De Vries v JNC Group Australia Pty Limited

1. [1]

   The plaintiff alleges he was injured on 13 September 2012. He says that this was the fault of the defendants; they were negligent. He seeks damages from both of them.

2. [2]

   The second defendant, known as Speedie Staff Solutions (‘Speedy’), was a labour hire company. It provided the plaintiff to the first defendant to work as a labourer. The first defendant (‘JNC Group Australia Pty Ltd’) was responsible for the daily supervision of the plaintiff.

3. [3]

   The action is primarily governed by the Civil Liability Act 2002 (NSW) (‘CLA’) and the Workers Compensation Act 1987 (NSW) (‘WCA’).

4. [4]

   The defendants have denied liability to the plaintiff. They doubt there ever was an injury as alleged by the plaintiff. If liability is found, they have alleged contributory negligence and have filed a cross-claim against each other.

5. [5]

   The plaintiff seeks damages from the first defendant under the following heads: non-economic loss, past and future economic loss, Fox v Wood damages, past and future medical expenses and past and future gratuitous care.

6. [6]

   The damages claimed against the second defendant are past and future economic loss and Fox v Wood damages.

7. [7]

   The economic loss claimed against both defendants includes lost superannuation benefits.

8. [8]

   In case they are liable, the defendants say there is little wrong with the plaintiff as a result of the workplace accident. There is no doubt the plaintiff has a serious back condition, but its origin was contested. There was a concerted attack on the plaintiff’s credit, to the extent of suggesting to him that he was entirely dishonest.

Leave to continue against the second defendant

1. [9]

   Section 151D of the WCA says that legal proceedings against an employer by a “person to whom compensation is payable”, as is the case here, must be commenced proceedings within three years of the date of the injury. Provision is made for leave outside of this period.

2. [10]

   The proceedings against the first defendant were commenced in 2015 in the District Court. They were placed in the “inactive list”, pending clarification of the plaintiff’s ability to sue the second defendant. Proceedings against the second defendant were commenced, also in the District Court, in December 2019.

3. [11]

   The second defendant was the plaintiff’s employer. Appropriately, it neither opposes nor consents to the grant of leave. I made an order on the first day of the hearing in the terms of Order 1 of the plaintiff’s notice of motion, filed on 15 June 2023, but indicated my reasons would be provided in the principal judgment. These are my reasons.

4. [12]

   The history of the proceedings is set out in the affidavit of Mr Michael Barnes, dated 15 June 2023. A notice of motion was filed on the same date seeking leave.

5. [13]

   Mr Barnes is the plaintiff’s solicitor. He first saw the plaintiff on 25 August 2014. In order to commence common law proceedings, Mr Barnes was aware that the plaintiff needed to have been assessed as having a whole person impairment of 15% or more. The insurer would not agree to such an assessment.

6. [14]

   It was not until September 2016 that a Certificate of Determination was obtained from the Workers Compensation Commission, in favour of the plaintiff. On 31 May 2018 the plaintiff accepted the insurers offer to agree on a 16% whole person impairment. This agreement generated a work injury damages claim and in turn, a denial of the claim on 14 November 2018. A pre-filing statement was served on 27 June 2019. This action had the effect of halting the passage of time, pursuant to s 151DA of the WCA.

7. [15]

   The parties then agreed that the plaintiff’s notice of motion should be determined at the commencement of this hearing. My view, notwithstanding the lengthy period of time that has elapsed, is that the delay has been sufficiently explained to enable me to extend time. I think the broad discretion described in Howley v Principal Finance Pty Ltd [2014] NSWCA 447, favours this approach. This is particularly so in the light of there being no suggestion of prejudice advanced by the first defendant.

The witnesses

1. [16]

   All of the lay witnesses gave evidence through evidentiary statements followed by cross-examination. In this judgment, a reference to a witness ‘stating’ a matter refers to their evidentiary statements. Some witness statements were tendered, by consent, without a requirement for cross-examination. The second defendant did not call any lay evidence or tender any witness statements.

The plaintiff’s evidence

1. [17]

   The plaintiff was born in 1983. He completed Year 12 but stated that his strengths “were the more hands-on or practical ones”. His lack of sophistication was evident in his oral evidence.

2. [18]

   After school the plaintiff did a variety of outdoor jobs. He worked as a farmhand for his grandfather for about two or three years, for a cleaning company, as a labourer on Fraser Island and as a driver for Tip Top bakery.

3. [19]

   In 2009 the plaintiff moved, with his mother, to Uralla in northern New South Wales. This is a small town which did not offer much employment, so the plaintiff sought work in Armidale which is approximately 15 to 20 minutes away by car.

4. [20]

   At the end of 2010 the plaintiff found employment with the second defendant, a labour hire company. He said that no induction was provided when he commenced this employment. His contact with the second defendant was through Ms Lisa Morley.

5. [21]

   After some work with a builder the plaintiff was sent to the first defendant, where he started work on 5 January 2011. Once again there was no induction, and in particular no “testing or assessment” of his capabilities. He was under the supervision of a Mr Jeremy Blanch. The work included general labouring duties, some road construction work and involvement in the National Broadband Network (‘NBN’) rollout.

6. [22]

   After a few days Mr Blanch told the plaintiff that there was a new item of equipment, called a Vac truck. The Vac truck comprises a flatbed truck with a Ditch Witch mounted on the tray.

7. [23]

   The Ditch Witch is intended to operate through two devices: it has a vacuum function and a high-pressure hose function. The vacuum might be used to remove debris from a hole which had been loosened by the high-pressure hose. The controls for the Ditch Witch, because it is of American origin, are on the right side of the vehicle. Accordingly, if the truck is parked alongside a kerb, the controls need to be operated from the far side of the truck.

8. [24]

   The plaintiff stated he was shown how to start the vacuum motor but told no more than “that sucks, that blows”, followed by “you should just figure out the rest of this for yourself”.

9. [25]

   One of the jobs requiring the use of the Vac truck was the cleaning out of Telstra pits. This is what the plaintiff was doing when he says he was injured.

10. [26]

    There were varying lengths of vacuum hose and they could be joined together to reach a desired length. There was a PVC tube at the end of the hose which was inserted into the pit. Sometimes the hose would be much longer than the distance from the truck to the pit. This meant that the hose would gather behind the operator.

11. [27]

    The plaintiff stated that because he received no instruction on how to operate the equipment, he “developed [his] own way of operating the Vac truck”. He continued:

12. [28]

    A good deal of the work done by the first defendant was for a company called Silcar, which was responsible for the NBN work. The plaintiff stated that he would be sent to the Silcar depot where he would be told which sites he should visit to operate the Vac truck.

13. [29]

    On 13 September 2012 the plaintiff was assigned to work on cleaning out Telstra pits. He started the day by driving the Vac truck to the Silcar depot where an employee, Barry, gave him directions as to the location of the pits. After cleaning out about 20 pits, the plaintiff arrived at a pit in Barney Street.

14. [30]

    There was a pit near the kerb, on a grassy nature strip. After parking the Vac truck the plaintiff removed the covers to the pit which he noticed was about 600 millimetres deep and contained about 150 millimetres of sediment. The plaintiff connected the vacuum hose to the tank on the truck and unwound the high-pressure hose. He then returned to the truck to switch on the engine that controlled the vacuum.

15. [31]

    The plaintiff stated that as he returned to the pit, he noticed an unusual noise which he thought might indicate that something was stuck in the hose. He stated that he took up the “blaster in my right hand and placed the suction hose over my left shoulder holding it in place with my left hand in accordance with my usual practice.” He continued:

16. [32]

    The plaintiff stated that he felt pain in his right leg and numbness, or pins and needles, in his right foot. The latter condition has continued until the present.

17. [33]

    Following an injury some months before to his back, the plaintiff knew that he was supposed to report any injury straight away. But he did not do so on this occasion because he thought it would be something he would “just shake off and be okay”. He finished his work that day (a Thursday) and worked the whole of the following day. Over the weekend the pain increased so that late on the Sunday he rang Mr Blanch to say he would not be working the following day.

18. [34]

    The next day, September 17, the plaintiff attended the Emergency Department at Armidale Hospital. The hospital note records the plaintiff giving a history that the previous Thursday he “tripped + fell on pipes at work”.

19. [35]

    This is a convenient time to note that there was a good deal of cross-examination about the histories given to staff at the Armidale Hospital. The questions immediately raised the concerns expressed by Basten JA in Mason v Demasi [2009] NSWCA 227 (‘Mason’), at [2]:

20. [36]

    None of the medical staff who recorded any of the histories was called to give evidence. The entries might be regarded as typical of Emergency Department notes in which historical detail is perhaps not as important as identifying the cause of the patient’s complaints. I have treated the notes with caution.

21. [37]

    This caution was given substance in the oral evidence of one of the experts, Dr Bentivoglio, who had read the word “joints” as “jerks”, causing him to have a completely different interpretation of the notes.

22. [38]

    The first defendant submitted that, rather than Mason, the medical notes fell more into the category described in Commonwealth Financial Planning Limited v Couper [2013] NSWCA 444, at [63]:

23. [39]

    I disagree that this case is more akin to Couper than Mason. Firstly, there is no “wealth” of medical records at issue in this matter concerning alcoholism. There is only one record. Secondly, while there is some detail given, I think it is equally consistent with the development of a concocted story. The plaintiff said the doctor was sceptical. One can well imagine the plaintiff starting off with falling out of a tree, the doctor then demanding how such an event might occur, the respondent saying he was intoxicated and so on.

24. [40]

    My reference to a concocted story relates, as will be seen below, to the plaintiff attending the hospital on 27 December 2012 when he gave a history of falling out of a tree.

25. [41]

    Returning to 17 September 2012, an ultrasound of the plaintiff’s right leg was performed which revealed no abnormality. He was told the problem seemed to be of a soft tissue nature and he should rest with analgesics and that he should see a physiotherapist. He was given an off-work certificate for two days. Perhaps surprisingly, the hospital staff did not associate the leg pain with a possible injury to the plaintiff’s back.

26. [42]

    The plaintiff stated that he did not have a general practitioner at the time. This was the subject of a number of questions because the plaintiff had in fact previously seen a general practitioner in Uralla. The identity of the general practitioner (Dr Hughes) is also recorded in the hospital notes.

27. [43]

    The plaintiff did not go back to work for two days and then returned to work on 20 September 2012. The plaintiff went to the first defendant’s office on 24 September 2012 where he obtained a claim form and then later a medical certificate from the doctor he had seen at the hospital.

28. [44]

    The plaintiff attended the hospital again on 20 October 2012 with a bleeding lip. Stitches were inserted and then removed ten days later, on 30 October 2012, again at the hospital.

29. [45]

    The plaintiff and some of the medical practitioners were cross-examined about the two October hospital visits to the effect that if the plaintiff was in as much pain as he asserts, then why is there no such history given during these visits. While initially a point attracting some merit, examination of the notes annuls that merit:

30. [46]

    The plaintiff stated that despite being in “significant pain” he continued to work and did so until he was terminated on 15 November 2012. The circumstances of his termination were that he attended a Silcar training session where he was subjected to a breath test. He failed. There was a zero-alcohol tolerance policy in force.

31. [47]

    The plaintiff said that following his termination, on a date he could not specifically remember, he returned to the hospital but was turned away because he was told that he should see a general practitioner because his complaint was work-related. The plaintiff said he did attempt to consult a local general practitioner but was told that the doctor was not taking on new patients.

32. [48]

    The plaintiff said that by reason of his continuing pain he returned to the hospital on 27 December 2012, effectively desperate to be seen about his continuing pain, but conscious of the fact that on his previous attempt to obtain help at the hospital he had been turned away because the injury was work-related.

33. [49]

    In order to overcome this quandary, the plaintiff lied to the hospital staff. The plaintiff described the events this way:

34. [50]

    The triage notes record:

35. [51]

    The above entry does not mention falling out of a tree, so is perhaps inconsistent with the plaintiff’s description set out above. However, this is a triage note which does not pretend to be precise. It also contains obvious conclusions of the staff, for example “weight bearing”.

36. [52]

    Having progressed through triage, the plaintiff saw a doctor whose notes state:

37. [53]

    As mentioned in his statement, the plaintiff said he thought the doctor was sceptical so he gave her an accurate history. The notes record:

38. [54]

    The plaintiff stated that he returned to the hospital on 11 February 2013, but was told that he should see a general practitioner in order to have a scan of his back. He then started to consult a Dr Chowdhury, who in turn referred him to an orthopaedic surgeon, Dr Diebold. He was told that the problem emanated from his back. Accordingly, he lodged an Employee Recurrence Claim Form with Allianz Insurance.

39. [55]

    Dr Diebold sent the plaintiff for an MRI scan and referred him to a Dr Winder, a neurosurgeon. Surgery was advised, and the plaintiff underwent a right L5/S1 microdiscectomy on 8 October 2013.

40. [56]

    The surgery did help, and the plaintiff returned to work the following year. By this time, he had taken up with a Ms Maddy Norton, a medical student. They moved to Newcastle for her studies.

41. [57]

    The plaintiff continued to have pain in his back and a request was made for further surgery. The insurance company languished for 21 months before giving approval. This delay did not help the plaintiff’s psychological condition which was steadily deteriorating. The plaintiff had further surgery on 28 November 2016.

42. [58]

    In 2017 the plaintiff and Ms Norton moved to Queensland because Ms Norton had been offered employment in a hospital.

43. [59]

    In April 2018 the plaintiff commenced work at a funeral home where he remained for some time. In October 2019 he had a cortisone injection.

44. [60]

    The work at the funeral home continued for about 18 months. There was little physical demand on the plaintiff because most of the lifting was performed mechanically. In September 2019 the plaintiff’s back became more painful and he found it difficult to continue his work. His position ended on 16 January 2020. Since that date the plaintiff has had some employment with Meals on Wheels, but this only lasted for three months while his position was sponsored.

45. [61]

    The plaintiff has continued to have pain and his psychological condition has worsened to the extent that he now suffers from a major depression.

46. [62]

    The plaintiff and Ms Norton (now Dr De Vries) were married in December 2022. They had a daughter in February 2023. The plaintiff has not worked since his employment with Meals on Wheels.

47. [63]

    As I have said, the plaintiff’s credit was strenuously tested, the principal subjects of attack were:

Alcohol

1. [64]

   The plaintiff stated:

2. [65]

   Despite this frank admission, the first defendant in cross-examination of the plaintiff, sought to, perhaps unfairly, emphasise the plaintiff’s drinking problems by going into the detail of his previous encounters with the police. The detail did not dent my favourable impression of the plaintiff.

3. [66]

   I was provided with police records from both Queensland and New South Wales. They confirm the plaintiff was a heavy drinker as a young man. But they do little else, and it is difficult to understand why they were so extensively tendered.

4. [67]

   An examination of the dates on which the plaintiff was cross-examined about his contact with police do not enable a conclusion to be reached about whether the binge drinking was confined to weekends.

5. [68]

   The plaintiff said he drank even more after the injury to help with his pain. No questions were put to the plaintiff to establish that post-injury alcohol consumption was equal to or less than before September 2012.

Training and induction

1. [69]

   The plaintiff was challenged on the degree of training and induction that he had received. His evidence was largely to the effect that very little training had been given to him. The plaintiff was taken to various documents asserted to show that there had been some training. Some of the documents, however, are somewhat peculiar.

2. [70]

   For example, there is an induction statement said to have been completed by Mr Blanch which is made up of two separate but identical documents. The documents have a list of topics said to have been covered by the induction. One of the documents is dated 4 January 2011 and the other is dated 5 January 2011. The former is apparently signed by the plaintiff and the latter by Mr Blanch. I discount the plaintiff’s assertion that he could not verify his signature. However, an unusual aspect of the document is that the version dated 5 January 2011 seems to have been faxed on 4 January 2011. It is possible that the faxed document had not yet been completed.

3. [71]

   As will be seen below, in the evidence of Ms Morley, the confusion about this document extended to her suggesting the document had been completed by the plaintiff, and certainly not by the second defendant, as suggested by Mr Blanch.

4. [72]

   I am not prepared to accept that the plaintiff underwent the asserted induction. Another document that is puzzling is a Site Assessment Checklist, purported to have been completed on 25 March 2011. The plaintiff is listed as the “Host Employer Representative”. He was certainly never in that position. Other similar documents relied upon by the defendants do not contain the plaintiff’s name at all, let alone as the “Host Employer Representative”.

5. [73]

   It was put to the plaintiff that the Vac truck contained instructions attached to it. The plaintiff agreed that there was some writing. The instructions certainly cover a number of operating directions. They say nothing however about management of the hoses.

Circumstances of the injury

1. [74]

   The first defendant was not in a position, because there were no eyewitnesses, to put an alternative version of the injury to the plaintiff. The first defendant did, however, ask the plaintiff whether he had been injured at all on 13 September 2012. In other words, the first defendant put the plaintiff to proof of the injury.

2. [75]

   In his first evidentiary statement the plaintiff stated:

3. [76]

   During cross-examination the plaintiff gave a different version of events saying that he had not disconnected the hose but rather, because of the pressure of keeping up with the Silcar team, he would drive the truck with the hose remaining connected, between the Telstra pits to save the time involved in the connection, disconnection, and the storage of the hose. Rather than disconnecting, he said he would coil the hose and place it on the side of the truck.

4. [77]

   The cross-examination of this aspect endeavoured to show that placing the hose on the side of the truck was not practical, in fact not possible, and that it contradicted the plaintiff’s statement.

5. [78]

   Having examined the photographs of the truck I can see no reason why the hose could not have been temporarily lodged on the side of the truck, in particular for short journeys between pits. As to the contradiction with his statement, the plaintiff’s second statement contains this passage:

6. [79]

   I think the passage just quoted is entirely consistent with the plaintiff’s oral evidence.

Falling out of a tree

1. [80]

   It is necessary to repeat the history given to the doctor at the hospital:

2. [81]

   The plaintiff said that he had not told the doctor that the incident with the tree had occurred three weeks previously. He said he told the doctor that he had fallen that day. I note there is no description of any injury that one might normally associate with falling from a tree; no scratches, no bruising, no head injury, and no other indicia suggesting such an immediate fall. This point was specifically made by Dr New during the concurrent evidence of the orthopaedic surgeons, when he stated that he would have expected other injuries on a person falling about 3 metres.

3. [82]

   Dr New also made the point that a person who had been so intoxicated so as not to feel any pain for three days should probably have been in hospital:

4. [83]

   The assertion of a fall from a tree was obviously a very silly ruse to obtain treatment. But that does not render it incapable of belief. The plaintiff’s assertion that he had been to the hospital at an earlier date and had been turned away because it was a workers compensation injury is not unbelievable. An Emergency Department is concerned with emergencies. It is not a haven for injured workers and the staff would no doubt prefer not to be involved in the documentation necessary for a work-related injury.

5. [84]

   Dr New, who has vast experience in emergency medicine, agreed that it was not unusual for an Emergency Department to be uninterested in a person, not in emergency circumstances, asking to see a doctor for a workers compensation injury. He said that patients are often asked by emergency staff to go to their general practitioners.

6. [85]

   I accept the plaintiff’s evidence that the history about the tree was untruthful. I am satisfied that there never was an accident involving a tree.

7. [86]

   I accept the plaintiff’s evidence about his visit to the hospital and being turned away. I also accept that the plaintiff attempted to see a local general practitioner. I do find it difficult to accept that the plaintiff could not have gone to Uralla to see the doctor he had previously consulted. Nevertheless, the plaintiff said he wished to carry on working and he thought his injury would resolve. He had been told by the hospital that he had a soft tissue injury to his leg. I will return below, when dealing with some of the medical evidence, to the question of whether the plaintiff was capable of working, if he had suffered the asserted injury.

8. [87]

   Another very important element in the tree question, is the absence of the tree history from further visits to the hospital and to the plaintiff’s general practitioner. One would have thought that if the plaintiff had fallen out of a tree it would have been a central feature in histories given when returning to the hospital or seeing a doctor. While it might be said that such history would contradict his claim, that was not the case in the earlier periods before he had seen a solicitor and commenced a claim.

Failure to complain

1. [88]

   As will be seen below, some of the medical experts said the plaintiff could not possibly have worked after the work injury if he had suffered the disc damage that was later evident. However, other doctors had a different view, emphasising the fluctuation of symptoms and the existence of a work ethic. The plaintiff thought he had no more than a leg injury. He was not getting paid when he did not work. He did not have any sick leave.

2. [89]

   While the first defendant endeavoured, when cross-examining the medical experts, to emphasise that the plaintiff was a labourer, and therefore engaged in heavy work, it’s lay witnesses seemed to stress that the operation of the Vac truck was straightforward, not heavy work, and well capable of being done by one person.

Continuing capacity to work

1. [90]

   Ultimately, I do not think there is much controversy about the plaintiff’s work capacity. He can do some administrative work and he can do some sedentary work, but he cannot work full-time and he certainly cannot do any job involving significant bending and lifting.

2. [91]

   Although the plaintiff worked at the funeral business for some time, the injury eventually took its toll. He said he enjoyed, and was capable of, the work for Meals on Wheels which he did for about six hours a day. I think this sort of time and level of exertion represents his capacity for work.

3. [92]

   The parties agreed that the plaintiff retained about a 50% capacity for work. They did not however agree on the net wage from which the 50% should be deducted.

Domestic activities

1. [93]

   The plaintiff agreed that he could do many tasks at home and also some shopping. He has six motor vehicles and a motorcycle. As I understood his evidence, only one of the motor vehicles is registered. The rest are essentially the subject of a hobby of rebuilding vehicles, which is a process apparently being done “slowly”.

2. [94]

   Perhaps a little inconsistently, because of the stresses no doubt put on the body, the plaintiff said that he had, on two occasions, driven a motor vehicle in a dragster style race at the Willowbank Races.

3. [95]

   The plaintiff has recently started delivering meals for Uber Eats, which he hopes to continue. He also accepted that he would care for his daughter, possibly to the extent of permitting his wife to return to work earlier than planned from maternity leave.

4. [96]

   The plaintiff can obviously do many things about the house, and he does not need much help. But his back will also restrict him in heavier tasks. His wife’s estimate of him requiring about one hour per day of assistance seems entirely appropriate and reasonable.

The plaintiff generally

1. [97]

   The plaintiff was a difficult witness to cross-examine. At times he was argumentative, at times he interrupted the cross-examiner and at times he gave answers in a mistaken anticipation of the content of a forthcoming question.

2. [98]

   The plaintiff often appeared frustrated in the witness box. He seemed to perceive that the cross-examiner’s style was to repeat a question or theme in the hope of eventually receiving the desired answer.

3. [99]

   Despite the abundance of material that existed to raise doubts about the plaintiff’s credit, I accept his evidence, not only about the tree story, but generally.

4. [100]

   Common sense and logic are powerful tools in the assessment of evidence, but they are not necessarily conclusive. For example, the plaintiff had a general practitioner who was approximately a 20 minute drive from where he lived, yet he did not attend that doctor. Common sense would suggest driving to the doctor was an obvious action for him to have taken. Common sense however does not necessarily take into account an unsophisticated young man who drinks too much alcohol (including as a sedative), has a job for which there is no sick leave and no pay when not working, who has a sore leg which he has been told is ‘a sore leg’ and a misguided belief that his leg will recover.

5. [101]

   Perhaps consistently, the hospital records indicate that the plaintiff attended the emergency department on 16 June 2009 with a sports injury. The nursing note reads “unable to see GP as in Uralla and cannot get to Uralla”.

6. [102]

   His current mental state is also important when examining his evidence, and in particular the manner in which he gave that evidence. Dr Beech, a psychiatrist, spoke to the plaintiff by audio-visual link on 12 April 2023, notably quite recently. He observed:

7. [103]

   The persistent (but I do not suggest unfair) cross-examination could only have enhanced his persecutory ideation and is consistent with his manner of answering questions and his apparent desire to find a way to justify his answers, rather than sticking to what he remembered or did not remember.

8. [104]

   A graphic example of his persecutory ideation was the plaintiff’s denial that some of his apparent signatures were not his. There was never a suggestion of any fraud, and no submission was made to suggest any forgery. To the contrary, the plaintiff’s evidence about his signatures was submitted to be, I think correctly, a manifestation of his mental state.

9. [105]

   Other factors that have motivated my acceptance of the plaintiff include the corroborating evidence of his wife (although limited to a specific time period) and the unsatisfactory evidence of the plaintiff’s host employer, Mr Blanch.

10. [106]

    Dealing specifically with the tree issue, the first defendant submitted that the plaintiff had fallen out of a tree, thus leading to the injury and the need for surgery. I have said above that I accept that the plaintiff did not fall out of a tree.

11. [107]

    As pointed out by the first defendant, the only source of the ‘tree story’ is the plaintiff himself. There were no eye-witnesses to the plaintiff falling out of a tree. Despite this, the first defendant submitted:

12. [108]

    The source of the information of skylarking, being with friends and being at a party is unknown.

13. [109]

    The first defendant, drawing on Dr New’s experience in emergency medicine, submitted:

14. [110]

    I wondered how this submission was consistent with the later submission that:

15. [111]

    The first defendant submitted that there was no need for the emergency department doctor to have given evidence because the history about the tree could only have come from the plaintiff. The first defendant has completely missed the point. The plaintiff’s case is not that he did not give a history of falling from a tree. To the contrary, he did give this history, but for the purpose of obtaining treatment.

16. [112]

    The plaintiff went on to say that the doctor (not surprisingly) was sceptical of his story and so he told the doctor about the work injury. This is recorded in the clinical notes.

17. [113]

    The first defendant made this submission:

18. [114]

    I make the following observations about the just quoted submission:

Other witnesses

1. [115]

   The plaintiff’s wife, Dr Maddie De Vries, gave oral evidence. She was an excellent witness, completely believable and precise in her comments. She is currently an obstetric registrar on her way to becoming a specialist obstetrician and gynaecologist. She met the plaintiff after his first operation, so could not comment on events before that time.

2. [116]

   Dr De Vries attested to the plaintiff’s decency:

3. [117]

   The person described above is at odds with a person who would entirely invent a method of injury, as suggested by the defendants. Dr De Vries went on to describe the help that the plaintiff was giving her at the present time, in particular with their daughter. It was suggested to her (extraordinarily) that the plaintiff’s injuries were to her advantage because she could pursue her career while he remained at home caring for the child. She appropriately responded that it would be much more preferable if he was well and able to pursue his own career.

4. [118]

   Dr De Vries accepted that the plaintiff’s condition fluctuated but she estimated that, as a “baseline”, he required about one hour of assistance per day. She rejected the notion that he could do all of the shopping himself, saying that he could certainly do light shopping but not the heavy “$300 weekly shop”.

5. [119]

   The next witness for the plaintiff was Mr Joshua Stackman. He started work, through the second defendant, with the first defendant on about 2 November 2012. He also worked with a Vac truck on Telstra pits. He was generally concerned with the removal of the pits rather than their cleaning.

6. [120]

   In his statement, Mr Stackman makes the point that the “high pressure hose is similar to a gurney but is much more powerful”. He stated that while working on the Telstra pits he would be “clearing out pits all day, doing one pit after another throughout the day.” He continued that: “The work was fairly physical in nature and was quite tiring, particularly as the day wore on”.

7. [121]

   Mr Stackman recalled an induction with Mr Blanch but not with any person from the second defendant. In relation to the instructions he received from Mr Blanch, he stated:

8. [122]

   The above description is consistent with the plaintiff’s version of the extent of instruction given by Mr Blanch.

9. [123]

   Mr Stackman stated that he was initially working with another employee who “showed me how to actually use the machine in practice, how to position myself and the Vac truck, how to set up and pack up the suction hoses, and how to approach clearing out the pits”.

10. [124]

    Mr Stackman continued:

11. [125]

    Mr Stackman initially had no memory of the plaintiff but did recognise him when shown a photograph. He thought he might have worked with him for about two weeks.

12. [126]

    Under cross-examination, Mr Stackman agreed with some statements he had apparently made to an investigator at the end of November 2022. He agreed that he had said the job was “pretty straightforward, a little bit physical but not overly so”. As in his statement, he agreed that he had said that sometimes two people operated the machine and at other times, only one. He also said that he did not recall stepping in to help another injured worker.

13. [127]

    Most importantly, the portions I have quoted above from Mr Stackman’s statement concerning the manner of work, the difficulties involved and the safety aspects were not challenged at all. I think they are consistent with the plaintiff’s descriptions of the work and Mr Stackman stating that working with another person was not only easier, but safer.

14. [128]

    I think Mr Stackman’s evidence goes a long way to establishing the negligence asserted by the plaintiff in respect of the system of work.

15. [129]

    The first witness for the first defendant was Mr Blanch. He is the managing director of the first defendant. The company originally began as a partnership but an incorporated structure was later set up. In 2010 Mr Blanch became aware that Armidale was to be a test area for the NBN. This provided an opportunity for his company to become involved.

16. [130]

    Mr Blanch thought he had about three full-time employees in 2010. He now has 25 full-time employees. If he needed more employees, he would obtain them through a labour hire company like the second defendant or through sub-contractors. Mr Curum Sabry, was an old school friend and he gave him sub-contracting work. The relationship with Mr Sabry seems to have soured, although Mr Blanch said he had no personal problem with Mr Sabry.

17. [131]

    The first defendant acquired a Ditch Witch machine in 2010 to assist in obtaining NBN work. The Ditch Witch was fitted to a truck late in 2010, the combination becoming the Vac truck.

18. [132]

    Mr Blanch stated:

19. [133]

    All of the observations in the previous paragraph are obviously correct, but they do not involve an acceptance that safe guidance and instruction were essential. The evidence is clear to the effect that the vacuum was powerful and the high-pressure system was capable of cutting into earth. Operating the system safely, no matter how effective the machine was, must have been a primary object on the owner’s part.

20. [134]

    In regard to demonstration, Mr Blanch stated:

21. [135]

    In his second statement, Mr Blanch recanted from his suggestion that the plaintiff had worked with, and been instructed by, Mr Sabry. Rather, he stated that he had worked with Mr Stuart McCloud who, stated Mr Blanch, “spent the next week or so with Guy ensuring Guy was comfortable using the equipment”. He continued:

22. [136]

    There are three difficulties with the just quoted passage:

23. [137]

    Mr Blanch could not remember precisely when the plaintiff started working but thought it was in 2011. When taken to the induction document dated 5 January 2011, he agreed that this might have been the starting date. The answers given by Mr Blanch when cross-examined on this document were somewhat confusing. The answers seemed to fluctuate between him actually giving the instructions, to signing the document in the absence of the plaintiff, on the assumption that the induction had been performed by the second defendant.

24. [138]

    Finally, in re-examination, Mr Blanch said the various induction topics had been dealt with by the first defendant and that the induction document represented a confirmation as required by the second defendant. The difficulty with this answer was that no detail was given of the content of the various topics set out in the document. As previously stated, I do not accept that the plaintiff ever had an induction containing the detail described in the document.

25. [139]

    The unsatisfactory nature of Mr Blanch’s evidence about the induction carried over into his evidence about the training of the plaintiff in the use of the Vac truck. Mr Blanch accepted that the ‘over the shoulder’ method of using the vacuum hose was unsafe and he also seemed to agree that running the hose through the operator’s legs was at least potentially unsafe.

26. [140]

    Mr Blanch said that he visited work sites from time to time. He would have counselled the plaintiff against using the hose over his shoulder and also for allowing hose to gather behind him. Somewhat reluctantly, Mr Blanch ultimately agreed that the hose being behind the operator’s legs could amount to a trip hazard.

27. [141]

    Mr Blanch also said that the vacuum hose and the high-pressure hose should not have been used with one hose in one hand and the other hose in the other hand. Again, he would have apparently counselled against this method.

28. [142]

    It is clear however that using the method described by the plaintiff would have reduced the time needed to perform the pit cleaning operation, a significant consideration in the need for the job to be done quickly, with prompt movement from one pit to the next.

29. [143]

    Mr Blanch seemed to waver about the degree of responsibility his company accepted for the safety of employees working with Silcar. I think he did recognise that the first defendant retained some responsibility, but he also seemed eager to pass immediate responsibility to Silcar.

30. [144]

    Obviously, any rogue directions given to the plaintiff by Silcar could lead to a responsibility on the part of Silcar. But this was not the case here. The plaintiff was sent out to operate the Vac truck as part of the contract between the first defendant and Silcar. This activity formed part of the first defendant’s obligations under its contract with Silcar. The plaintiff was doing the work on behalf of the first defendant, in pursuance of the first defendant’s obligations. It cannot be said that the first defendant’s duty to the plaintiff was in any way abrogated because the plaintiff was working under the direction of Silcar.

31. [145]

    My overall impression of Mr Blanch was that he was not a reliable witness. He entered the witness box with a degree of self-confidence, which waned as his cross-examination continued and his assertions concerning inductions, instruction and safety were dented.

32. [146]

    The next witness was Ms Lisa Morley. She worked for the second defendant and was a recruitment officer in 2011. She stated that her “duties at that time were to induct people to get them into work on different placements, to carry out site inspections and to go out and see employers who might be interested in adding placement of staff”.

33. [147]

    Ms Morley stated that the plaintiff first consulted the second defendant in December 2010. He was employed on a casual basis “depending on each assignment with a host employer”. The effect of this arrangement was that he received no sick pay and was only paid for the periods he actually worked. This is important because it explains, to some degree, the plaintiff continuing to work notwithstanding his injury.

34. [148]

    Ms Morley said that site inspections took place about once a month, principally to ensure that the employees were “happy” and to see whether or not they had any complaints. Ms Morley said that she personally did not have any health and safety qualifications, nor did she know much about machinery. Her site inspections were necessarily limited by these factors.

35. [149]

    Ms Morley was keen to stress that the host employer was relied upon for the daily safety of the workers. In respect of the induction statements (pages 326 and 327) Ms Morley said that the documents were not filled in by any person at Speedie, they were completed by the employee and the host employer. This evidence contradicts that of Mr Blanch who seemed to suggest that they had been completed by the second defendant. The overall impression I had of the induction statement, was that it was a pro forma document which required ticks and little else. There does not seem to have been any system of ensuring that the worker actually heard the information set out.

36. [150]

    I had the same impression about the site assessment checklists (page 356). The only checklist in which the plaintiff is mentioned is that dated 25 March 2011. It lists the plaintiff as the Host Employer Representative, which of course he was not. Further, some of the entries simply do not make sense. For example, the awarding of a full score for walkways and stairways is inconsistent with the outdoor work being conducted.

37. [151]

    The other checklists have similar incomprehensible entries. For instance, in the case of the Toolbox Meeting Record (page 355) Ms Morley was adamant that she had been present at the meeting but yet she is not listed as one of the staff in attendance. Rather, on this document Mr Blanch is listed as the supervisor conducting the meeting, however it is signed by Ms Morley as the supervisor and her signature is dated a day after the meeting. I do not necessarily disbelieve Ms Morley. Suffice to say, my overall impression is that the documentary records, like the site inspections themselves, are of little assistance.

38. [152]

    In respect of the plaintiff’s injury Ms Morley stated that on 17 September 2012 another recruitment officer had contacted the plaintiff because he had not lodged his timesheet for the previous week. The plaintiff told the officer that he had been injured. He was asked to come to the Speedie premises and complete a report. He was also asked for a doctor’s certificate.

39. [153]

    A number of phone calls were needed before the plaintiff actually came in. Ms Morley stated:

40. [154]

    The instruction to obtain a WorkCover certificate is consistent with the plaintiff returning to the hospital and stating that he had suffered a work-related injury.

Evidentiary statements from persons who were not cross-examined.

1. [155]

   Mr Barry Heffernan worked for the first defendant as a plant operator in 2011. He worked for half a day with the plaintiff. He stated:

2. [156]

   The second RBT precipitated the termination of the plaintiff’s employment. It obviously occurred after the plaintiff said he was injured. It is unknown when the first RBT was conducted, and therefore whether or not the alcohol consumption was consistent with the plaintiff’s evidence about his drinking.

3. [157]

   Mr Barry Phillips worked for Silcar as an “Installer”. He stated that he worked with the plaintiff from time to time, but never as his supervisor. He never used the same equipment as the plaintiff but used similar equipment on one of Silcar’s vehicles. He described the manner in which he would operate the equipment. He stated that he would first position the suction hose alongside the area in which he was working, he would then make a hole in the ground with the high-pressure gun. After this was done, he would put the gun to the side and put the suction hose into the newly created cavity. He would then turn on the suction hose which was placed in the hole and not being held. If necessary, he would use the high-pressure gun at the same time.

4. [158]

   Mr Phillips commented on the manner in which the plaintiff operated. He stated:

5. [159]

   Mr Phillips stated that operating the truck was generally a one-man operation. He did not recall telling the plaintiff that “there should be two of you working on this Vac truck”.

6. [160]

   Mr Peter Eveleigh stated that he was employed by Speedie in about September 2012 and was directed to work for the first defendant. He never worked with the plaintiff, but he did use the Vac truck from time to time. His method of operation was as follows:

7. [161]

   Mr Eveleigh stated that in doing NBN work he had no problem operating the Ditch Witch single-handedly.

8. [162]

   Mr Greg Inglis owned a plumbing company which had premises in the same place as the first defendant. He also did a good deal of NBN rollout work. He also used a Ditch Witch. He did not think that operating it was “more physically demanding or difficult than any other manual task…”

9. [163]

   When he operated the machine, he said that he would simply “handle one piece of equipment at a time.” He stated that:

10. [164]

    The methods of operation described by Mr Phillips, Mr Eveleigh and Mr Inglis are consistent with each other and different to the method adopted by the plaintiff. Clearly the plaintiff’s method was unorthodox but never corrected by Mr Blanch.

Medical evidence

1. [165]

   I heard oral evidence from the neurosurgeons, Dr Sheehy and Dr Casikar, concurrently, and also concurrently, from Dr New, Dr Rowe and Dr Bentivoglio, all orthopaedic surgeons.

2. [166]

   There was a good deal of agreement amongst the above specialists. But there was also some disagreement. I would summarise the various views as follows:

3. [167]

   Dr New seems to have shared a similar perception of the cross-examiner’s approach with the plaintiff.

4. [168]

   I think it particularly important that the three orthopaedic surgeons, before obtaining a history of the tree incident all agreed that “the plaintiff’s current condition is consistent with the alleged injury”.

5. [169]

   The expert expressing the most doubt about the plaintiff was Dr Casikar. He found it difficult to countenance the plaintiff carrying on work after the injury if it was as serious as is suggested. But he did not state that the work injury could not have caused the disc prolapse.

6. [170]

   Interestingly, Dr Casikar, no doubt unintentionally, gave some support for the absence of the tree incident. The conclave report records this opinion from him:

7. [171]

   Finally, on this topic, I note that despite some comment and submissions to the contrary I have not factored in as a source of the plaintiff’s current condition the back injury he suffered in February 2012. This is because, despite having three days off work, the plaintiff stated that the pain had followed being “hunched over” at work and resolved during the three days off work.

Liability

1. [172]

   At a very localised level, the negligence of the defendants might be viewed as the creation of a tripping hazard. While the plaintiff’s accident did involve him tripping backwards over the vacuum hose, I think the circumstances are better viewed through the existence of an unsafe system of work which included a tripping hazard as an integral part of its operation.

2. [173]

   The defendants emphasised the absence of any expert evidence on the part of the plaintiff, in particular noting that expert reports had been obtained and, in fact, photographs from the reports had been tendered. I do not think the absence of an expert report is of much consequence in this case. This is a factual case turning on what is found to have occurred and whether or not the facts as found constitute a safe system of work.

3. [174]

   The defendants conceded there was a tripping hazard. Their point was that the existence of the hazard did not indicate any negligence on their part.

4. [175]

   The defendants also emphasised the essentially mundane nature of the work, suggesting that it was no different to a person working with a garden hose in the knowledge that lengths of the hose might be behind the person and be a tripping hazard.

5. [176]

   The defendants submitted that the hose, because of its semi-rigid structure, would not lie on the ground close beyond the plaintiff’s feet, if it then wound over his shoulder.

6. [177]

   The defendants further submitted that the plaintiff’s evidence suggested the method of work he had adopted when he fell over had only commenced on the day of the incident. Accordingly, they posed the question; how the defendants could have had an impact on the system of work, or when could they have given the plaintiff instructions about the system he was adopting.

7. [178]

   I will deal with each of the above three points in turn. I accept that there will be situations where the nature of the work is such that there is no need to take precautions. As stated in Drew v State of New South Wales [2015] NSWCA 159, at [37] and [38]:

8. [179]

   I was also taken to Transpacific Industrial Solutions Pty Ltd v Phelps [2013] NSWCA 31, at [40] and [41]:

9. [180]

   The vital point of distinction here is the pressure under which the plaintiff was working. He stressed the necessity to keep up with the Silcar workers who were following him in order to complete work on the Telstra pits. He needed to be ahead of them, and he had already done about 20 pits on the day. Importantly, while he may have worked previously on hundreds of pits, the specific task he was performing in September 2012 was relatively new and needed to be done quickly. At [55] of his first evidentiary statement, the plaintiff stated:

10. [181]

    If the plaintiff had been working at a leisurely pace, knowing that he had placed a hose behind him, I think the defendants’ point would have been valid. However, requiring the plaintiff to rush his work removes the expectation that he would be always cognisant of the dangers around him. The plaintiff was not only operating two hoses, sometimes simultaneously, he was also doing so at a pace which could reasonably have been expected to divert his attention away from the position of the hose behind him.

11. [182]

    Secondly, some of the photographs would suggest that the hose could not have been lying on the ground some 10 to 15 centimetres behind the plaintiff, in particular if the hose was draped over the plaintiff’s shoulder. Examples are Figures 4, 10 and 11 in Exhibit 1D8. However Figure 6 suggests a different conclusion, especially when taken with the evidence that the plaintiff was using a long hose about 1 metre from the truck, meaning that the hose would have been ’bunched’ up behind him.

12. [183]

    Figure 1 in the same exhibit, accepting the difficulty of distance estimates in photographs, suggests the hose being quite close to the right leg of the operator. The hose in Figure 2 shows a degree of flexibility that could well put the hose draped over a shoulder very close behind the leg of the operator.

13. [184]

    Thirdly, although the transcript is at times confusing, I am satisfied that the plaintiff had been engaged in the work he was doing on the day of the incident for longer than that day only. I refer to these passages from the transcript of the plaintiff’s cross-examination:

14. [185]

    I note the above passages from the transcript also emphasise the time pressure under which the plaintiff was working in order to keep up with the Silcar crew.

15. [186]

    I should also refer to the questions I asked at page 135.21 of the transcript. Although they give the impression of the system starting on 13 September, I am satisfied that the change on the day was restricted to the coupling of the hose, as opposed to working with a long length of hose, not dismantled after each pit. This is clarified in the following question and answer:

The Civil Liability Act

1. [187]

   Viewed through s 5B of the CLA, there was a risk of harm through falling backwards after tripping on a hazard. The risk of a hose behind the worker was obviously foreseeable in circumstances in which the worker was holding a long hose, perhaps as close as 1m from the truck and the connection. The length of hose could not have been in front of the worker. It had to be behind him in order for the task to be performed.

2. [188]

   The risk was not insignificant. A person falling backwards onto the ground is at serious risk of suffering personal injury. In the circumstances, which include the supervision of a workplace and system, a reasonable person would have taken precautions to ensure that the system of work was safe.

3. [189]

   In determining whether precautions should have been taken I think it obvious that a person falling backwards onto the ground could well suffer some injury. The plaintiff was working near a road, sometimes on a hard pavement and always near a pit. Falling onto or into any of the surfaces could be reasonably foreseen as possibly leading to a serious injury.

4. [190]

   In relation to precautions, primarily there should have been some oversight of the plaintiff’s system. Mr Blanch should have been overseeing the plaintiff’s activities, in particular when the need for rapid progress was imposed by the Silcar system. Rather, as stated by senior counsel for the plaintiff, admittedly with a degree of embellishment:

5. [191]

   Another available precaution was the use of an extra worker. It is one thing to say that the machine was easily operated by one person, but that again depends on the circumstances of the work. When under the considerable time pressure imposed by the Silcar crew, the presence of another worker to ensure the safe passage of the hose, well away from the co-worker, was a reasonable remedy to mitigate the risk. The expense would have been passed on by Mr Blanch to Silcar as part of the ‘wet’ hire of the vehicle to Silcar with two instead of one operator.

6. [192]

   I refer again to the passages I quoted above from Mr Stackman’s evidentiary statement, concerning the practicality and safety of having two persons operating the machinery.

7. [193]

   Persons tripping backwards over a hose may suffer little injury if they fall on an otherwise uncluttered lawn. But they may also suffer significant injury from even a simple fall. Tripping backwards raises a probability that some harm will occur and there is a reasonable prospect that the harm will be serious. As I have already said, precautions were available and there was little burden in taking them.

8. [194]

   As noted above, both Mr Blanch and Ms Morley, said they would have instructed the plaintiff not to continue operating in an unsafe manner. But Mr Blanch did not inspect the plaintiff’s work method in the month or so since the time sensitive work had begun, nor had Ms Morley, although she probably lacked the experience and knowledge to have recognised an unsafe system. Sending out a person without the experience and qualifications to recognise the absence of a safe system of work is in itself a failure to take precautions.

9. [195]

   I agree with this passage from the plaintiff’s closing submissions, at [83]:

10. [196]

    Finally, the plaintiff suggested that the use of a boom was a reasonable precaution. If the boom is of the type seen in Figure 1 (at page 1108) in Exhibit 1D8, then I do not think it is a practical solution to the type of work being performed by the plaintiff who often needed to work at a pit very close to the rear of the truck.

11. [197]

    The result of all of the above is that I am satisfied that the defendants were negligent in accordance with the CLA.

Contributory negligence

1. [198]

   The first defendant’s submission on contributory negligence was as follows:

2. [199]

   I reject this submission. A good deal of its content was not put to the plaintiff, although he was asked about an absence of complaint. The onus is on the defendants to prove the contributory negligence. The system of work was governed by the defendants. It was not for the plaintiff to raise issues of safety. He was doing his best to maximise the earning potential of the first defendant by working as best he could, without instruction or supervision, to meet the needs of the first defendant and the Silcar crew.

3. [200]

   The plaintiff, having had no instruction or correction from either defendant, was required to work in a system that essentially necessitated short cuts.

4. [201]

   In McLean v Tedman [1984] HCA 60; (1984) 155 CLR 306, at 315, the High Court said:

5. [202]

   In fairness to the defendants, I should add that the allegation of contributory negligence was pressed with little enthusiasm. I make no finding of contributory negligence.

Causation

1. [203]

   Section 5D of the CLA sets out the general principles for causation. Essentially the section poses a ‘but for’ test. The onus, by s 5E, is always on the plaintiff. On my findings, the plaintiff fell because of the negligent system of work. The injury he suffered was capable on the whole of the medical evidence (perhaps excluding Dr Casikar) to have been able to lead to the severe back condition later identified. Because I have excluded the occurrence of the fall from a tree incident, there is no intervening event to interrupt the chain of causation from 13 September 2012 to the present.

2. [204]

   Accordingly, I am satisfied that the plaintiff’s injury was caused by the negligence of the defendants. This means the plaintiff is entitled to a verdict against both defendants.

Apportionment between the defendants

1. [205]

   Apportionment of responsibility between the defendants, if any, is required by s 151Z(2) of the WCA. The first defendant thought a 50 – 50 split was appropriate. The second defendant countered with a 0 – 100 split, obviously in its favour. There are many cases in which apportionment has been assessed, but there is no formula or tariff.

2. [206]

   As to the assertion by the second defendant that it bore no responsibility at all, Hislop J, in Hodge v CSR Limited [2010] NSWSC 27, from [30] gave this summary:

3. [207]

   There are cases, such as Jurox Pty Ltd v Fullick [2016] NSWCA 180, where there has been a finding of no responsibility on the part of the labour hire company. For the reasons that appear below, but essentially the specific involvement of the second defendant in the supposed induction of the plaintiff and its site visits, I think there is a degree of responsibility on the part of the second defendant.

4. [208]

   The contract between the defendants has these clauses:

5. [209]

   Ms Morley said:

6. [210]

   In relation to Silcar and his own company’s responsibilities, Mr Blanch said:

7. [211]

   Then at T 251.38:

8. [212]

   Mr Blanch then made a confused attempt to divert responsibility away from his company, which I ended by asking the first defendant’s senior counsel:

9. [213]

   Putting the matter beyond doubt, the first defendant’s contract with Silcar states:

10. [214]

    In my view, the appropriate split is 80% liability on the part of the first defendant and 20% on the part of the second defendant. The first defendant, whatever its arrangements with Silcar, supervised, directed and organised the work being done by the plaintiff. It must bear the majority of liability.

11. [215]

    The second defendant had taken on the task of sending out workers to labouring jobs, which by definition could be heavy work. This was recognised by the second defendant through its induction forms and occasional visits. The second defendant specifically involved itself in the welfare of its employees. In the induction statement the second defendant purported to provide advice on health and safety, “Details of the Job - what to do, where to do it, how to do it” and “Safe work method is to be followed and use of equipment”.

12. [216]

    By visiting the worksites the second defendant was exhibiting a degree of control over its employees. Ms Morley said she would have taken action if she saw any unsafe practices. That the second defendant sent out unqualified persons is as much a measure of its failings.

Quantum

1. [217]

   As already noted, the plaintiff’s entitlement to damages as against the first defendant is different to his entitlement against the second defendant. The latter is restricted to economic loss.

2. [218]

   The parties prepared a useful comparative schedule of damages. Fox v Wood damages were agreed at $40,929. The quantum of past out of pocket expenses I understood was agreed, but the plaintiff’s entitlement to the sum (of $144,583) was disputed, reliance being placed on the New South Wales Court of Appeal decision in Southwest Helicopters Pty Ltd v Stephenson [2017] NSWCA 312; (2017) 98 NSWLR 1 (‘Southwest Helicopters’).

3. [219]

   All of the other heads of damages were disputed. Starting with non-economic loss the plaintiff submitted that a finding of 45% of a most extreme case was appropriate. The first defendant countered with 30%. I think these assessments probably represent the high and low points of the applicable range.

4. [220]

   The plaintiff has now had almost 11 years of fluctuating and sometimes extreme pain. He has had to undergo two lots of major spinal surgery. He has gained benefit from the surgery but not complete recovery. He will remain with a degree of pain for the rest of his life. He will be restricted in his movements for the rest of his life. He has a medium life expectancy of about a further 43 years.

5. [221]

   In addition to physical pain and disability, the plaintiff is also depressed and requires treatment. In my view, 35% of a most extreme case reflects this plaintiff’s percentage of a most extreme case. Here, 35% equates to $246,500.

6. [222]

   The plaintiff’s claim for past economic loss, including lost superannuation benefits, is $553,434. The defendants’ figure is $348,370.

7. [223]

   The plaintiff said he had earned $87,437.45 since the accident. The defendant said the figure was $96,010. It is difficult to understand why there is a difference. I would have thought the figures were capable of precise calculation. I have not been provided with all of the source documents so I think the fairest approach is to essentially split the difference between the parties, which I will do and arrive at a figure of $91,723.70.

8. [224]

   The parties also could not agree on the plaintiff’s wage, as at 13 September 2012. The plaintiff said he was earning $739.75 net, to be compared to $757 net, calculated by the defendants. The defendants calculated the continuing loss based on award wages plus 30%.

9. [225]

   The plaintiff had not dissimilar figures until a major increase from 1 January 2015 when the asserted likely earnings rose from $777 net to $1192 net. The increase was attributed to the plaintiff moving, firstly to Newcastle and then later to Ipswich in Queensland. The assertion was that these cities had “larger economies” so that the plaintiff would have had a greater chance of attracting higher earnings.

10. [226]

    I think the fallacy in the plaintiff’s argument is demonstrated in his net income at the Len Russell Funeral Homes, between 1 July 2018 and 30 June 2019, being $47,105.86, equating to $905.88 per week. It is to be recalled that the plaintiff was working full-time in this employment. The figure of $905.88 is much closer to the defendants’ base figure of $878.80 than the plaintiff’s figure of a continuing loss at $1242, going up to $1296 by the end of the financial year.

11. [227]

    In addition, the fact that Newcastle and Ipswich are bigger markets does not necessarily mean that there will be higher wages. It might also be thought that unemployment rates could be larger at the bigger centres.

12. [228]

    The difference between $905.88 and $878.80 is $27.08. I think the appropriate way for me to proceed is to adopt the defendants’ calculations for past economic loss but to add, say $20 per week to reflect an average difference until the present time.

13. [229]

    The defendants’ estimate, before a reduction for actual earnings, is $444,380. There have been 554 weeks since the plaintiff stopped working for the first defendant on 18 November 2012. The calculation is therefore 444,380 + (554 x 20) - 91,723.70 = $363,736.30.

14. [230]

    Lost superannuation benefits at the agreed rate of 11% are $40,011.

15. [231]

    The parties agreed that the plaintiff currently retained 50% of his earning capacity and this would continue to age 60. The plaintiff then claimed a total incapacity to age 67, whereas the defendants maintained the 50% to age 67. The first issue is the amount from which the 50% is to be deducted. Consistent with my findings on past economic loss, this figure should be the defendants’ estimate of $988 plus $20, namely $1008.

16. [232]

    I agree with the defendants that the same amount should be calculated through to age 67. By this time the plaintiff would have been unlikely to still be doing heavy labouring work. His transition to easier work would have occurred probably before the age of 60. I do not see why there should be a greater loss of capacity between 60 and 67.

17. [233]

    The normal rate of vicissitudes is 15%. The second defendant suggested a higher figure, about 20% or 25%, apparently because the plaintiff and his wife might have another child and there might be some contribution to the plaintiff’s condition from an earlier back condition. These are the type of factors which lead to the usual assessment of a 15% reduction. I do not see anything in this case that would justify any increase.

18. [234]

    The plaintiff is now 40 years of age, leaving him with 27 years of future economic loss. On the 5% tables the calculation is 504 x 783 - 15% = $335,437.20.

19. [235]

    Lost future superannuation benefits at 14.53% are $48,739.

20. [236]

    Past domestic care is claimed in the sum of $140,945. The first defendant said there should be no allowance. I assume this assertion is based on the plaintiff not exceeding the threshold imposed by s 15(3) of the CLA. This threshold requires that gratuitous attendant care services were provided (or are to be provided) for at least six hours per week and for a period of at least six consecutive months.

21. [237]

    Section 15 of the CLA also requires there to have been a reasonable need for the services. I do not think there is any doubt about this requirement. It is the evidence of Mr Dwyer and Ms Grinter. It is also the evidence of the medical specialists. For instance, in his report of 9 February 2022 Dr Rowe wrote:

22. [238]

    On my findings about the absence of a fall from a tree, the need for the domestic assistance has arisen solely because of the subject work injury and the services would not have been provided but for the injury.

23. [239]

    The evidence of the plaintiff’s wife, Dr De Vries, which I accept, includes this statement, from [14]:

24. [240]

    Dr De Vries went on to describe even larger periods of assistance from time to time. I have quoted the above passages to indicate that the s 15(3) threshold is easily exceeded.

25. [241]

    Dr De Vries estimated that the plaintiff’s current needs were about one hour per day. There is also expert evidence and a conclave report of a meeting between Mr Glenn Dwyer and Ms Carolyn Grinter. The report states:

26. [242]

    The plaintiff gave no evidence of receiving any domestic assistance in the period after his injury. He may have needed assistance, as the experts agreed, but he can only be compensated for assistance that he did actually receive. As stated by Allsop P in Coles Supermarkets Australia Pty Limited v Haleluka [2012] NSWCA 343, at [52], “the number of hours is a factual question, on what has occurred or will occur.”

27. [243]

    The plaintiff stated:

28. [244]

    The first operation was on 8 October 2013. Although the plaintiff referred to help from his mother before this time, he is very vague as to the amount of time she actually spent doing domestic tasks. The more reliable evidence is from the plaintiff’s wife. I think November 2013 should be the starting point for domestic assistance. Since then, as noted by the experts, there have been fluctuations in need and obviously the amount of time for which assistance was provided. I think that I am entitled to apply a degree of averaging which I will do to the extent of a finding of one hour per day from November 2013.

29. [245]

    The plaintiff has suggested a rate of $35 per hour. If I average the statutory rates for the provision of attendant care services, a more appropriate figure is $32.48 per hour. There have been 505 weeks since 1 November 2013. The calculation is 505 x 32.48 x 7 = $114,816.80.

30. [246]

    For the future, the plaintiff claimed $301,172 for paid domestic assistance, based on one hour per day at $45 per hour. Again, for no obvious reason, the first defendant made no allowance. The first defendant did however submit that the evidence suggested that any future attendant care was likely to be provided gratuitously.

31. [247]

    The plaintiff referred to the evidentiary statement of Dr De Vries in support of the claim for paid care, from [37]:

32. [248]

    My interpretation of the above passages is that paid help will be utilised until the child is a little older, but then the plaintiff’s desire to do tasks himself will see paid assistance giving way to gratuitous assistance. I think the fairest approach is to allow paid assistance for five years and thereafter domestic assistance.

33. [249]

    On the 5% tables, seven hours a week for five years at $45 per hour results in a figure of $72,922.50 (231.5 x 45 x 7). For the remaining 38 years of his life expectancy, I will allow seven hours per week at $34.77 per hour, deferred for five years. The result is $172,117.62. (34.77 x 902 x 7 x .784). The total is $245,040.12.

34. [250]

    All of the past out-of-pocket expenses have been paid by the workers compensation insurer. They total $144,583. On my findings about the injury there is no real dispute about the figure. However, as I have said, the first defendant relies upon Southwest Helicopters to negate the plaintiff’s entitlement.

35. [251]

    The parties endorsed a suggestion that I should not make final orders regarding the out-of-pocket expenses until the balance of my decision had been delivered. This would enable more targeted submissions to be made. I will act accordingly.

36. [252]

    For the future, the plaintiff’s figure is $122,249 essentially based on future medical estimates provided by various experts. The first defendant suggested $50,000 but hasn’t said why. When I enquired, I was told the figure is essentially a buffer to allow for such expenses as may be incurred.

37. [253]

    The difficulty facing the plaintiff is that his condition is likely to deteriorate and there is a reasonable possibility of future surgery. Dr Bentivoglio said there was a 50% chance of further surgery, Dr Rowe said 10% to 20% and Dr New said the likelihood “is impossible to estimate”. The conclave report for these three orthopaedic surgeons stated:

38. [254]

    The report also states: “all experts agree that the plaintiff will continue to need ongoing conservative management”. Conservative management was defined as “including consultations with his general practitioner, specialist referrals when needed, intermittent referral for physiotherapy and ongoing use of anti-inflammatory and pain medication”.

39. [255]

    I have not taken into account the neurosurgeons’ opinions on deterioration because they seem to have erroneously assumed that the plaintiff has already had a spinal fusion.

40. [256]

    Because of the likely deterioration, and factoring in a possibility of further surgery, I think the plaintiff’s figures on future medical expenses should be accepted. I have not however included the $19,650 derived from Mr Dwyer’s reports because I think the balance of the expenses take into account the different possibilities that might arise. Future medical expenses are therefore $102,599.

41. [257]

    A summary of the damages I have allowed is as follows:

42. [258]

    After delivering these reasons I will ask the parties to bring in draft final orders, or to make further submissions in respect of the out-of-pocket expenses in relation to the cross-claims. The draft orders should also include orders as to costs.