;

The plaintiff then gave evidence that on 30 May 2012 he felt the first instance of sharp pain when he was picking up a 13kg box of Pedigree dog food. He gave evidence that he picked it from under the racking from the ground level shelf. He agreed that he had earlier said in his evidence that he could not recall whether he picked the box up from the ground or the second shelf (T 103.39) but said he now remembered it was from the ground level as he had time to think about it since his first evidence: T 319.49. He disagreed with the proposition that he was reconstructing his evidence and could not remember whether he picked the box up from the ground or from the second shelf: T 320.13 and .44. He said the first sharp pain was experienced when he was bending and twisting to the right to put the box on the pallet: T 320.48. The plaintiff said in response to the suggestion that he manoeuvred the box in a way that he knew was unsafe, that he had no other way to do it: T 321.13;

The plaintiff was then cross-examined about the incident on 1 June 2012. He said he was still in pain whilst he was picking on 1 June 2012: T 322.24. He confirmed that he had been in pain also on 31 May 2012 whilst working: T 323.30. The plaintiff gave evidence that he was prepared to continue working in a dangerous job on 1 June 2012 while he had pain in his back: T 323.48. The plaintiff gave evidence that he was lifting on 1 June 2012 in the only way he could having regard to the space which he had and the fact he was bending under shelving picking dog food from under racking: T 324.5-.28. He described bending or crawling under the racking to get to the cases of dog food: T105.24. The plaintiff said that he picked four boxes of dog food and then proceeded to commence lifting 10 boxes of Chum dog food. He said it was whilst lifting the fifth and sixth of those boxes that he hurt his back: T102.41; T104.48-105.49; T 325.18.

The plaintiff gave evidence that he was required to undertake unsafe lifting whilst working for the defendant. At T 141.7-.20 the plaintiff gave evidence as follows:

“Q. Yet you say when you started working at Metcash you were constantly bending and twisting your spine and lifting more than 15 kilograms, in fact, lifting 30 and 40 kilograms, is that your evidence?
A. That's right because you had to been [bend] under racking whereas Siever [Ceva] Logistics never had racking that you had to bend under.
Q. You knew that you were going to be lifting in a way that was unsafe and you just did it anyway, is that what your evidence is, in 2012?
A. How else was I supposed to do it?
Q. You were supposed to do it by bending your knees and your ankles and bending down and taking boxes with your back straight, weren't you?
A. How am I supposed to do that when I'm 6 foot tall and the racking was 1.4 high?”.

The plaintiff answered many questions in the course of his cross-examination to the effect that he did not recall the matter put to him or he did not remember it. This included many events in the years 2008 to 2010 when he appeared to be complaining frequently to doctors of problems with his back and depression. It is difficult to understand how the plaintiff’s recollection of this period could be as poor as was indicated by his answers. One possibility is that he was deliberately avoiding answering the questions. The second possibility is that his claimed condition and the medication which he is taking is of such a nature that it has substantially affected his recollection. Reference should be made to the plaintiff’s cross-examination at T 164.5-.17 where he gave the following evidence:

“Q. Isn't that something that you would be able to remember today if it happened some six or seven years ago?
A. Not really. You try being in pain for four years and having depression for four years and see how much you can remember.
Q. You say do you that the pain and depression that you've had for the last four years have substantially impaired your memory is that correct?
A. Yeah.
Q. If that's so isn't it the case that your memory of events over the last four years may also be impaired?
A. No. If I remember something I'll tell you. If I don't remember I'll tell you I don't remember it.” (T 164.5-.17).

There were a number of times where the plaintiff’s answers seemed to be surprising and in my view indicated a likely evasion of giving truthful answers. Examples include:

At T 190.25-.30 it was put to the plaintiff that he had to leave the family home because an Apprehended Violence Order was taken against him, which he denied. However he was unable to give the reason why he moved out of the family house at that time. An inability to recall the reason is surprising;

Mr Williams was asked many questions about his dealings with the Department of Corrective Services relating to him fulfilling a Community Service Order. The plaintiff said he could not remember dealing with any officers from the Department of Community Services or Corrective Services: T 191.41. This again is surprising having regard to the nature of such an order and the numerous documents relating to the plaintiff’s dealings with the Department officers in the evidence.

Reliance was placed by the defendant on certain admissions from the plaintiff. The defendant asked questions in cross-examination to the effect that the plaintiff was willing to take what could broadly be described as inappropriate action when it suited him. Examples included:

That he was willing to drive whilst unqualified when it suited his personal purposes: T 169.38, T 170.32;

He was willing to lie in the medical questionnaire for the medical he took for the purposes of working for the defendant in relation to his prior back conditions, workers compensation claims and depression: Exhibit 3, 223. The plaintiff conceded in cross-examination that he was willing to lie in the medical form signed by him on 16 February 2012 (T 225.9) even though he knew it would be sent to his employer and he knew that it would be sent to whoever he went and worked for and they would rely upon it: T 225.37. He gave evidence that he denied that he had lost any time from work through illness or injury between February 2010 and February 2012: T 227.49. The plaintiff said he lied in the form so he could work and earn money and not stay on Centrelink: T 230.40 and T 230.21.

In the course of giving his evidence the plaintiff appeared on occasions to be in serious pain. The plaintiff walked slowly in and out of court and to the witness box and frequently grimaced in apparent pain. On occasions his answers appeared vague and on other occasions he appeared precise in the answers which he provided. The court frequently reminded the plaintiff that he could ask for an adjournment if he found his pain affected his evidence.
The plaintiff’s counsel, in his submissions, argued that the plaintiff should overall be accepted as an honest and reliable witness, albeit with some failings in his memory of events prior to 2012. It was submitted that there is no reason why the plaintiff would have a good memory of events between 2008 and 2010, particularly the doctors’ consultations: reply submissions at [4]. It was said that, in comparison, there was good reason for the plaintiff to recall the events of 2012 which had a significant and continuing impact upon him: plaintiff’s reply submissions at [8]-[9].
The defendant’s submissions on this point, in summary, were that the plaintiff was not a credible witness and was either unreliable because of his poor memory or embellishing and exaggerating in his evidence: submissions at [5]-[6], [13]-[14] and [28]-[29]. It was said that the plaintiff’s evidence relating to the alleged injuries on 30 May and 1 June 2012 differed relevantly: submissions [382]-[397]. It was also submitted that the plaintiff adopted a deliberate ploy of pleading a bad memory in relation to the events prior to February 2012 but asserting a very accurate memory of his time at the defendant’s premises: submissions at [27], [33], [35], [74] and [161]-[166] are examples .
In my view, the plaintiff’s evidence about his poor memory, his concessions as to the unreliability of his recollections, the apparent limited recollections which he had of his medical status between 2008 and 2010 and the plaintiff’s inconsistent presentation in giving evidence all provide a reason for the plaintiff’s evidence to be treated with some real caution by the court. This is particularly the case in relation to matters prior to him commencing work at Metcash. The plaintiff’s apparent inability to remember the detail of his medical conditions in the period 2008 to 2010 is very surprising. I do not accept the plaintiff’s written submissions on this point: reply submissions at [4]. I gained the firm impression and I find that the plaintiff was deliberately being vague in relation to his recollections in this period to attempt to minimise the suggestion that he had continuing low back pain and/or depression up to the time when he commenced at Metcash.
I also accept the defendant’s submission that generally preference should be given to contemporaneous documentary records over the plaintiff’s recollections unless there is a reason to take a contrary approach: see submissions at [30]-[32].
I will provide further comments in relation to the plaintiff when I discuss the joint conclave expert and medical opinions further below. I will also consider the plaintiff’s evidence in relation to a number of important factual issues which need to be decided.

Evidence of Ms Nafsika Stylianou

Ms Nafsika Stylianou, who is the plaintiff’s de facto partner, gave evidence in the proceedings. Ms Stylianou is 31 years old and first met the plaintiff in mid-2013. A relationship formed between them and they began living together in August 2015 when they bought a house together.
Ms Stylianou in substance confirmed the evidence of the plaintiff in relation to his current physical limitations and activities.
Apart from a minimal amount of sweeping, loading the top dishwasher and modest food preparation by the plaintiff, Ms Stylianou confirmed that she did all domestic duties around the house. She also confirmed that the plaintiff appeared to be in pain frequently and often had to stop activities and lie down. Ms Stylianou gave evidence that the plaintiff has to get up from a seated position frequently and walk around and then lie down. She said he does not sleep well and wakes up a lot. She said he never has a proper night’s sleep.
Ms Stylianou gave evidence that the plaintiff’s condition varied from day to day but every day was difficult for him to some degree. This evidence is somewhat different to the plaintiff’s claims of being in virtually constant pain.
Ms Stylianou confirmed that the plaintiff’s left leg had given way on occasions and this had caused him injury.
Ms Stylianou did not have a driver’s licence and she gave evidence that she had to change jobs as the plaintiff was not always able to pick her up in a car from the railway station due to his pain and the fact he was frequently resting. She gave evidence that the plaintiff’s limitations had a substantial effect on their social life and they did not go out very much or do many things socially. She said the plaintiff was unable to sit in a cinema.
Ms Stylianou stated that although the plaintiff was very keen on motor cars, he did not work on them from her observation.
Ms Stylianou gave evidence that while the plaintiff was able to shower and dress himself, on occasions she assisted him if he was in a lot of pain. She gave evidence that his condition had been generally consistent whilst they were living together even though each day was somewhat different. She confirmed that she did all domestic duties around the house including cleaning the bathrooms, doing the washing, all vacuuming, mopping and all cooking.
In cross-examination Ms Stylianou gave evidence that she and the plaintiff did the shopping together and he drove to the required shopping centre. She also gave evidence that the plaintiff drove to his parents’ house on occasions with her.
Ms Stylianou confirmed that the plaintiff registered an Australian Business Number in 2014 as he wanted to establish a business of cleaning and maintaining cars and subcontract out the physical work to other people. However, the idea had not advanced since the registration. She agreed that she would encourage the plaintiff in any business if he wanted to do it.
Ms Stylianou said the plaintiff had on occasions attempted to mow the lawn but usually could not complete it and that the lawn and their garden had been left unattended to. She said that she herself had no time to mow the lawn because of her other domestic duties. She confirmed that their relationship was a good one. She also confirmed that she washed their clothes and sheets at the same time. Whilst they had a clothes drier, having regard to the fact that it was too low, the plaintiff could not himself load the clothes into it.
The plaintiff submits that Ms Stylianou’s evidence should be accepted and that there is no basis to attack her credit or reliability: reply submissions at [10]. The defendant seeks to cast doubt on Ms Stylianou’s evidence and points to the fact that she spends large periods away from the plaintiff whilst she is working: submissions at [50]-[51].
Ms Stylianou impressed the court as an honest and straightforward witness. She was clearly dedicated to the plaintiff and sympathetic about the pain from which he apparently suffers. I have no hesitation in accepting her evidence of the plaintiff’s activities and apparent limitations since they met and started living together and the division of domestic duties at the house where they are currently living. Her evidence did not appear to me to be affected by any financial interest in the outcome of the proceedings.

Evidence of Mr A Bannerman

Evidence was given by Mr Andrew Bannerman. Mr Bannerman commenced working for the defendant at its Blacktown Warehouse in the middle of 2011: T 338.16. Prior to working at the defendant he had previously worked as a picker and packer for various other companies. When he commenced at Metcash he was employed directly by them as a picker and packer: T 338.29.
Mr Bannerman gave evidence that he suffered a back injury whilst working at the defendant’s Blacktown warehouse in October 2011. Thereafter, he submitted a workers compensation claim, had various periods off work, was placed on light duties and attempted on numerous occasions to resume his picking and packing duties fulltime without success due to aggravating his back injury. Mr Bannerman gave evidence that he injured his back when he attempted to lift two boxes of soft drink and place them on a pallet.
Mr Bannerman gave evidence that he started working at the Huntingwood warehouse of Metcash at about the end of January 2012. Initially he worked as a cleaner, then did some work in accounts and from time to time undertook picking/packing duties when his back allowed him. It seems from the totality of Mr Bannerman’s evidence that he continued work at the Huntingwood warehouse at Eastern Creek of the defendant from January 2012 to some time in mid-2012: T 339.28; T 344.31.
In general terms, Mr Bannerman confirmed aspects of the plaintiff’s evidence and also provided further evidence in relation to the system used at the defendant’s Huntingwood warehouse:

Mr Bannerman said that workers had to pick at “100% rates”. He said that if they did not, they lost overtime and casuals would not get more work. In addition, workers had to work through their lunch break to pick up the pick rate: T 340.5. Mr Bannerman said at Metcash it was very hard to get to a 100% pick rate: T 341.1;

Mr Bannerman confirmed the plaintiff’s evidence that when the pallet jack vehicle was stopped next to a pick slot that there was a very narrow distance between the vehicle and the pallet which is in the picking bay. He assessed the distance as “probably less than a foot”: T 342.4;

Mr Bannerman confirmed that at the Huntingwood warehouse the racking was at different heights, although Mr Bannerman’s recollection was that the shelves were at 1.3 metres to 1.4 metres up to 2 metres in height: T 344.5;

Mr Bannerman confirmed that he picked Chum dog food at the warehouse. He confirmed that the photograph at page 90 of Exhibit 3 depicted how the Chum dog food bay would appear: T 344.14. Mr Bannerman said that pickers were provided with a hook to assist in their picking but with a lot of the products the hook was “just tearing the plastic or breaking the boxes because of the weight of it”: T 345.37. In relation to picking dog food from the Chum dog food bay, Mr Bannerman said the only way was to go between the two pallets and step onto the pallet and lean into it to grab the product: T 345.42. He confirmed that sometimes a worker had to kneel on the pallet or to crawl over the pallet if limited product was left on the pallet: T 346.1; T 346.18-.34. Mr Bannerman confirmed that a worker could not stand up under the racking for the dog food: T 347.6. Mr Bannerman said that as the height of the remaining product lowered a worker had to change their body position and body function at each level: T 347.50;

Mr Bannerman indicated that this sometimes involved him holding a box on each side and moving from left to right while stooped and while twisting to place the box on a pallet;

Mr Bannerman was asked how many boxes he would pick in one movement whilst he worked at the Huntingwood site in 2012. Mr Bannerman said that it depended on what product was involved. With dog food, two boxes would be picked to “keep up with your timing”. He indicated that to keep up with timing a worker could not pick one box at a time: T 349.4. He gave evidence that the other pickers and packers in 2012 at the Huntingwood site were doing the same: T 349.32. Mr Bannerman gave the following evidence at T 351.41-.49:

“Q. Remember we are only asking about the dry foods there at Huntingwood in 2012, can you tell us what your observations were?
A. Virtually nearly every product I have seen people pick up two, three ‑ depends on the size ‑ could be up to five ‑ I wouldn't say five soft drinks or five Chum but definitely of the Chum it would be definitely two. It just depends on how heavy the goods are. If you can carry, say, for example, pasta, well, you might grab four boxes of pasta when you're only supposed to grab one ‑ it's just how we had to ‑ how we had to virtually beat the system to keep up with their system.”;

Mr Bannerman gave evidence that he would observe the other pickers and packers picking up more than one box at a time on a daily basis: T 352.3. Whilst confirming that there were supervisors in the warehouse at Huntingwood in 2012, Mr Bannerman gave evidence that they were mainly at the front desk and that a supervisor never spoke to him about the number of boxes that he was lifting at a time: T 352.15.

In cross-examination, Mr Bannerman maintained the evidence which he had given in chief. Mr Bannerman conceded that he had made a claim against Metcash which had been resolved in August 2014. It was put to him that he did not feel very well disposed towards Metcash. He said that he still shopped at IGA and although he did not agree with their system he did not have what could be called a grudge against them: T 354.11.
Mr Bannerman conceded in cross-examination that he knew from his training that he was only supposed to grab one box at a time: T 356.34. However he asserted that once he started as a fulltime worker he had “no choice”: T 356.19-.30. The cross-examination was also successful in showing that Mr Bannerman was not strong on dates and was involved in infrequent picking/packing at the Eastern Creek centre in 2012 after his initial October 2011 injury: T 359.50.
Mr Bannerman gave evidence in cross examination that he was pulled up by supervisors from the defendant and told to pick up his performance rate: T 366.12. He also stated that he was told to pick up his performance rate by a supervisor if he wanted Saturday work: T 366.39.
Mr Bannerman was cross-examined in relation to the pick slot where the dog food cans were placed. It was suggested to him that the dog food cans must have been placed in a 1.8 metre or 2 metre high pick slot. Mr Bannerman denied this: T 373.5. Mr Bannerman gave evidence that with the dog and cat food it was usually stacked at “about 1.2 - just under the shoulder height”: T 373.26; see also T 374.2 and T 375.6. Mr Bannerman later confirmed that the dog food was kept in bays at shoulder height: T 375.23. His evidence appeared to negate that the dog food was kept in slots which were 1.8 metres high. Mr Bannerman said that there were sometimes three but usually two supervisors on duty and denied that there could have been as many as ten supervisors on duty: T 376.12. Mr Bannerman expressly denied that it was possible for workers to get very close to the 100% pick rate, picking in a safe manner, without picking up more than one heavy box at any one time: T 378.2. He said that he had not seen anyone actually do it.
The plaintiff submitted that Mr Bannerman was an impressive witness who should be accepted. It was argued that he did not know the plaintiff and had no reason to lie: plaintiff’s reply submissions at [10].
The defendant submits that Mr Bannerman should not be accepted as reliable: he only worked picking at the defendant’s premises on occasions in 2012 and spent most of his time in the office; he had difficulties remembering the details of when he worked; he clearly is no friend of the defendant as he was injured whilst working for them; and his evidence of the work practices at the time was vague: submissions at [52]-[66].
Overall, I found Mr Bannerman to be a generally honest witness. He gave his evidence in a forthright fashion and appeared to give it truthfully. The fact that he had injured his back severely whilst working for the defendant did not appear to me to influence his evidence. It seemed that he had some difficulties in remembering precise dates and the precise heights of different slot bays but confirmed that the dog food was not put in a 1.8 metre high bay. He also confirmed the general system as described by the plaintiff, including the common lifting of two or more boxes of product by workers, depending on weight, at the same time. Overall, Mr Bannerman’s evidence was significant as providing support for some important evidence from the plaintiff in relation to the defendant’s system, the pick rate, and the practices adopted at the Huntingwood site by workers at the time. His lack of precise recollection on some issues such as dates and his infrequent picking experience in 2012, require his evidence to be reviewed carefully with other evidence on relevant issues.

The defendant’s evidence

The defendant called several witnesses and tendered voluminous documentation in support of its case.

Exhibit 2 – The film shown to site visitors

The defendant tendered a film which introduced persons coming onto the Eastern Creek premises to what occurred on the premises.
The film showed:

The site at Eastern Creek which included the very large undercover warehouse and distribution centre, part of which was occupied by the defendant;

A one way driving system where trucks delivered goods into the warehouse and other trucks removed assembled pallets of products for delivery to retail outlets;

That the warehouse had aisles with multi-layer shelving. Pallets of the same product were stored on various shelves. As the ground level pallet was exhausted of products, a forklift would move a pallet of products from elsewhere to the ground level to assist in allowing pickers/packers to pack their goods required for a retail outlet;

Pickers/packers controlling an electronic transport vehicle known as an electric pallet jack which had behind it one or two pallets for the purposes of selecting goods. A picker/packer would wear a headset and listen to automated directions to go to various locations in the aisles of goods to select items to fill an order. When the pallet of goods was completed the picker/packer would seal the items with plastic wrap and they would be delivered to a dock for transport by truck to the retail outlet;

A control bay where supervisors obtained the order sent by computer from a retail outlet and then the order was collected with labels by the picker/packer for completion.

Oral evidence of Mr E Roberts

Oral evidence was given on behalf of the defendant by Mr Ernest Roberts who had been an employee of the defendant for 13 years and currently performed the role of Risk and Compliance Manager for the defendant. He undertook that role for the defendant both as at 2012 and at the date of the trial. His various certificates and qualifications became Exhibit 1 in the proceedings. As part of his duties, Mr Roberts prepared training and safety programmes for persons working with the defendant, including new inductees from labour hire companies.
Mr Roberts gave evidence that the premises at Eastern Creek which were known as the Huntingwood premises were completed in November 2011 and commenced from that time. Prior to that time, the defendant’s premises were located at Blacktown. Mr Roberts gave evidence that the Huntingwood premises were used for storage and distribution of products and had an area of about 90,000 square metres: T 18.40.
Mr Roberts gave evidence in relation to the procedures which were adopted in the warehouse in 2011-2012. He said that the product was received and stored in the warehouse by the defendant. The pickers/packers who were also known as assemblers signed on, obtained their electric jack pallet vehicle, did a pre-operational check on the vehicle, placed headphones on, received instructions and then proceeded to assemble on one or two pallets attached to the back of their electric vehicle, the goods for dispatch: T 19.5; T 22.24; T 29.40.
Mr Roberts gave evidence that in 2012 there were two shifts and between 80 and 100 pickers/packers worked on each shift. Some were permanent employees of Metcash and some were from labour hire companies. The warehouse was a large one with 26 receiving bay areas and 47 loading dispatch docks: T 19.40. The warehouse was a constant base of activity: T 19.47. It had 46 aisles which were four metres wide and shelving going up 11 metres in height, although some were only nine metres in height, depending on the product and the location within the warehouse: T 20.15.
The goods were delivered to the warehouse on standard CHEP pallets. The aisles had the pallets loaded one deep and two across and were placed there by forklifts. At the time there were about 20 to 25 forklifts in operation per shift: T 21.7-.37.
Mr Roberts said that once a bottom pallet had been emptied by pickers this automatically triggered a request to a forklift to bring down a further pallet of goods to be placed on the lowest shelf level at the ground level: T 21.50.
A picker/packer moved throughout the warehouse wearing headphones listening to computer directions as to product and completed assembling the load. Mr Roberts said the system had not changed since 2004: T 22.45. He said about 40% of the time spent by a picker/packer was travel time with about 60% picking and loading time. Mr Roberts also gave evidence that Metcash’s customers included IGA stores, bottle shops and 7 Eleven stores: T 23.14.
In relation to the range of products in the warehouse, Mr Roberts gave evidence that it included the usual grocery lines and that the boxes had different weights depending on the product: T 23.32-24.3.
Mr Roberts also gave evidence that he walked around the warehouse as part of his duties. He said he noted that the weights of boxes in 2012 varied from 1kg to a 20kg maximum. The 20kg box usually consisted of advertising material: T 24.39.
Mr Roberts confirmed that all visitors who came to the Huntingwood site saw the video which was Exhibit 2 in order to orient themselves to the site: T 25.23. The same video was shown in 2012 and is still shown today.
In relation to the shelving, Mr Roberts confirmed that the height of the shelving varied from 1.2 metres to 1.4 metres to 1.8 metres depending on the weight and size of the product: T 26.11-26.33. He gave evidence that the defendant’s computer system kept a record of the items picked by individual pickers/packers and how long it took for them to complete the order: T 30.46. He said that material had been obtained in relation to the plaintiff’s shifts from 29 May 2012 to 1 June 2012. These records included the product assembled by the plaintiff on the pallets and the weights of both the individual items and the total weight of the number of boxes of each item. From the records one is able to identify for each picker the product selected, the number of boxes, the weight of each box and the accumulated weight of the items and the time taken to pick them: T 35.14-.28. This material in due course became Exhibit 7.
Mr Roberts gave evidence that information was also retained by the defendant for monitoring a picker’s performance to what were described as “Engineered Standards”. A document prepared by Mr Roberts entitled “Engineered Standards” in November 2011 was admitted into evidence (Exhibit 3, page 179). The document describes Engineered Standards as follows:

“Engineered Standards is a work measurement technique which allows efficient planning and scheduling of all warehouse activities and also offers management a very effective tool to measure the productivity of its employees.
The introduction of Standards involved a two-step procedure, which initially analysed the basic motions required to perform the various tasks in the warehouse and secondly, assign to each motion a universally accepted and highly accurate pre-determined time standard.”

The document describes the basis of an Engineered Standard as being: “A skilled man, working at a normal pace, using the preferred method”. The reference to “a skilled man” is described as being to a person “who is trained and performs the job regularly”.
Mr Roberts stated that when a picker commenced work at Metcash, for the first six weeks his expected performance to the Engineered Standard was adjusted. For the first week a picker was expected to meet 60% of the Engineered Standards accelerating to 100% after six weeks: T 35.45-36.7. He stated that 100% of the Engineered Standard was the performance base line for a picker/packer: T 36.11. Mr Roberts said a copy of the Engineered Standards document was provided to new employees: T 38.38. Mr Roberts confirmed that the document was prepared by him for training purposes: T 38.24. The Engineered Standard stated (Exhibit 3, page 180) that included in the standard time for a task was what was described as the assignment time, the pallet time, travel time, case time (which was picking the item and placing it on the pallet) and then time allowances for personal time such as toilet breaks, some fatigue time and some time for unavoidable delays. Travel time to complete the order took between 40% and 60% of the allocated time: T 41.24.
The Engineered Standards included, according to Mr Roberts:

Additional time being given for the lifting of heavy or bulky items;

Time to place the case onto the pallet with again additional time given for large and heavy items. Mr Roberts said that the Engineered Standards permitted Metcash to follow the performance of a worker. If a worker was not meeting the performance standards they would be given extra training or the allocation of a work “buddy” to assist them in making their work more efficient: T 44.1-.8.

Mr Roberts gave evidence in relation to performance achievements. He said no rewards were given to workers for exceeding the Engineered Standards: T 44.12. In addition, he said that the strict policy which was enforced by supervisors was for pickers only to lift one box at a time irrespective of the weight as this complied with correct lifting procedures: T 44.16; T 51.38. The supervisors consisted of 24 persons on any shift with 16 supervisors walking around the floor of the warehouse observing: T 44.31. In 2012 Mr Roberts gave evidence that he walked around the warehouse almost every day and observed pickers and packers in their tasks. If he saw a worker not following safe work techniques, including handling techniques, he would stop the worker immediately and instruct him or her how to undertake the task properly: T 44.48.
Mr Roberts gave evidence that certain documents were given or explained to all new workers: T 45.53-50.30. These included the Engineered Standards document, the Huntingwood site induction document, the safety induction training document and the employee’s site induction guidelines. Another document shown to workers, the dry grocery assembler voice pick sequence document, included the following:

“13. Manual handling warning – when picking the product ensures that preferred methods are followed for manual handling” (Exhibit 3, page 214).

According to Mr Roberts this was part of the standard operating procedure adopted at the Huntingwood warehouse: T 49.15.
Mr Roberts said that there was no endemic problem in 2012 of workers being unable to meet the Engineered Standards: T 46.26. This was because they were given six weeks from the commencement to reach the objective 100% standard.
Mr Roberts was taken to the document at Exhibit 3, page 206 which was the employee’s site induction guidelines. Mr Roberts gave evidence that the purpose of this was to obtain the sign off of the proposed new workers to record that they had agreed to adhere to the induction procedures: T 47.34.
In the course of his evidence Mr Roberts was taken to the training progress record for the plaintiff which is at Exhibit 3, page 208. Mr Roberts said that it was not his signature on this document, although his name had been inserted there with the date 21 February 2012: T 48.40.
Mr Roberts gave evidence that the labour hire company for casual workers arranged to have medicals completed for workers prior to them being used. He also gave evidence that officers from the plaintiff’s labour hire company which was known as “True Blue” were at the Huntingwood site every day and he observed them speaking to the labour hire employees, although he was not involved in this with them: T 51.49.
Mr Roberts was asked questions about alternative mechanisms and procedures referred to by the plaintiff’s expert Ms Aickin in her report. He commented as follows:

He never saw workers lifting two or three boxes of dog food at a time in 2012: T 53.38;

He never saw workers lifting two or three boxes of Coke soft drink at a time in 2012: T 53.42;

He had never seen workers lifting two or three boxes of either dog food or coke at the Metcash Blacktown warehouse prior to the Huntingwood warehouse opening in 2011: T 53.46;

He said it was not feasible that the plaintiff could have spent the majority of his shift packing soft drink or dog food: T 54.14;

It was inconceivable that the plaintiff had been offered Panadol for pain by a supervisor on 29 May 2012. The plaintiff would have been referred to a first aid officer and they did not have authority to give out drugs such as Panadol: T 54.27;

[8]Section s 151Z(1)(a) acknowledges that the worker may take proceedings both against the employer liable for compensation, and against any third party, and makes clear that the worker is not entitled to retain both damages and compensation. Paragraph (b) provides for any compensation to be repaid out of damages recovered from the third party and para (c) prevents the worker from recovering any such compensation if he or she has first recovered damages from the third party. In circumstances where the worker has not recovered damages from the third party, para (d) produces the same outcome as between the third party and employer as would be produced if damages had been recovered and para (b) or (c) applied. Finally, consistently with the operation of para (d), paras (e) and (e1) ensure that the third party has the benefit of any amount paid by way of indemnity, either by way of defence or in satisfaction of any judgment in proceedings brought by the worker.
[9]Section 151Z(2) regulates the position where the worker is entitled independently of the Workers Compensation Act to recover damages both from the employer and from “a person other than the worker’s employer”.
[10]It addresses, in the context of there being contribution claims available as between the worker’s employer and any third party liable for damages in respect of the same injury, the fact that modified common law damages are recoverable against the employer in accordance with Pt 5 Div 3 of the Workers Compensation Act. Section 151Z(2)(d) provides that, as between the third party and employer as joint tortfeasor, the amount recoverable by way of contribution is to be determined as if the whole of the damages for which each was liable are to be assessed in accordance with Pt 5 Div 3. Paragraph (c) reduces the damages recoverable by the worker from the third party to take account of the lesser amount that the third party is entitled to recover by way of contribution from the employer because of that modified damages regime.
[11]Finally, and significantly in the present context, para (e) addresses the circumstance that the worker does not commence proceedings against the employer in relation to its independent liability, but recovers compensation under the Act. In that event s 151Z(1)(d) (which as appears above entitles the employer or its insurer to be indemnified by the third party) is to apply “as if the worker had not been entitled to recover damages from that employer”, but subject to the exceptions in s 151Z(2)(e)(i) and (ii). Those exceptions limit or exclude the right to that indemnity depending on whether the amount of workers’ compensation paid by the employer or insurer exceeds the amount of the contribution that “could be recovered” by the third party from the employer as joint tortfeasor.
[12]The significance of this last provision is that notwithstanding there being a difference in the language of ss 151Z(1) and 151Z(2)(a), the employer or its insurer by whom compensation has been paid is entitled to be indemnified by the third party liable, independently of the Act, for damages in respect of the same injury.”

There was various evidence given in relation to the involvement of the plaintiff’s employer, Tru Blue, at the plaintiff’s workplace:

The plaintiff gave evidence that he registered with Tru Blue in January 2012, was called up by Tru Blue and was sent for the medical which he undertook: T 90-93;

The plaintiff was told by Matt from Tru Blue that he had been successful in obtaining the job and needed to attend the defendant’s site for an induction. The plaintiff attended the site and Matt took the employees around and showed them the exits, the goods to be packed, the headset system and the pallet jack machines: T 94;

On occasions the plaintiff said that Matt from Tru Blue came up to him and told him to pick up the pace of his picking: T 101.22. The plaintiff also said he received texts from Matt from Tru Blue that it was necessary for him to pick up the pace if he wanted a permanent job: T 101.38;

The plaintiff gave evidence that Matt from Tru Blue was involved in obtaining his signature on the employee’s site induction guidelines: T 109.20;

The plaintiff agreed that Matt from Tru Blue gave instructions and information to him in relation to safe manual handling at his induction 21 February 2012: T 235.21-.28 cf T 230.13-.20;

The plaintiff gave evidence that Matt from Tru Blue attended the defendant’s premises on a weekly basis when new workers were inducted: T501.4;

The plaintiff gave evidence that he believed he told Matt from Tru Blue that he was lifting more than one box at a time: T510.10-.20;

The plaintiff denied that he went to a meeting before starting at Metcash with Matt from Tru Blue and Mr Miller from Metcash in which they gave him training about how to safely handle boxes: T 300.7. However, the plaintiff also conceded that he was previously aware of safe lifting practices. I have found above that the plaintiff did receive training in safe manual handling from Matt and Mr Miller;

The plaintiff gave evidence that he had never seen Matt from Tru Blue checking on the picking practices of the casual workers: T 307.29. The plaintiff said that he never saw Matt from Tru Blue checking on him in the four months that he was at Metcash: T 307.47;

Mr Bannerman said there were sometimes three but usually two supervisors on duty and denied that there could have been as many as ten supervisors on duty: T 376.12;

Mr Roberts gave evidence that he walked around the warehouse almost every day and observed pickers and packers in their tasks. He also gave evidence that supervisors were on duty consisting of 24 persons on any shift with 16 supervisors walking around the floor of the warehouse observing: T 44.31;

Mr Roberts also gave evidence that officers from Tru Blue were at the Huntingwood site every day and he observed them speaking to the labour hire employees, although he was not involved in this with them: T 51.49;

Mr Miller gave evidence that a representative from Tru Blue accompanied himself and other potential employees on the walk through where there was an induction: T 404.9. Mr Miller gave evidence that during the day there would be six supervisors and a warehouse manager on duty: T 405.28. This is different to Mr Roberts’ evidence but I think it is more likely to be correct and I accept it;

Mr Miller gave evidence that the Tru Blue representatives were made aware of the pick rates at the defendant’s premises. Mr Miller also said that on a daily basis he and a representative of Tru Blue would walk through the aisles and speak to the individual pickers and packers and explain to them the performance rate: T 437;

Mr Miller also agreed that he described the Engineered Standard to the representatives from Tru Blue and he represented to them that it was a safe system.

The issue is whether there should be a reduction in any damages to be awarded to the plaintiff under Section 151Z(2) of the WCA on account of a contribution of the negligence of the plaintiff’s employer Tru Blue.
In Atkinson v Gameco (NSW) Pty Ltd [2005] NSWCA 338, Ipp JA (with whom Giles JA and Hunt AJA agreed) stated as follows at [18]-[19]:

“[18] The mere fact that injury occurred on premises occupied by a third party does not mean that Gameco, as employer, had no duty of care to Mr Atkinson. For example, the content of the duty of care owed by an employer that operates a labour hire business is not diminished by the fact that the employees are sent off to work for customers that hire them: TNT v Christie (at para 67). Nevertheless, the fact that the premises are in the control of a third party will be a relevant matter when considering whether the employer has taken reasonable care for the safety of the employee: Glass, McHugh and Douglas “The Liability of Employees in Damages for Personal Injury” (2nd Ed 1979) at 54.
[19]In Bourke v Victorian WorkCover Authority [1999] 1 VR 189 Winneke P (with whom Brooking JA and Buchanan JA agreed) said:
True it is that, where an employer sends his employee to work at or in premises occupied or controlled by another, … occupation and control by another person may be a relevant fact in considering whether the employer had been in breach of his own independent duty to the employee. But the fact that the employee’s work is required to be done on premises of another does not absolve the employer of his duty. Its impact upon whether he had breached his duty will depend upon all the circumstances. As Lord Denning said in Smith v Austin Lifts Limited [1959] 1 WLR 100:
Notwithstanding what was said in Taylor v Sims & Sims [(1942) 167 LT 414; [1942] 2 All ER 375], it has since been held, I think rightly, that employers who send their workmen to work on the premises of others cannot renounce all responsibility for their safety. The employers still have an overriding duty to take reasonable care not to expose their men to unnecessary risk. They must, for instance, take reasonable care to devise a safe system of work … ; and, if they know or ought to know of a danger on the premises to which they send their men, they ought to take reasonable care to safeguard them from it. What is reasonable care depends, of course on the circumstances …

(See also Wilson v Tyneside Window Cleaning Co [1958] 2 QB 110 at 121–2 per Pearce LJ; Sinclair v William Arnott Pty Ltd (No 2) (1963) 64 SR (NSW) 88 at 91–2 per Walsh J).

One can conceive of a multitude of circumstances where workmen are sent to work upon premises controlled by others in which the impact upon the discharge of the employer’s duty will vary. It will depend no doubt upon such matters as the employer’s opportunity to inspect the premises, the length of time the employer has put his employees to work on the premises, the awareness in the employer of the danger, his capacity to shield his employees from the danger and various other factors.”

In my view, relevant factors to take into account include the following:

Matt from Tru Blue was attending the defendant’s premises on a regular basis for the induction of new employees;

Matt from Tru Blue was talking to its employees in relation to the pick rate on a frequent basis;

Representatives of Tru Blue were accordingly at the defendant’s premises during an induction and would have seen other workers engaged in picking;

The premises were occupied and controlled by the defendant, not Tru Blue;

In my view it was reasonable for Tru Blue to inspect the defendant’s premises to take reasonable steps to ensure that it was a safe place of work. There was no evidence before the court that it had done so in a formal sense;

In my view the risk to workers from picking heavy boxes of dog food from the confined slot underneath a 1.4 metre shelf was apparent. In my view a reasonable person in the position of the plaintiff’s employer would have raised the issue with the defendant;

It seems unlikely that the defendant would have altered the system of work if Tru Blue had raised the issue with them. This is particularly the case in the light of WorkCover’s response to the plaintiff’s complaint in relation to the system of 1 May 2012: see Exhibit C.

In my view a reasonable employer in the position of Tru Blue, having undertaken a review of the premises for safety concerns, would have not made its employees available until steps were taken to remedy the placement of the dog food in either a 1.8 or two metre pick slot or in an open area to allow easy access to the heavier goods and clear supervision in relation to the number of boxes picked at any one time. This constituted a breach by it of its duty of care. I take into account that the defendant had the day to day supervision and management of the premises.
Taking into account all of these matters, in my view it is appropriate to reduce any damages that the plaintiff would recover from the defendant by the percentage amount that the plaintiff would have been entitled to recover from Tru Blue if he had sued them as a joint tortfeasor in accordance with Section 151Z of the WCA which I assess to be 20% in all the circumstances.

Damages

In summary, I have found:

The defendant has breached its duty of care to the plaintiff;

Causation has not been established;

There should be a 20% reduction to any damages awarded for contributory negligence;

There should be a reduction under Section 151Z(2) of the WCA in the amount of 20%.

I will now proceed to an assessment of damages in the event I am in error on the causation issue.
In relation to the injuries I have found arising from the accident the following is a summary:

I find that the plaintiff suffered a back injury on 1 June 2012 which caused a musculo-ligamentous strain and soft tissue type injury and ongoing pain to the plaintiff of an intermittent type which stopped him working. I also find that the 1 June 2012 injury caused modest disc bulging. I accept that the plaintiff has had some continuing back problems, although not to the extent which he claims. The plaintiff’s problems in his back do not involve an injury to the L5 nerve root and they are of a reasonably mild nature;

Apart from psychological issues, the plaintiff has according to the conclave report full capacity for employment without restrictions;

The plaintiff has a psychiatric condition arising from the accident being a persistent depressive disorder with a differential diagnosis with adjustment disorder. The plaintiff requires continued pain management. The plaintiff’s current psychiatric condition is of a mild to moderate severity and he requires ongoing treatment of his depression for a period of six months to a year at least which may lead to positive results;

The plaintiff was clearly prone to, and had a history of, depression from his medical history from 2009-12.

In his report dated 2 March 2015, Dr Allnutt concluded:

“In my opinion the injuries of 29 May 2012 and 1 June 2012 contributed significantly to his current mental state.
…His disabilities impact on his capacity for employment, with reduced energy and motivation (which impacts on his potential to engage in the workforce), his poor self-esteem and demoralisation (which undermines his motivation to seek work), his cognitive difficulties and loss of concentration, all of which would impact on his performance at work.”

I accept this summary of the plaintiff’s current psychiatric position even though Dr Allnutt assumed a more severe back injury. However, I find that the psychiatric condition arose out of the plaintiff’s back condition as set out in Dr Bodel’s opinion. I also take into account the summary of the plaintiff’s current position given by Ms Stylianou which I have referred to above and which I accept, in preference to that given by the plaintiff.
In my opinion, based on all the medical evidence, the plaintiff requires ongoing pain management and psychiatric management if he is to have any real prospect of returning to any work. In my view, from all of the evidence, the plaintiff’s current psychiatric condition presently prevents his return to work to any suitable occupation.
The parties have each made written submissions in relation to the appropriate damages to be awarded. The following table sets out the written submissions made by the parties:

Head of damage

Plaintiff’s submission

Defendant’s submission with alternative submission

Non-economic loss

35% -

$302,500.00

10% - Nil/28% - $84,500

Past out of pocket expenses

$83,641.22

$10,000/$83,641.22

Future out of pocket expenses

$30,378.00

Nil/$2,000

Past economic loss

$184,872.48

$6,000/$58,000

Past superannuation

$20,539.38

$660/$6,380

Future economic loss

$523,719.00

Nil

Future superannuation

$57,718.80

Nil

Fox v Wood

$20,015.80

$20,015.80

Past care

$15,651.25

Nil/$15,651

Future paid care

$574,923.85

Nil/$8,385

Total

$1,813,959.78

Section 151Z(2) deduction

20%

50%

Contributory negligence

Nil

25%

Total

$1,451,167.82

$36,675.80/$278,573.02 less 50% less 25%

Non-economic loss

The plaintiff’s loss is to be assessed as a percentage of a most extreme case under Section 16 of the CLA.
On the conclave orthopaedic surgeon/neurosurgeon report the plaintiff’s back injury has recovered and he is fit for work. Dr Bodel also says the plaintiff may have a slightly reduced work capacity. I prefer the conclave opinion to those opinions referred to in paragraphs 36-39 of the plaintiff’s written submissions. This is because the conclave report is a detailed and considered report, was prepared following the preparation of other detailed reports by the three doctors and includes Dr Bodel who is the plaintiff’s medico-legal orthopaedic surgeon and has reviewed him on a number of occasions. However, I accept the opinion of Associate Professor Boesel that the plaintiff has an entrenched pain disorder which requires careful management: see Exhibit A, page 455. The continuation of the pain disorder appears to be as a result of a psychological reaction following the initial back injury: cf plaintiff’s written submissions, paragraph 52.
The plaintiff’s non-economic loss should in my view be assessed on the basis of Dr Allnutt’s view that the plaintiff has a persistent depressive disorder with a differential diagnosis of adjustment disorder and a pain condition requiring pain management and ongoing psychiatric assistance. There is some uncertainty about whether the plaintiff’s condition will respond.
Taking into account all the evidence and the circumstances, I assess the present case at 28% of severity (as a proportion of a most extreme case) which equates to 14% of $605,000 being $84,500 (rounded down).

Past economic loss

The plaintiff worked various hours and for a differing number of days per week during his time at Metcash: Exhibit 12. He only worked more than 10 hours on one day on one occasion and often worked for less than 6 hours in a day. The plaintiff had a relatively patchy prior work history with lengthy periods of unemployment. This must be taken into account in assessing past and future economic loss: see defendant’s written submissions paragraph 575.
I take into account the principles set out in paragraphs 569-573 of the defendant’s written submissions.
The plaintiff gave evidence that he planned to work the rest of the year at Metcash and then finish his last two years of his motor mechanic apprenticeship: T110.10. The plaintiff’s extreme interest in cars made that a likely target for him. There is no reason not to accept that evidence or to take the view that the target was not realistic.
Mr Miller gave evidence that in early to mid-2012 the policy of the defendant was to offer casuals permanent employment with the defendant after a 12 week probationary period based on a casual’s absenteeism, performance and attitude: T478.30-38. The plaintiff’s performance at the time seems to be good in relation to the engineered standard pick rate: Exhibit 11. There was no evidence suggesting absenteeism or other problems. The complaint by the plaintiff to WorkCover (see Exhibit C) would unlikely to be taken into account as the plaintiff had raised a safety issue.
Accordingly, I find that the plaintiff is likely to have been offered permanent employment soon after 1 June 2012, probably by 1 July 2012. Mr Miller gave evidence that permanent employees were paid about $22 per hour for a 38 hour week: T479.14-.17. This equals $836 per week gross or approximately $715.00 net. This equals $21,736 ($836 x 26 weeks).

From 1 January 2017 to the date of the hearing, in my view, the plaintiff:

Would have been a third year motor mechanic apprentice in 2013;

Would have been a fourth year mechanic in 2014;

Would have likely qualified as a mechanic and worked in that job from say 1 January 2015 to date. However, the completion of the apprenticeship by the plaintiff may have exposed him to some risks of unemployment.

The rates set out in Exhibit G for the relevant periods are:

Third year 2013: $692.10 per week gross;

Fourth year 2014: $718.60 per week gross;

Thereafter $783.30 per week gross.

In addition, the plaintiff’s average weekly earnings should be allowed for the period 1 June 2012 to 1 July 2012. This, in my view, is a period when his back injury would have prevented him from working. The plaintiff submits that during the time he worked for the defendant the plaintiff earned on average $620 per week: Exhibit A, page 310, plaintiff’s submissions, paragraph 63. I allow $2,400 for this four week period.
Due to the plaintiff’s prior medical conditions and periods of unemployment up to 2012 and usual risks there should be a 15% deduction for vicissitudes.
I will leave it to the parties to calculate the damages under this head based on the above findings.

Past loss of superannuation

The calculation of past loss of superannuation at 11% of the past gross loss should be calculated following the calculation of the past loss of earnings.

Fox v Wood

The amount for Fox v Wood tax payments is agreed at $20,015.80.

Future economic loss

The parties’ written submissions suggest under this head:

Plaintiff: $700 per week loss based on a 880.2 multiplier for 35 and a half years with a 15% deduction for vicissitudes totalling $523,719: plaintiff’s submissions paragraphs 67-70;

Defendant: Nil as it is assumed that any incapacity for work only continued until Dr Bodel’s assessment in 2015: defendant’s submissions paragraph 580.

I take into account the following matters:

The authorities referred to in paragraphs 569-573 of the defendant’s submissions;

The plaintiff has been certified by Dr Cameron in 2013 as having no current work capacity: Exhibit A, pages 423-442;

Dr Boesal’s recommendation in May 2015 for multi-disciplinary pain management: Exhibit A, page 443;

Dr Allnutt’s psychiatric opinion that the plaintiff’s disabilities impact on his capacity for employment: Exhibit A, page 44 (report dated 2 March 2015);

The similar opinion of Dr Allnutt in the conclave psychiatric report dated 4 November 2016: Exhibit 6, page 5;

The evidence set out above from Ms Stylianou of the plaintiff’s current restrictions;

The plaintiff’s presentation at the trial;

The plaintiff’s limited work history only in manual jobs, including the plaintiff’s unemployment for fairly lengthy periods including prior to commencing work for the defendant;

Ms Stephens’ comments on the plaintiff’s mental state and fatigue severity state: Exhibit A, pages 87-89;

Report of Ms Michelle King, occupational therapist dated 3 November 2016 particularly at paragraphs 5.1.3 – 5.1.3.1 Exhibit 3, pages 322-323;

The fact the plaintiff has not worked for five years;

All of the medical evidence;

The plaintiff’s medical history and employment history prior to February 2012;

The parties’ written submissions.

I also take into account that following a period of pain management and the recommended psychiatric/psychological review (Dr Allnutt, Exhibit A, page 44) the plaintiff’s condition may improve if his symptoms are treated thus allowing some part-time work: see Dr Allnutt, Exhibit A, page 43, paragraph 3. However, there is a degree of uncertainty in this.
In the light of all these matters, in my view the plaintiff’s future economic loss for loss of earning capacity should be allowed at $300 per week. The plaintiff is 31, having been born in October 1985. Having regard to his employment history in blue collar work I think it is highly unlikely that he would have worked beyond 65 years of age. I therefore allow $219,504 (33 and a half years = multiplier 860.8 x 300 = $258,240 – 15% deduction for vicissitudes). In selecting $300 per week I have made an allowance for the plaintiff returning to work in some capacity after psychiatric/psychological treatment as recommended.

Past out of pocket expenses

The plaintiff’s past out of pocket expenses are agreed at $83,641.22.

Future out of pocket expenses

I refer to the various written submissions of the parties: plaintiff’s written submissions paragraphs 61-62; defendant’s written submissions paragraph 568.
I agree with the plaintiff’s written submissions that an allowance should be made for future psychiatric treatment, a review of medication, future medication, future psychological consultations and pain management: see report of Dr Allnutt at Exhibit A, page 44. However, I consider that with appropriate treatment the plaintiff’s need for lifetime doctors’ visits and medication for pain management and depression is likely to be avoided.
Taking into account all the evidence and the submissions, I would allow a buffer under this head of $20,000.

Domestic assistance

The plaintiff makes no claim for domestic assistance to 31 July 2015: plaintiff’s written submissions, paragraph 74.
Since 1 August 2015 the plaintiff has lived with Ms Stylianou. The evidence shows:

The plaintiff completes very few domestic tasks around the house apart from simple sweeping, simple cooking and filling the top drawer of the dishwasher;

Ms Stylianou does all the rest of the cleaning, washing, cooking and tidying. She does not have time to complete gardening/mowing as she works fulltime and is busy with the other domestic tasks;

Ms Stephens in her report allows for 6.25 hours per week for the past and 11.75 hours per week for the future: Exhibit A, pages 89-94. However, this is primarily based on Mr Williams’ alleged back condition. It otherwise is consistent with the evidence;

Ms King in her report relied on by the defendant only allows for six hours for past gratuitous care: Exhibit 3, page 324. Ms King found that during her assessment the plaintiff was “pain focussed and task avoidant”: Exhibit 3, page 301, paragraph 2.6.3.

Ms King stated that Ms Stephens’ assessment of the plaintiff did “not differ significantly from my own”: Exhibit 3, page 315. However, Ms King said that Ms Stephens appeared “to assume a causal link between the plaintiff’s current symptoms and [the] subject incident without any attribution to his pre/co-morbidities” (Exhibit 3, page 315). Ms King noted that during her assessment the plaintiff “appeared to be in considerable pain and presented as fatigued with poor concentration”: Exhibit 3, page 322. Future care was not recommended by Ms King “on the basis of available evidence of injury confirmed as arising from the subject incident”: Exhibit 3, page 323;
In my view, the evidence of Ms Stylianou as to the plaintiff’s condition is significant. I accept her evidence as reliable.
Taking all the evidence into account I allow the following:

Six hours per week from 1 August 2015 to 26 May 2017 at $26.36 per hour: Section 15(4) and (5) of the CLA. I am satisfied that many tasks are performed by Ms Stylianou in circumstances where it would have been expected that the plaintiff would have performed those tasks but for his injuries. This totals $15,002.60 ($26.36 x 6 = $158.16 x (664 ÷ 7) = $15,002.60);

A buffer of $50,000 for future domestic and commercial assistance on the basis that it is provided for 8 hours per week for 1 year (allowing an amount for commercial gardening, lawn mowing and heavy work) reducing after that to a likely 6 hours per week for an uncertain period while the plaintiff rehabilitates into likely part-time work and is able to perform more domestic tasks. In my view the need for this is established by the evidence.

The total allowed for future domestic and commercial assistance is $65,002.60.

Contributory negligence

As found above, the reduction should be 20%.

Reduction on account of Section 151Z of the WCA

As found above, the reduction should by 20%.

Disposition

I make the following orders:

Judgment for the defendant.

The plaintiff is to pay the defendant’s costs of the proceedings as agreed or assessed.

The parties have leave to apply on two business days’ notice to vary the costs order in (2) above.

Exhibits are to be returned after 28 days.

**********

Decision last updated: 26 June 2017

Medium Neutral Citation:	Williams v Metcash Trading Limited [2017] NSWDC 154
Hearing dates:	7 to 11 November 2016; 30 November 2016; 1 December 2016; 1 to 2 March 2017; 26 May 2017
Date of orders:	23 June 2017
Decision date:	23 June 2017
Jurisdiction:	Civil
Before:	Dicker SC DCJ
Decision:	(1) Judgment for the defendant. (2) The plaintiff is to pay the defendant’s costs of the proceedings as agreed or assessed. (3) The parties have leave to apply on two business days’ notice to vary the costs order in (2) above. (4) Exhibits are to be returned after 28 days.
Catchwords:	Torts – negligence – workplace injury - whether defendant provided a safe system of work – whether shelf height posed an unreasonable risk - causation - nature and extent of plaintiff’s injuries
Legislation Cited:	Civil Liability Act 2002 (NSW) Evidence Act 1995 (NSW) Workers Compensation Act 1987 (NSW)
Cases Cited:	Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420 Atkinson v Gameco (NSW) Pty Ltd [2005] NSWCA 338 Ceva Logistics (Australia) Pty Ltd v Redbro Investments Pty Ltd [2013] NSWCA 46 Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 Curtis v Harden Shire Council [2014] NSWCA 314 Czatyrko v Edith Cowan University [2005] HCA 14 Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 Harrington Estates (NSW) Pty Ltd v Turner [2016] NSWCA 369 Mason v Demasi [2009] NSWCA 227 Origin Energy LPG Pty Ltd v Bestcare Foods Ltd [2012] NSWCA 407 Patrick Stevedores Operations (No 2) Pty Ltd v Hennessy [2015] NSWCA 253 South Sydney Junior Rugby League Club Ltd v Gazis [2016] NSWCA 8 State of New South Wales v Wenham [2016] NSWCA 336 Strong v Woolworths Ltd (2012) 246 CLR 182 Takla v Nasr [2013] NSWCA 435 Transpacific Industrial Solutions Pty Ltd v Phelps [2013] NSWCA 31 Verryt v Schoupp [2015] NSWCA 128 Wallace v Kam (2013) 250 CLR 375
Category:	Principal judgment
Parties:	Matthew Williams (Plaintiff) Metcash Trading Limited (Defendant)
Representation:	Counsel: B McManamey (Plaintiff) R O’Keefe (Defendant) Solicitors: Law Partners Compensation Lawyers (Plaintiff) Vardanega Roberts (Defendant)
File Number(s):	2013/00331913

Head of damage	Plaintiff’s submission		Defendant’s submission with alternative submission
Non-economic loss	35% -	$302,500.00	10% - Nil/28% - $84,500
Past out of pocket expenses	$83,641.22	$10,000/$83,641.22
Future out of pocket expenses	$30,378.00	Nil/$2,000
Past economic loss	$184,872.48	$6,000/$58,000
Past superannuation	$20,539.38	$660/$6,380
Future economic loss	$523,719.00	Nil
Future superannuation	$57,718.80	Nil
Fox v Wood	$20,015.80	$20,015.80
Past care	$15,651.25	Nil/$15,651
Future paid care	$574,923.85	Nil/$8,385
Total	$1,813,959.78
Section 151Z(2) deduction	20%	50%
Contributory negligence	Nil	25%
Total	$1,451,167.82	$36,675.80/$278,573.02 less 50% less 25%