Finniss v State of New South Wales

1. [1]

   PAYNE JA: Mr Craig Finniss appeals from orders made by Neilson DCJ in the District Court of New South Wales on 30 June 2022. The appellant was a cleaner employed by Facilities First Australia Pty Ltd (“Facilities First”). The appellant worked at Avalon Public School, where the State of New South Wales, the respondent, was the occupier. The appellant was injured while working at the school when he struck his head on a low doorframe. In the District Court the appellant sued the respondent but not Facilities First. The primary judge dismissed the appellant’s claim.

The primary judgment

1. [2]

   The appellant started working as a cleaner at Avalon Public School in 2005. He was employed successively for what was essentially a continuous period by different companies, being Spotless Pty Ltd, Transfield Pty Ltd, Broadspectrum Pty Ltd and, at the time of his injury, Facilities First.

2. [3]

   The injury occurred on 25 October 2019 in the doorway leading to the storeroom under “Block R”, one of the buildings in the school. Amongst other things, toilet paper and paper hand towels were stored in this storeroom. While collecting two packages of toilet paper from the storeroom, the appellant “before he was wholly outside the doorway of the basement … rose up prematurely, and struck the crown of his head on the lintel of the doorframe”.

3. [4]

   The relevant doorway was 1.485 metres high and 0.79 metres wide. The appellant was approximately 1.8 metres tall. The appellant gave evidence that, for the first 13 years of his employment at the school, he would enter the storeroom about once per school term. From March 2019, due to a change in responsibilities between the appellant and other cleaners, he was required to enter the storeroom every two to three weeks. The primary judge determined that, prior to the injury, the appellant must have entered and exited the storeroom on at least 64 occasions. In cross-examination, the appellant accepted that his ability to perceive that he was not fully through the doorway before standing up may have been impacted by his wearing of a baseball cap.

4. [5]

   There was some conflicting evidence about whether the appellant had made complaints about the low ceiling of, and doorframe into, the storeroom. He gave evidence that he informed various people about issues with the storeroom: at the beginning of 2019, Ms Bronwyn Reynolds, who the primary judge found became a supervisor at Facilities First (the appellant challenged this finding on appeal); in 2018 and the middle of 2019, Mr Jonathon Willis, the general assistant at the school; in the middle of 2019, Mr Alan Moran, a technical support officer at the school; and, in “[a]round June 2019”, Mr Andrew Rankin, the principal of the school.

5. [6]

   The appellant’s evidence was that he told Mr Rankin that the toilet paper and paper towels should be moved out of the storeroom. The primary judge accepted that the appellant told Mr Rankin that people were hitting their heads when entering, exiting and moving around in the storeroom. The primary judge also accepted Mr Rankin’s evidence that the only part of the discussion he recalled about moving the paper products related to whether they were exposed to moisture in the storeroom. The primary judge found that both the appellant and Mr Rankin “were endeavouring to tell me the truth”, that there was no credit issue with the evidence of either witness, and that the “likely explanation for the discrepancy [was] a difference of perspective between the [appellant] and the principal”.

6. [7]

   On 5 June 2019, Mr Rankin directed the general assistant at the school, Mr Willis, to store the toilet paper and paper hand towels in a different location in the school. This direction had not been implemented before the time of the appellant’s injury. When notifying staff via email of this decision, Mr Rankin wrote that “that will mean less bruises on heads!”. During cross-examination, Mr Rankin explained that while he could not recall whether the height of the storeroom was specifically raised with him, it was “never raised as a serious issue”.

7. [8]

   The primary judge found “that the door was low would have been obvious to any adult who was required to use the door”, including to a person exiting the storeroom on the afternoon of Friday 25 October 2019. His Honour found that it “would have been well known to the [appellant] on the day of the accident”. The appellant claimed that as a result of the accident he suffered a neck injury, tinnitus, compressed cervical vertebrae, aggravation of spondylolisthesis and shock.

8. [9]

   The primary judge said that the argument put by the appellant was essentially that Mr Rankin’s direction to move the toilet paper and paper towels from the storeroom ought to have been attended to promptly and that, had this occurred, the accident would not have occurred. His Honour found that s 5G of the Civil Liability Act 2002 (NSW) “is a stand alone provision”, since it contains no chapeau or preface saying that it applies for the purpose of s 5H. He found, based on s 5F, that whether the risk of injury was obvious is to be determined an objective basis, and that “[h]ere, objectively, anybody could ascertain that there was a risk of hitting the top of one’s head if one stood up prematurely when trying to leave the basement of block R”.

9. [10]

   In response to an argument by the appellant that s 5G did not apply, the primary judge said that such an argument “requires me to ignore ss 5F and 5G of the CLA when it does apply to the current case”. His Honour said that, even if he were to find that the respondent owed to the appellant a duty akin to the duty of an employer to an employee, “that does not exclude the operation of the CLA”.

10. [11]

    After setting out s 5B, the primary judge found that “the risk was obvious. It ought to have been well-known to the Plaintiff”. His Honour held that the “real cause of the Plaintiff’s injury was his own act in standing up prematurely which may have been precipitated by his wearing the baseball cap”.

11. [12]

    The primary judge assessed the appellant’s damages on a contingent basis. In relation to apportionment under s 151Z(2) of the Workers Compensation Act 1987 (NSW), the primary judge held that the appellant could not obtain an award of damages from his employer because his permanent impairment was below 15% whole person impairment: s 151H Workers Compensation Act. This was based on medical evidence and his Honour’s “experience, in hearing cases of this nature”. (Section 151Z(2)(e) required an assumption that the worker who had not taken proceedings against the employer was not entitled to recover from the employer.)

12. [13]

    The primary judge found that Facilities First owed a greater duty of care to the appellant than the respondent, for the following reasons: the appellant made a complaint to Ms Reynolds who “continued to be the supervisor after the employer became Facilities First” but did not complain to the school; it was unclear if Facilities First, as the appellant’s employer, conducted relevant enquiries and inspections of the school; and the employer had a legal obligation to provide a safe place of work. His Honour attributed two thirds of the liability to the employer and one third to the school. This relied in part on findings that Ms Reynolds was employed by Facilities First, and that her role as a supervisor at Broadspectrum carried over to Facilities First. The appellant challenged both of these findings of fact on appeal.

13. [14]

    The primary judge found that contributory negligence arose due to the appellant’s knowledge of the doorway. His Honour said he “would assign 12% to 15% of the liability for this occurrence to the Plaintiff’s contributory negligence, such that, for example, the defendant would only be liable for between 18% and 21% of the damages which I shall assess”. This calculation appears to be based on the primary judge beginning with a notional damages award, subtracting 67% for the two thirds liability of the employer, then subtracting a further 12% to15% for contributory negligence.

14. [15]

    Past out of pocket expenses were agreed at $58,476.27. Based on various medical treatments detailed in the medical evidence, his Honour calculated future out of pocket expenses at $42,612:. Past economic loss was agreed to be $91,834 and past superannuation loss $10,102. Future economic loss was calculated at $161,840 and rounded down to $160,000, while future superannuation loss was calculated at $22,400.

15. [16]

    In relation to damages for non-economic loss, the appellant submitted that he ought to be awarded 40% of a most extreme case (calculated as $282,000), while the respondent submitted that he ought to be awarded 26% (calculated as $56,500). His Honour determined, based on the appellant’s experience of pain and suffering and loss of amenities, that his case was one third of a most extreme case. He calculated this at 33%, being $232,500. His Honour calculated the total of those sums at $617,924.27.

16. [17]

    His Honour gave judgment for the respondent and ordered the appellant to pay the respondent’s costs on the ordinary basis until 25 January 2023 and thereafter on an indemnity basis.

Grounds of appeal

1. [18]

   The appellant advanced 17 grounds of appeal:

2. [19]

   The respondent conceded grounds 1 to 9 in the notice of appeal. On 14 August 2023, the respondent filed a notice of contention submitting that the primary judgment ought to be upheld on grounds other than those relied on below:

Consideration

1. [20]

   The concession made by the respondent that appeal grounds 1 to 9 should be allowed was correctly made. The primary judge did not correctly address the pleaded duty of care and failed to properly identify the “risk of harm” as required by s 5B (1) of the Civil Liability Act. It is also correct that the primary judge failed to make any findings in accordance with s 5B of the Civil Liability Act. In particular, the primary judge:

   1. (1)

      did not properly identify the risk of harm and whether that risk of harm was foreseeable;

   2. (2)

      did not find whether the risk was not insignificant; and

   3. (3)

      did not find what precautions a reasonable person in the respondent's position would have taken in the circumstances.

2. [21]

   Further, the primary judge did not address the question of causation under s 5D of the Civil Liability Act. Finally, his Honour erred in his findings on ss 5F and 5G of the Act in circumstances where the appellant disavowed a duty to warn.

3. [22]

   It follows that this Court must determine the matters raised in the respondent’s notice of contention.

4. [23]

   The respondent identified the risk of harm (at trial and in its first contention) as being:

5. [24]

   The appellant initially identified the relevant risk of harm as the risk “that a person could hit their head on a low and unprotected doorframe in the storage facility and be injured”. He submitted that this formulation implicitly contemplated knowledge of that risk. The appellant accepted that the risk of harm formulated by the respondent, expressing familiarity or knowledge with the storeroom and the low doorframe, was appropriate.

6. [25]

   The appellant submitted that neither formulation altered his assertion about what a reasonable person in the position of the respondent would in the circumstances do by way of response to that risk. In writing, the appellant submitted that the risk articulated by the respondent was too narrowly focused on the words “bumped heads”, as those words conveyed something less than “hitting” and were not referred to in the judgment below.

7. [26]

   The respondent submitted that the duty of care owed by it to the appellant arose from the fact that the respondent was the occupier of premises on which the appellant was a lawful entrant. Both parties accepted that the respondent did not owe a duty to the appellant of the kind owed by an employer to an employee.

8. [27]

   The respondent submitted that the risk of harm must be addressed by reference to the characteristics of the relevant plaintiff. Here, the appellant was well aware of the height of the doorway and the risk posed by it given his experience transiting through it. The height of the doorway was obvious and easily observable. The appellant was plainly aware of the risk of hitting his head on the doorway or the ceiling. The respondent submitted that accordingly, the risk of harm should “contemplate the risk that some form of injury may be suffered by a person who was well aware of a clear and obvious risk, but through their own lack of care struck their head on the doorway”.

9. [28]

   Further, while the respondent accepted that it was aware of the risk posed by the height of the ceiling and doorway, “there was no evidence that the harm which could materialise from the risk posed by the lintel of the doorway was of anything more than a person suffering a bump on the head but not resulting in an injury, or if there was an injury one was that was minor” (emphasis in original).

10. [29]

    Section 5B of the Civil Liability Act provides:

11. [30]

    Section 5C provides:

12. [31]

    The correct identification of the risk of harm is central to the operation of s 5B of the Civil Liability Act: Uniting Church in Australia Property Trust (NSW) v Miller (2015) 91 NSWLR 752; [2015] NSWCA 320 at [102] per Leeming JA (Basten and Simpson JJA agreeing). As I have said, the primary judge did not properly identify the risk of harm.

13. [32]

    As I will explain, in this case by reason of s 5B(1)(c) and s 5C(a) of the Civil Liability Act, the outcome of the appeal is the same whether the risk of harm formulated by the appellant in written submissions (“hitting” one’s head) or the respondent (“bumping” one’s head) is adopted. The difference between those formulations may, in a case where the obviousness of the risk is in issue, be important. “Bumping” one’s head is an obvious risk, but it is not so obvious that there is a risk of serious injury. To find an “obvious risk” for the purposes of s 5F of the Civil Liability Act may require a finding that a risk of serious injury is also an obvious risk even though it has a low probability of occurring: s 5F(3). The issue need not be determined here as the only immediate effect in the context of the Civil Liability Act would be to engage s 5G, which forms no part of the appeal. The difference between those formulations may also be relevant to s 5B(1)(b). The risk of bumping one’s head was clearly “not insignificant”, but the risk of hitting one’s head so as to cause serious harm may have been unlikely to occur and therefore arguably insignificant. That is not a matter that is necessary to determine in this case. Finally, the precise nature of the risk will also usually be relevant to contributory negligence.

14. [33]

    I would adopt the respondent’s formulation of the risk of harm as being “that a lawful entrant on the premises who was aware of the dimensions of the storeroom may bump their head on the lintel of the door frame”. I agree that the risk of harm should contemplate the risk that some form of injury may be suffered by a person who was well aware of a clear and obvious risk, but through their own lack of care struck their head on the doorway. In oral submissions Mr Beale, counsel for the appellant, accepted the respondent’s formulation of the risk of harm.

15. [34]

    Ground 1 in the notice of contention should be upheld.

16. [35]

    It may be accepted, as the appellant submitted, that the risk was foreseeable within the meaning of s 5B(1)(a). The lack of evidence of prior serious incidents, although relevant, was not determinative: Francis v Lewis [2003] NSWCA 152 at [57]. The evidence was that Mr Rankin, the school principal, had previously knocked his head. It may also be accepted, as the appellant submitted, that the risk of harm was not insignificant, within the meaning of s 5B(1)(b). This “not particularly demanding” test was here met: Garzo v Liverpool/Campbelltown Christian School [2012] NSWCA 151 at [150]; Collins v Insurance Australia Ltd (2022) 109 NSWLR 240; [2022] NSWCA 135 at [37] quoting Rail Corporation New South Wales v Donald; Staff Innovations Pty Ltd t/as Bamford Family Trust [2018] NSWCA 82 at [140].

17. [36]

    The critical question is whether s 5B(1)(c) was satisfied. The appellant submitted that the issue of taking precautions to protect against carelessness does not arise since “the respondent recognised the risk and agreed to do something about it”. It was, rather, about “protecting careful people from inadvertence” since one had to be cautious when entering the storeroom.

18. [37]

    The appellant submitted that neither party directed attention to s 5C(a) at trial, that it was not explored below, and to the extent it is relevant, that it had been addressed in submissions relating to s 5B(2)(c).

19. [38]

    The appellant’s evidence was that at the time of the accident, the contents of the storeroom were a barbecue, chairs, tools, and fluoro lights. Exhibit G, a bundle photographs of the storeroom taken by the appellant sometime after the accident, [1] shows the fluoro lights, a wheelbarrow, witches’ hats and an area of empty space. The appellant submitted that “relocating the contents of the storeroom could not be seen as increasing any relevant burden”.

20. [39]

    The appellant submitted that there was no evidence the employer was aware of his complaints and that no inference can be drawn from the knowledge of Ms Reynolds.

21. [40]

    In response to the respondent’s assertion that space was at a “premium” in the school, the appellant noted that Mr Rankin conceded that there were two suitable alternative storerooms available at the relevant time for paper towels and toilet paper.

22. [41]

    The appellant relied upon two reasonable precautions which he said should have been taken by the respondent: relocating the storeroom and providing a safe means of passage. The respondent submitted that the first precaution must be understood as relocating the entire contents of the storeroom, while the second precaution was “meaningless”. The respondent submitted that it was not negligent in failing to take the precautions proposed by the appellant.

23. [42]

    In relation to s 5B(1)(c), the respondent submitted that a reasonable person in its position would not have taken either of the two precautions identified by the appellant to address the risk of harm.

24. [43]

    The respondent did not owe a duty of care to the appellant to ensure that the premises were as safe as human skill could possibly make them: ALDI Foods Pty Ltd v Young [2016] NSWCA 109; (2016) Aust Torts Reports 82-272 at [177].

25. [44]

    Critically, the pleaded precaution principally relied upon by the appellant in this Court was to relocate the entire contents of the storeroom which included, at least, a large number of chairs used regularly by the school, light fittings and replacement fluorescent tubes and the paper towels and toilet paper the subject of the appellant’s complaint. The pleading relevantly provided:

26. [45]

    A difficulty arises in that the only evidence relied upon by the appellant was that relating to the moving of the paper towels and toilet paper, not the pleaded precaution of “relocating the storage facility”, which in context means moving the entire contents of the storeroom. The appellant’s written and oral submissions did not grapple with this difficulty.

27. [46]

    The question of whether the respondent owed a duty to take the precaution of moving the contents of the storeroom requires consideration of the burden of taking that precaution: s 5B(2)(c).

28. [47]

    It may be accepted that the relocation of the toilet paper and paper towels was not onerous. However, s 5C(a) provides that “the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible”. This reflects the general law: Jones v Bartlett (2000) 205 CLR 166; [2000] HCA 56 at [19] (Gleeson CJ); Taber v NSW Land and Housing Corporation [2001] NSWCA 182.

29. [48]

    The relevant precautions here must necessarily include those taken to avoid the risk of injury to any person entering the storeroom for any purpose. That is so whether the risk of harm formulated by the appellant in written submissions (“hitting” one’s head) or the one I have accepted (“bumping” one’s head) is adopted. Taking the precaution of moving the entire contents of the storeroom, on the evidence, would not have been possible. The appellant disavowed any suggestion that the school could have changed the building, including by building any additional storage space. The people using the storeroom to collect and store items necessary for the proper functioning of the school were not limited to the appellant. Indeed, even the principal, Mr Rankin, had visited the storeroom more than once, and had himself bumped his head. I conclude that that the storeroom was accessed by staff at Avalon Public School, including the principal, to obtain and store numerous items including (at least) chairs, a wheelbarrow, witches’ hats, a barbecue, tools, light fittings and paper products necessary for the proper functioning of the school.

30. [49]

    Mr Rankin said in relation to the storeroom that “it’s a less-than-ideal storage [space] but, as I've hopefully made clear, space is at a premium at Avalon Public School, and that was why that space was used”. The appellant did not challenge that evidence and did not suggest there was sufficient space elsewhere in the school to relocate the entire contents of the storeroom. Indeed, given that Mr Rankin himself accessed the storeroom from time to time and had himself bumped his head doing so, I infer that if any more convenient space, not involving the risk of harm here identified (or the risk originally proposed by the appellant), were available at Avalon Public School for the contents of the storeroom, then the principal, a user of the storeroom, would have caused the contents to be moved to that new location. The appellant failed to establish that such alternative storage space was available.

31. [50]

    The other suggested reasonable precaution of “[p]roviding persons in the storage facility with a safe means of passage” was meaningless and not seriously addressed by the appellant orally or in writing. It was not proven to be a reasonable precaution which should have been taken.

32. [51]

    It follows that ground 2 in the notice of contention must be upheld.

33. [52]

    The respondent submitted that neither factual causation nor scope of liability causation are satisfied in this case.

34. [53]

    The appellant submitted that factual causation within the terms of s 5D(1)(a) of the Civil Liability Act is made out because on the balance of probabilities, the injury was a result of the respondent’s failure to take reasonable precautions, namely relocating the storeroom after the complaint had been made and Mr Willis’ failure to do so when directed.

35. [54]

    The appellant submitted that it is also appropriate for the scope of liability for the harm suffered by the appellant to be extended to establish causation under s 5D(1)(b). This is because the appellant’s injury could have been avoided had the respondent exercised reasonable care by, inter alia, relocating the paper towels and toilet paper as directed by Mr Rankin.

36. [55]

    As I have explained the appellant failed to demonstrate that a reasonable person would have taken the precaution relied upon. The requirements of s 5B(1)(c) were not established. In those circumstances, a necessary element of factual causation, that “the negligence was a necessary condition of the occurrence of the harm” was not satisfied.

37. [56]

    It may be accepted that if the reasonable precaution required here was merely the relocation of the toilet paper and paper towels, then there were available options to do so. As I have explained, however, this was not the pleaded case and nor was it a legally relevant precaution given the dictates of s 5C(a).

38. [57]

    It follows that ground 3 in the notice of contention must be upheld.

39. [58]

    The appellant did not challenge the apportionment of 12-15% for contributory negligence on appeal. The appellant accepted that the primary judge’s findings relating to the baseball cap and to standing up prematurely were open to him. The appellant submitted that he took reasonable steps to protect himself by ducking, and that he “misjudged when to stand in circumstances where there was an unusually low door entrance”, which may have been partly attributable to his wearing the baseball cap, a normal incident of his work.

40. [59]

    The respondent submitted that the primary judge’s apportionment of 12-15% for contributory negligence was not open on the evidence, and that the apportionment ought to have been 80% [2] or in the alternative a figure higher than 15%.

41. [60]

    The respondent submitted that the primary judge misapprehended the correct approach to a reduction for contributory negligence and the apportionment of liability to the employer pursuant to s 151Z of the Workers Compensation Act. The primary judge made his finding on contributory negligence immediately after his contingent finding with respect to apportionment to the employer. The respondent submitted that his Honour “appears to have taken the approach of adding the apportionment to the employer to the apportionment to the plaintiff for contributory negligence in order to arrive at a figure (of less than 100%) by which the plaintiff’s damages would be reduced”. This approach, the respondent submitted, “may have subverted the primary judge from the true enquiry required by his finding of contributory negligence, which was first to apportion liability on account of the finding of the plaintiff’s contributory negligence, and then having done so, to conduct an apportionment of liability for the purposes of the s.151Z defence”.

42. [61]

    Appellate courts must exercise restraint when interfering with an apportionment assessment: Joslyn v Berryman (2003) 214 CLR 552; [2003] HCA 34 at [157] (Hayne J); Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492 at 493-494.

43. [62]

    There is a problem in reconciling the primary judge’s apportionment for contributory negligence and his earlier finding that the “true cause” of the injury was the appellant standing up prematurely while wearing a baseball cap. If it were necessary to do so, I would set aside the primary judge’s apportionment for contributory negligence as the figure chosen was manifestly inadequate.

44. [63]

    The following factual matters are relevant to apportionment for contributory negligence:

    1. (1)

       The appellant was intimately familiar with the dimensions of the doorway;

    2. (2)

       The risk posed by the doorway was obvious;

    3. (3)

       The appellant was experienced as a cleaner and user of the storeroom;

    4. (4)

       The appellant was not wearing a cap supplied by his employer, and must have known that the cap was likely to impede his vision in exiting the storeroom, as it in fact did; and

    5. (5)

       The principal cause of the appellant’s accident was, with his knowledge of the height of the doorway, that he stood up too early. For the appellant, the precaution against the risk was simple and not onerous, namely, to ensure that he did not stand up until he was sufficiently through the doorway

45. [64]

    On all of the evidence the appellant’s conduct in failing to take reasonable care for his safety was the principal cause of the injury he suffered. This is a case “where the risk created by the defendant is patently obvious and could have been avoided by the exercise of reasonable care on the plaintiff’s part”: Zanner v Zanner (2010) 79 NSWLR 702; [2010] NSWCA 343 at [89]. In the present case the risk was patently obvious to the appellant whether the risk originally formulated by the appellant (“hitting” his head) is adopted or the risk I have found should have been adopted, (“bumping” his head) is adopted.

46. [65]

    On the contingent basis I am addressing this issue, I would have awarded a 70% reduction for contributory negligence as the risk was obvious and could have been avoided by the most basic exercise of reasonable care by the appellant.

47. [66]

    It follows that ground 4 in the notice of contention must be upheld.

48. [67]

    Despite the conclusions I have reached above, that the appellant failed to prove breach of duty or causation, I will briefly address the remaining grounds of appeal: Kuru v State of New South Wales (2008) 236 CLR 1; [2008] HCA 26 at [12]; Boensch v Pascoe (2019) 268 CLR 593; [2019] HCA 49 at [8].

49. [68]

    Ground 10 was that “The primary judged erred in apportioning 25% to the respondent, and 75% of liability to the employer, namely Facilities First Pty Ltd”.

50. [69]

    Ground 11 was that “The primary judge erred in his finding that Bronwyn Reynolds was employed by the employer, namely Facilities First Pty Ltd.”

51. [70]

    The appellant addressed these two grounds together, as the contentions under ground 11 informed the submissions made under ground 10. The appellant said that there was no evidence establishing that Ms Reynolds remained in the same position as supervisor “throughout 2019” or that she became an employee of Facilities First. The appellant’s submission was that when he complained to Ms Reynolds she was employed by Broadspectrum, such that her knowledge could not bind Facilities First. He also submitted that if he were wrong, and it were found that she stayed on with Facilities First, that this would likely have resulted in the same outcome since Mr Rankin’s directive would have been ignored.

52. [71]

    The appellant submitted that the respondent could not point to any evidence in the relationship between it and Facilities First that increased the liability of the employer to the level found by the primary judge.

53. [72]

    As to ground 10, the respondent submitted that the primary judge’s apportionment of liability of two thirds to the employer and one third to the respondent was open and should not be disturbed.

54. [73]

    As to ground 11, the respondent submitted that the evidence established that Ms Reynolds remained in the same supervisor role over the appellant throughout 2019 with the knowledge of his complaint. It further submitted that even if she was not employed by Facilities First when she received his complaint, that once she became employed by them her knowledge was imputed to them.

55. [74]

    As to ground 10, the Court should again be slow to interfere with a finding of an apportionment of this kind: Joslyn v Berryman at [157] per Hayne J; Podrebersek at 493-494.

56. [75]

    On the assumption, contrary to my finding, that the respondent was liable for failing to relocate the contents of the storeroom to another place, the non-delegable duty owed by an employer to its employee was clearly breached here. Facilities First did not engage in a site induction to determine where the appellant was required to work at the school. Assuming that the height of the doorway to the storeroom posed a foreseeable risk of serious injury to the appellant and that a duty was owed to relocate the contents of the storeroom, this was a failure for which his employer was principally responsible. The employer, Facilities First, failed to carry out an inspection, failed to identify the obvious danger in the way that the worker was required to go about his business and failed to then communicate with the occupier to make sure that the necessary arrangements were made in relation to relocation of the contents of the storeroom the appellant says should have been made.

57. [76]

    No error was shown in the contingent apportionment of two thirds to the employer and one third to the respondent favoured by the primary judge.

58. [77]

    As to ground 11, the evidence was equivocal about whether Ms Reynolds remained in the same supervisor role once Facilities First became his employer. I would uphold ground 11. The primary judge should not have attributed Ms Reynolds’ knowledge to Facilities First. This finding, however, would not have affected my assessment of damages or apportionment issues. Facilities First owed the appellant a non-delegable duty to provide a safe system of work of the kind described immediately above. When considering this contingent hypothesis, Facilities First failed in that obligation. That remained the position despite the primary judge making a finding about Ms Reynolds’ role at Facilities First which was not justified by the evidence.

59. [78]

    I would reject appeal ground 10 and uphold appeal ground 11, subject to the contingencies identified above.

60. [79]

    Grounds 13 to 17 are concerned with one aspect only of damages, namely damages for non-economic loss. They do not arise on my findings but I will address them briefly.

61. [80]

    The debate in relation to damages for non-economic loss was in a fairly narrow compass. As outlined above, before the primary judge the appellant submitted that he ought to be awarded damages on the basis that he suffered 40% of a most extreme case while the respondent submitted that he ought to be awarded 26% of a most extreme case. The primary judge ultimately determined that the appellant was entitled to damages on the basis that he suffered one third of a most extreme case, or 33%.

62. [81]

    The appellant submitted that the assessment of a most extreme case does not involve a “discretionary exercise” such that the principles in House v The King (1936) 55 CLR 499; [1936] HCA 40 apply. He submitted that ordinary principles of appellate review apply: Hall v State of New South Wales [2014] NSWCA 154 at [28], [32].

63. [82]

    The appellant submitted that where the primary judge erred in making findings of critical fact based on his own medical knowledge and contrary to the medical evidence, the conclusion reached by his Honour was erroneous, and this Court should substitute its own opinion: Berkeley Challenge Pty Ltd v Howarth [2013] NSWCA 370 at [13]; Basha v Vocational Capacity Centre Pty Ltd [2009] NSWCA 409. He submitted that a finding of 33% was manifestly erroneous.

64. [83]

    The respondent noted the established principle that the determination of non-economic loss involves an “exercise of discretion with which the Court will rarely intervene” which is not “readily … susceptible of appellate review” and requires a demonstration the “conclusion reached by the primary judge was manifestly erroneous”: Wynn Tresidder Management v Barkho [2009] NSWCA 149; (2009) Aust Torts Reports 82-016 at [110] quoting Crystal Wall Pty Ltd v Pham [2005] NSWCA 449 at [49] and Dell v Dalton (1991) 23 NSWLR 528 at 533. It submitted that no such intervention is warranted in this case.

65. [84]

    Section 16 of the Civil Liability Act relevantly provides:

66. [85]

    There remains an unresolved question in this Court about whether the standard of review for a determination under s 16 of the Civil Liability Act is the correctness standard described in Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9 or whether s 16 is an evaluative decision of the kind described in Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17 and Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40. The authorities, pointing either way, are gathered in Hall by Leeming JA at [31]-[32], in Berkeley Challenge by Basten JA at [13], in White v Redding (2019) 99 NSWLR 605; [2019] NSWCA 152 by Macfarlan JA at [25]-[26] and Gleeson JA at [61] (taking different sides of the debate) and more recently by White JA in Chen by her tutor Huang v Kmart Australia Ltd [2023] NSWCA 96 at [12]. It may be that the recent decision of the High Court in GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32 will be relevant to determination of this issue. Following GLJ, an appeal from an evaluative judgment leading to a binary choice is no longer to be determined on discretionary principles. However, it is arguable that s 16 of the Civil Liability Act does not involve a binary choice, but rather the selection of a position along a scale.

67. [86]

    It is unnecessary to determine this issue the present case. Assuming, favourably to the appellant, that the Warren v Coombes standard of review applies, the appellant did not prove he was entitled to damages on the basis that he suffered loss and damage more than one third of a most extreme case.

68. [87]

    The appellant focused, almost entirely, in his submissions on the conflicting evidence of the psychiatrists Dr Cocks and Dr Dinnen, on the one hand [3] , and Dr Samuel and Dr Clarke on the other. Dr Cocks and Dr Dinnen diagnosed major depressive disorder. Dr Samuel and Dr Clarke diagnosed an adjustment disorder. None of those witnesses were cross-examined. The finding of the primary judge that a majority of the experts favoured the adjustment disorder diagnosis was an error, but a non-material one.

69. [88]

    That is because there was abundant unchallenged evidence and unchallenged findings about the effect on the appellant of his symptoms which was directly relevant to statutory question posed by s 6. In summary:

    1. (1)

       After the more significant effects of the injury manifested themselves, the appellant continued to play the drums in a band at public venues. The appellant went on tour after the “breakdown” which the psychiatrists opined caused him to cease employment altogether. The appellant’s ability to continue to work and appear as a drummer in band (and to join a new band) is inconsistent with the suggestion that in April – June 2021 he had a breakdown which caused him to cease employment altogether. The extensive nature of these activities was not disclosed to the psychiatrists or taken into account; Dr Clark simply recording that the appellant played the drums, occasionally with a friend;

    2. (2)

       The appellant was working part time in 2022 and had been involved since his injury in selling a boat and buying a new boat. The primary judge found that the appellant lives four nights per week on that new boat, which is moored in Pittwater near Palm Beach.

    3. (3)

       The appellant continues to perform voluntary work, including at Avalon Public School, operating the ride-on mower;

    4. (4)

       The appellant regularly plays golf.

70. [89]

    The evidence of the psychiatrists did not deal with the significance of these matters. This is particularly so in the case of Dr Cocks and Dr Dinnen, on whose diagnostic opinions the appellant relied. Dr Cocks’ opinion, that the appellant “lacks capacity to return to the workforce”, appears to be a serious overstatement which overlooks significant facts. Dr Cocks’ opinion is of little weight. It was apparently important to Dr Dinnen’s diagnosis that the appellant had “given up surfing and golf”. That was not true. It is clear that the appellant continued regularly to play golf. I accept the respondent’s submission that the appellant gave a materially incorrect history to both psychiatrists. The correct history, which I have summarised immediately above, was not conveyed to either psychiatrist. That incomplete history was a matter which undermined the diagnostic opinions of Dr Cocks and Dr Dinnen.

71. [90]

    Taking into account that correct history, I am not satisfied that the appellant demonstrated that he suffered loss and damage more than one third of a most extreme case. Certainly, the diagnostic opinions of Dr Cocks and Dr Dinnen, in context, did not support any higher percentage.

72. [91]

    The primary judge did not err in his determination of the severity of non-economic loss as 33% of a most extreme case.

73. [92]

    I would reject appeal grounds 13 to 17.

74. [93]

    The appellant has been successful in grounds 1-9 and 11 of the appeal. Nevertheless, by reason of the respondent’s successful prosecution of the notice of contention, the appeal must be dismissed.

75. [94]

    This is not a case where the conduct of the respondent below led the primary judge into the principal errors (the subject of grounds 1-9) that were made. The respondent conducted a case consistent with the one I have now accepted on its notice of contention. If the respondent had led the primary judge into error below, it may well have been that a costs award in favour of the appellant may have been appropriate.

76. [95]

    The respondent lodged its notice of contention on 14 August 2023. The respondent conceded the errors the subject of grounds 1-9 in written submissions filed on 11 August 2023. No time was taken on the hearing dealing with grounds 1-9. Whilst it is true that the appellant also succeeded on ground 11 of the appeal, this related only to a small and non-dispositive issue.

77. [96]

    Despite the success enjoyed by the appellant on grounds 1-9 and 11, in the circumstances of this case there is no reason why costs should not follow the event.

Conclusion and proposed orders

1. [97]

   This is a case where the critical issues must be determined by reference to s 5B(1)(c) and 5C(a) of the Civil Liability Act. The relevant precautions here must necessarily include those taken to avoid the risk of injury to any person entering the storeroom for any purpose. That would involve moving the entire contents of the storeroom to another location. Taking this precaution, on the evidence, would not have been possible. For the foregoing reasons I propose the following orders:

   1. (1)

      Appeal dismissed;

   2. (2)

      Appellant to pay the respondent’s costs.

2. [98]

   STERN JA: I agree with the orders proposed by Payne JA and with his Honour’s reasons for proposing those orders.

3. [99]

   BASTEN AJA: I also agree with Payne JA.