Gong v AWI Steel Pty Limited

1. [1]

   In April 2021 Mr Gong, a boilermaker/welder originally trained in South Korea, was injured after working for only a few days at the factory of AWI Steel Pty Ltd. The accident occurred when he attempted to manually lift and flip a very heavy metal plate on which he had grinding work to perform. The plate slipped and fell, striking Mr Gong and causing various injuries, the most serious to his foot. He was taken to hospital where he was treated and discharged later that day. But despite how his physical injuries healed, he has never again returned to work and now walks with a pronounced limp.

2. [2]

   Mr Gong seeks damages from AWI for the ongoing results of the physical and psychological injuries which he claims he suffered because of the accident, as well as for other alleged damages. He relies on expert evidence to establish that the results of his injuries include that it is unlikely that he will ever work again.

3. [3]

   AWI resists Mr Gong’s claims and has brought cross-claims against both him and Gong Engineering Pty Ltd, the company which employed him at the time of the accident, of which he was the sole employee and his wife the director. AWI also pursues a claim against Gong Engineering under s 151Z of the Workers Compensation Act 1987 (NSW). Ebenezer Engineering, to whom Gong Engineering provided Mr Gong’s services, no longer operates and no orders are sought against it.

4. [4]

   It is not disputed that Mr Gong was working at AWI’s factory because AWI had engaged Ebenezer to provide it with labour and also to supervise the native Korean speakers it provided, including Mr Gong. That supervisory role was undertaken at its factory by Mr Gim, who is bilingual. His services having been supplied to Ebenezer by another company, which is not a party to the proceedings.

5. [5]

   The evidence also establishes that the various contractual relationships were not well understood by those working at the factory. These arrangements were never documented, with the result that workers provided by Ebenezer had raised concerns with AWI managers about Mr Gim’s authority to direct and to dismiss them. Whether the workers had ever complained about Mr Gim’s behaviour towards them to AWI managers, was disputed.

6. [6]

   But there is no dispute that it was Mr Gim who recruited labour for AWI’s factory by word of mouth, as well as through a Korean online message board. Or that many of those he recruited, including Mr Gong, had a limited command of English. AWI relied on Mr Gim, whose command of English enabled him to communicate with its managers in English and to communicate with the Korean-speaking workers Ebenezer supplied.

7. [7]

   Although for a period, AWI itself employed one Korean speaker, upon whom Ms Ryan, the Safety, Quality and Environment Manager, relied to help communicate with Korean workers. Otherwise, AWI relied on Mr Gim, including for the induction of the workers Ebenezer supplied.

8. [8]

   AWI’s Korean speaking employee was not called to give evidence. This and its failure to call evidence from its managerial staff, other than Ms Ryan, it must be accepted, results in Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 inferences having to be drawn against AWI. They having relevant evidence to give, yet there being no explanation for why they were not called.

9. [9]

   AWI also called evidence from Mr Gim and Mr Bak, another Korean speaker formerly provided by Ebenezer who it now directly employs. Evidence which they and Ms Ryan gave in cross-examination finally supported aspects of Mr Gong’s case. As did evidence he called from other Korean speaking workers Ebenezer had supplied AWI.

10. [10]

    The evidence establishes that Mr Gim and AWI managers, other than Ms Ryan, were all involved in the supervision of the work undertaken by Ebenezer contractors at its factory. While Ms Ryan also provided her services to another company operating out of the factory. One of AWI’s managers, Mr La Rosa, to whom Mr Gim reported, worked on the factory floor where he was directly involved in the work undertaken by both AWI and Ebenezer workers, including by supervising and directing Mr Gim’s work, controlling use of the crane and also being involved in the supervision of other Ebenezer workers.

11. [11]

    On Ms Ryan’s evidence, AWI had devised the process by which Mr Gim inducted Ebenezer workers, using a document which she had created to induct AWI staff, of which there was a Korean translation. But the evidence of Mr Gong and other workers was that they were not inducted, only shown around the factory and then given work to do.

12. [12]

    The evidence finally established that AWI and Ebenezer workers received different inductions, because of the approach adopted by Mr Gim, who did not well understand the induction document, or concepts which it contained.

13. [13]

    Ms Ryan understood that it had been translated into Korean by Mr Gim, but there is no evidence that the accuracy of the translation was checked. What it actually said was not established. Ms Ryan’s evidence included that AWI did not oversee what Mr Gim actually did when undertaking inductions, on which light was shed by his cross-examination.

14. [14]

    Mr Gim’s evidence also established that he did not understand all that safety required; what parts of the induction document meant; that he had only translated parts of the document he considered important; and he had only told workers he inducted about what he considered to be important.

15. [15]

    The result is, I am satisfied, that on induction they were not given instructions about AWI’s safe work method statement, in which its manual handling policy was explained. That document was also posted on the wall of the factory, but unlike other signs, was not translated into Korean.

16. [16]

    In cross-examination Mr Gim also revealed that while he had translated the induction document with the assistance of AI, because he could not entirely understand the document, he still did not understand some of what had been translated. This reflected that he had no training or experience in safe work procedures. The evidence AWI relied on was thus incapable of establishing its case that Ebenezer workers, including Mr Gong, were inducted in safe work at its factory, as it intended.

17. [17]

    This helps explain how the accident occurred. As did the evidence about how the factory was operated.

18. [18]

    Mr Gong and other witnesses described having received minimal induction and no instruction about matters such as safety, manual handling, or the operation of AWI’s sole crane, which Mr Gim directed them to use. Mr Gong, like others, was not licensed to operate the crane, although there was an issue about whether a license was required.

19. [19]

    Given the views which I have reached about the credibility and reliability of the various witnesses, I am satisfied that Mr Gong’s evidence must be preferred over that of Mr Gim, on relevant matters. Including in relation to the critical issue of whether Mr Gim directed Mr Gong to flip the plate manually, as was Mr Gong’s evidence, which Mr Gim disputed.

20. [20]

    There is no issue that Mr Gim had used the crane to move the plate and given it to Mr Gong to grind. Mr Gong has given different accounts of its likely weight, as did others, including Mr Gim. It emerged in his cross-examination that its weight was known to AWI but not disclosed, Mr Gim’s evidence being that it had been weighed when moved by the crane and that AWI had kept the record.

21. [21]

    That also results in a Jones v Dunkel inference having to be drawn against AWI.

22. [22]

    It was also not disputed that while the crane was later not available when it was needed to flip the plate, in order for Mr Gong to complete his work. Why Mr Gong attempted to do that manually was in issue. But there was no issue that this was unsafe, given its weight.

23. [23]

    The critical factual dispute was thus whether Mr Gim had instructed Mr Gong to manually flip the plate so that he could complete the grinding work, rather than waiting for the crane. Mr Gong’s case was that he complied with that instruction as the result of both the unsafe working environment at the factory and pressure and threats made by Mr Gim, despite then believing that the plate was too heavy to flip safely.

24. [24]

    AWI disputed this, as did Mr Gim, who denied giving such an instruction and that the crane was not then available to be used to flip the plate. There having been no problem with waiting until it was available, as workers often had to do at the factory.

25. [25]

    I have concluded that the evidence well established that it was unsafe for Mr Gong to have attempted alone to flip the plate as he did. But AWI denied that:

26. [26]

    There is no issue that Ebenezer later paid invoices Gong Engineering supplied for the work Mr Gong had performed at the factory before he was injured. But Ebenezer considered that it had no responsibility for Mr Gong’s injuries and that any claim was a matter for Mr Gong to pursue with Gong Engineering’s insurer. AWI took a similar view.

27. [27]

    There was a question about whether Mr Gim, who had ceased working at the factory after Mr Gong’s accident, had resumed his former role, about which he and Ms Ryan gave conflicting evidence. The evidence establishes that when he gave his evidence, he was again working at the factory, his services having been supplied by yet another company, which was not a party to the proceedings. Further, that even shortly before the hearing, Mr Gim was still obtaining Korean workers to work at AWI’s factory.

28. [28]

    Mr Gim was very reluctant to give evidence about these arrangements, even though no claims are pursued against him or any company which supplied his services. The result of his approach is that his evidence has to be approached with considerable caution.

29. [29]

    Numerous aspects of the evidence given by other witnesses was also challenged. No adverse inference can be drawn from Mr Gong and other Korean speaking workers, including Mr Gim, giving their evidence with the assistance of an interpreter. Despite there being no question that Mr Gim has a considerable command of English.

30. [30]

    But it did make conclusions about credibility and reliability more challenging to arrive at, witnesses having difficulty following some questions and there seeming to be a number of problems with the interpretation, at various times.

Conclusion

1. [31]

   For reasons which follow, despite the evidentiary difficulties which had to be resolved, in short summary I have concluded that:

   1. (1)

      The unsafe way in which AWI conducted its operations at its factory was as Mr Gong and other witnesses, including finally Ms Ryan and Mr Gim, described;

   2. (2)

      The photographs AWI relied on not did not establish the state of the factory at the time of the accident. Other photographs which it possessed, which did show its then state, were not tendered. That also supporting the acceptance of the evidence of Mr Gong and witnesses he called;

   3. (3)

      It was obvious that the heavy metal plate Mr Gong was given to grind could not safely be flipped manually, given its considerable weight, despite both Mr Gong and Mr Gim having described that weight quite differently, at various times;

   4. (4)

      The plate was so heavy that it could not safely be flipped manually by Mr Gong alone;

   5. (5)

      AWI did not have a safe system of work which ensured that Korean speaking workers Ebenezer provided were inducted, trained and supervised in safe manual handling, when performing the heavy work they were given to undertake;

   6. (6)

      AWI’s manual handling policy, not being in practical operation, so far as the Korean speaking Ebenezer workers were concerned;

   7. (7)

      Under its system, it was AWI who supervised Ebenezer workers, as well as its own employees, with Gong Engineering playing no role in the work performed at the factory;

   8. (8)

      AWI’s supervision did not prevent Mr Gong from attempting to manually flip the plate, or Mr Gim directing him to do so;

   9. (9)

      The accident in which Mr Gong was injured was caused by the direction Mr Gim gave Mr Gong to flip the plate manually, which was unsafe and resulted in it slipping and injuring him;

   10. (10)

       The risk that Mr Gong would be injured when attempting to flip the heavy metal plate manually, which materialised, was so obvious that not only AWI and Mr Gim, but also a qualified and experienced boilermaker such as Mr Gong, ought to have appreciated its existence at the time he attempted to flip the plate;

   11. (11)

       The result was that Mr Gong ought not to have been instructed, attempted, or permitted to attempt to flip the plate manually;

   12. (12)

       AWI and Mr Gong must both bear the consequences of their respective contribution to the accident which resulted in the injuries which he suffered as a result, for which AWI bears the greatest responsibility;

   13. (13)

       Mr Gong’s damages must be reduced, to reflect his contribution;

   14. (14)

       But account must also be taken of Mr Gong’s acquiescence to Mr Gim’s instruction, having been driven by Mr Gim’s bullying and threats which other workers had also experienced, when the extent of his contributory negligence is assessed; and

   15. (15)

       His damages having to reflect all of the injuries which Mr Gong suffered when the plate slipped and fell as it did, including the pain syndrome and psychological condition which he developed as a result, despite that having been an unexpected result of the plate striking his foot as it did, with the result that he was able to recover from the relatively limited physical injuries which he suffered.

Issues

1. [32]

   The parties agreed that:

2. [33]

   They also finally agreed that the risk of harm to which Mr Gong was exposed was the risk of a worker suffering injury by manually manipulating the plate without mechanical assistance by a crane. That being the true source of potential injury: Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330; [2007] HCA 42 at [60].

3. [34]

   There was also no issue between the parties:

   1. (1)

      That the Civil Liability Act 2002 (NSW) applies to the competing claims;

   2. (2)

      That Mr Gong bears the onus of proving any fact relevant to the issue of causation: Civil Liability Act, s 5E;

   3. (3)

      That AWI owed Mr Gong a duty as occupier of the factory and that Mr Gong was also owed a duty by his employer, Gong Engineering;

   4. (4)

      That the alleged negligence of AWI and Gong Engineering has to be determined in accordance with ss 5B and 5C of the Civil Liability Act;

   5. (5)

      That whether such negligence caused the harm Mr Gong claims he suffered must be determined in accordance with s 5D; and

   6. (6)

      Mr Gong’s claimed contributory negligence must be determined in accordance with s 5R.

4. [35]

   The parties also agreed that what was in issue concerned:

5. [36]

   In closing submissions, Mr Gong identified the most salient facts remaining in issue to be:

6. [37]

   As well as:

7. [38]

   The relevant principles which have to be applied in resolving all that is in issue were also largely not disputed. They include:

   1. (1)

      Employers such as AWI and Gong Engineering owe their employees a non-delegable duty of care which requires, if there is a risk of injury to the employee, the employer to take reasonable care to avoid the risk by devising a method of operation for the performance of their tasks which eliminates the risk, or provides adequate safeguards: Czatyrko v Edith Cowan University [2005] HCA 14 at [12]; (2005) 214 ALR 349;

   2. (2)

      The obligation to provide a safe system of work may extend to independent contractors who are engaged to perform work which may be done by employees, in circumstances where there is a risk of injury, given the nature of the work: Stevens v Brodribb Saw Milling Co Pty Ltd (1986) 160 CLR 16 at 31; [1986] HCA 1 at [26];

   3. (3)

      In such a case, the principal has a duty to use reasonable care to avoid unnecessary risk of injury and to minimise other risks of injury: Leighton Contractors Pty Ltd v Fox (2009) 240 CLR 1; [2009] HCA 35 at [20];

   4. (4)

      Workers also have a responsibility to take care for their own safety;

   5. (5)

      If it is reasonable to engage the services of independent contractors who are competent themselves to control their system of work without supervision by the principal, a duty to retain control will not be imported: Brodribb at [2];

   6. (6)

      Once an activity has been organised and its operation is in the hands of independent contractors, liability for negligence within their area of responsibility is not borne independently by the principal: Brodribb at [2];

   7. (7)

      Where a risk of injury arises from the nature of work and there is a need for direction and co-ordination of the various activities being undertaken, the principal will have a duty to prescribe a safe system of work: Leighton at [62];

   8. (8)

      A defendant is not vicariously liable for the tortious act of a worker who is not its employee, if the defendant has no authority to control the doing of the act and does not directly authorize it, even if the tortious act is done in performing work for the defendant’s benefit: Kondis v State Transport Authority (1984) 154 CLR 672 at 692; [1984] HCA 6;

   9. (9)

      Prima facie, the worker’s employer is vicariously liable for the tortious act. But if the employer is able and has transferred authority to control the doing of that act to the defendant, the defendant is liable. The nature and extent of the control transferred to the defendant or retained by the employer determines whether there is a shift of such liability from the employer to the defendant: Kondis at 692;

   10. (10)

       A principal can only be vicariously liable for the tortious conduct of an independent contractor if the principal has directly authorised the contractor’s tortious conduct or the contractor is the principal’s true agent: Bird v DP (a pseudonym) [2024] HCA 41 at [226]; (2024) 98 ALJR 1349;

   11. (11)

       In the case of agency, the conduct having the principal’s express authority or having been done in execution of the principal’s authority and not in an independent capacity: Sweeney v Boylan Nominees Pty Ltd (2006) 226 CLR 161; [2006] HCA 19 at [38] and [100];

   12. (12)

       As to fact finding, “when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality”: Briginshaw v Briginshaw (1938) 60 CLR 336 at 361; [1938] HCA 34;

   13. (13)

       The evidence must thus “give rise to a reasonable and definite inference” to enable a factual finding to be made, mere conjecture based on conflicting inferences of equal degrees of probability being insufficient: GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 280 CLR 442 at 472; [2023] HCA 32 at [60];

   14. (14)

       The law not authorising a court to choose between guesses, where the possibilities are not unlimited, on the ground that one guess seems more likely than another or the others. The facts proved having to form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied: Jones v Dunkel (1959) 101 CLR 298 at 305; [1959] HCA 8;

   15. (15)

       If the probability of an event having occurred is greater than it not having occurred, a common law court determining, on the balance of probabilities, whether an event has occurred, will treat the occurrence of the event as certain. But “if the probability of it having occurred is less than it not having occurred, it is treated as not having occurred.”: Malec v JC Hutton Pty Limited (1990) 169 CLR 638 at 642-643; [1990] HCA 20;

   16. (16)

       That approach not being inconsistent with “the requirement that the tribunal of fact be actually persuaded of the occurrence or existence of the fact before it can be found.” What is required being “a determination of the respective probabilities of the events having occurred or not occurred.” And there being “nothing in that analysis to suggest that the determination in favour of probability of occurrence should not require some sense of actual persuasion.”: Nguyen v Cosmopolitan Homes [2008] NSWCA 246 at [48];

   17. (17)

       The allegations in issue attract the requirements of s 140 of the Evidence Act 1995 (NSW), given their gravity, that requiring their clear and cogent proof: Briginshaw at 362 and Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66 at [2]; (1992) 67 ALJR 170 at 171; (1992) 110 ALR 449 at 450;

   18. (18)

       Human memory of conversations is fallible in the way explained in Watson v Foreman (1995) 49 NSWLR 315 at 318, the fallibility of human memory increasing with the passage of time: GLJ at [59];

   19. (19)

       Confidence as to recollection and honesty alone does not establish that evidence based on recollection provides a reliable guide to truth, with the result that the best approach is to base findings on inferences drawn from documentary evidence and known or probable facts: Gestmin SGPS S.A. v Credit Suisse (UK) Limited [2013] EWHC 3560 (Comm) at [15]-[22] and Longman v The Queen (1989) 168 CLR 79 at 107–8; [1989] HCA 60;

   20. (20)

       Assessment of the disputed evidence having to be approached in the way recently again explained in Hartnett v Trustees of the Roman Catholic Church for the Diocese of Wilcannia-Forbes [2026] NSWCA 35 at [64]-[68] and at [111]-126], where conclusions reached in AA v The Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle [2026] HCA 2, considered in St Paul’s College Ltd v Allan [2026] NSWCA 22 at [77]-[92], were explained; and

   21. (21)

       It having to be remembered that a witness who is not honest or reliable about one matter, does not necessarily have to be disbelieved about others: Sangha v Baxter [2009] NSWCA 78 at [155].

Other undisputed facts

1. [39]

   What is in issue thus has to be approached considering what was not disputed, including Mr Gong’s unchallenged background.

2. [40]

   On his evidence Mr Gong was born in North Korea, from where he unsuccessfully tried to escape more than once, and was imprisoned and tortured as a result. He finally escaped to South Korea, having lived and travelled through China and Cambodia. There he obtained a trade qualification, married twice and had children, before migrating to Australia with his family. Here he obtained further trade and other qualifications and worked as a boilermaker elsewhere, before commencing work at AWI’s factory for Ebenezer, under its arrangement with Gong Engineering.

3. [41]

   Before the 2021 accident, a few days after he commenced work at AWI, Mr Gong had never suffered any physical or psychological impairment, despite his challenging life experiences. His undoubted resilience resulted in a disagreement between the psychiatric experts. They not being able to agree whether his past experiences had protected him from the PTSD he was diagnosed to have suffered after the accident, or whether it predisposed him to succumb to psychiatric injury.

4. [42]

   As a result, while they did not agree that he suffered PTSD, they did agree that he had developed a depressive condition as the result of the accident, from which he continues to suffer.

5. [43]

   Mr Gong was wearing steel toed safety boots, but the plate struck a part of his foot not protected by the steel toe. There is no issue that the crush injury to Mr Gong’s foot was treated at Auburn Hospital, from which he was discharged later that day. He then wore a boot for some months, as well as using a wheelchair and crutches for a considerable time. While his physical injuries healed and he continued to receive a great deal of later treatment, Mr Gong continues to walk with a pronounced limp.

6. [44]

   The orthopaedic experts agreed that the 2021 accident only caused Mr Gong relatively minor physical injuries from which a full recovery within several months would ordinarily be expected, after his soft tissue damage and the bone fracture in his foot healed.

7. [45]

   But Mr Gong no longer has a normal gait. Even now still complaining of considerable ongoing pain and discomfort. This accords with him having been diagnosed after the accident, after he did not recover as expected, to be suffering complex regional pain syndrome for which he has also received treatment. But still he continues to suffer ongoing pain.

8. [46]

   The experts agreed that this was the likely result of both ongoing neuropathic pain and the impact of his psychiatric condition. When both orthopaedic experts examined him, they concluded that he did not then satisfy the Budapest criteria by which CRPS is usually diagnosed. But that he is still suffering ongoing pain, was accepted by both of them.

9. [47]

   Whether Mr Gong’s ongoing complaints about the symptoms he continues to suffer all reflect the ongoing consequences of the 2021 accident or, at least in part deliberate exaggeration, was in issue.

10. [48]

    But there is no issue that there has been measurable atrophy of Mr Gong’s right leg, about which the orthopaedic experts also agreed, and treating experts have also identified. While updated measurements and scans had not been obtained before the hearing, which the experts considered would have been of assistance, Mr Gong’s continued favouring of his left leg and abnormal gait were considered by them to be consistent with the ongoing, adverse consequences of his accident.

11. [49]

    But the evidence also pointed to Mr Gong’s position having improved since the accident. Consistent with this, he was able to sit for quite long periods in court giving evidence and listening to the proceedings, at times without apparent discomfort, or very often having to move his position.

12. [50]

    This must all be taken into account when resolving what is in issue, especially about his likely future.

13. [51]

    There is also no question that Mr Gong has given differing accounts about how he came to be injured, especially as to the weight of the plate which struck his foot, despite always having had the assistance of an interpreter at his many medical and treatment appointments.

14. [52]

    Mr Gim has also given different accounts of its weight. His evidence in cross-examination established that the plate had been weighed, that being recorded in drawings to which he had access at the factory, which AWI retained. Mr Gim could not recollect its weight, claiming at one point that he had paid no attention to its weight, even though it was he who had used the crane to move it to the trestle tables where Mr Gong was to undertake his grinding work. The crane operator having to pay attention to the weight of the plate, because the chains by which it was attached to the crane depended on its weight.

15. [53]

    The question of the weight of the plate, which on all of the evidence was too heavy to be manually flipped by only one person, was thus left unanswered, despite being known to AWI.

16. [54]

    It is obviously possible that Mr Gong has knowingly exaggerated its weight at times, given his conflicting accounts. But that it was so heavy that Mr Gim transported it to Mr Gong’s workbench by crane, helps establish that it could not safely be lifted by one person alone.

17. [55]

    There was finally no issue or doubt concerning the limited nature of the physical injury which the plate caused to Mr Gong’s foot when it fell. A photograph shows the graze, bruise and swelling on the top of his foot which it caused, consistent with the soft tissue damage the experts identified, but no haematoma. Scans and x-rays establishing that he also suffered a fracture to a bone in his foot, with the experts also identifying bone bruising.

18. [56]

    Mr Gong has not been left at risk of developing an arthritic condition in a joint, given the nature of the limited injury he suffered to his bones. There is also no issue that he has been left suffering ongoing neuropathic pain, the precise cause of which has been difficult to establish, despite his CRPS diagnosis and treatment.

19. [57]

    In closing submissions, AWI accepted that there was still something wrong with Mr Gong’s foot, with the result that he continued to suffer pain, as well as an ongoing psychiatric condition.

Reliability and credibility

1. [58]

   What finally remained in issue included whether Mr Gong and the witnesses he called had exaggerated, or not been entirely truthful in their evidence. AWI’s case being that Mr Gong was an unreliable witness and that the evidence of those he called could not be preferred. This was due to, in his case, the very different accounts he has given of the plate’s weight, ranging from over 100 kg to up to 400-500 kg, and matters such as the number of times he asked Mr Gim to use the crane, before he attempted to manually flip it and where Mr Gim was when the plate fell.

2. [59]

   In Mr Gong’s case it also being pertinent that some experts had formed the view, on functional testing, that he had not been entirely truthful, with some results considered invalid and others inconsistent. For example, there was one account of Mr Gong having refused to attempt to crouch, because that was then too painful, but later doing so in order to demonstrate something else.

3. [60]

   I am unable to accept that this established a basis on which Mr Gong’s evidence could be rejected, or the evidence of others preferred, given the evidence of the experts about CRPS, the consequences of his ongoing neurological pain and the impact of the psychological condition, which I am satisfied Mr Gong developed. As well as concessions which were made by other experts in cross-examination, which were relevant to adverse views others had earlier formed about Mr Gong.

4. [61]

   In the case of the evidence of witnesses AWI called, whether their evidence could be accepted, or preferred when it contradicted that given by Mr Gong and those he called, was also in issue.

5. [62]

   It is pertinent that the oral evidence of Korean speaking witnesses was given with the assistance of interpreters. In their cross-examination, they explaining why some matters had not been dealt with in their written statements, their statements reflecting questions they had been asked and answered. And the interpretation shedding light on some of the potential deficiencies of that process, which can be affected not only by how questions are asked, but also by the quality of an interpretation.

6. [63]

   There is no question that Mr Gong has given those who have treated or examined him very different accounts of the weight of the plate which fell and injured him. But so did Mr Gim.

7. [64]

   AWI also relied on Mr Gong being unable to identify the handwriting on invoices Gong Engineering issued after his accident, to urge the conclusion that he was not a credible or reliable witness. I am also unable to accept this.

8. [65]

   Mr Gong’s evidence included that his wife had attended to Gong Engineering’s financial affairs, as well as his own, including all of his workers compensation matters and tax returns, with the assistance of an accountant. With the result that he was unsure that the writing he was shown was hers, or that what had been submitted was true and correct.

9. [66]

   Mr Gong’s wife was not called and so it must be accepted that her evidence would not have assisted his case. But that does not establish that his evidence about these matters was untrue.

10. [67]

    When cross-examined, Mr Gong attributed inconsistencies in his evidence to problems he experiences with his memory, resulting from the passage of time, the ongoing effects of his pain, mental health problems, medications which left him with suicidal ideation, as well as his conscious effort to not remember or focus on bad experiences, which he had been advised to make. Which also helped explain why in his first statement, he had not volunteered information about his difficult experiences in Korea, which he did not consider explained the psychological problems he developed after the accident.

11. [68]

    It may be accepted that these issues raised questions about the reliability of aspects of his evidence, which thus had to be approached with care. But I do not accept that, as a result, it must be concluded that Mr Gong’s evidence could not be accepted. Including when it conflicted with that of Mr Gim in relation to the disputed direction. Other witnesses having supported evidence Mr Gong gave and there being no documentary evidence which supported that of Mr Gim.

12. [69]

    All witnesses made various appropriate concessions about problems with statements and answers which they gave, some of which appeared to be the result of interpretation issues. While aspects of the evidence of Ms Ryan and Mr Gim were supported by that given by Mr Bak, neither Mr Bak nor Ms Ryan were able to shed any light on whether Mr Gim had given Mr Gong the disputed direction.

13. [70]

    Mr Gong, amongst others, said that he had not received an induction when beginning work at the factory, Mr Gim having only shown him around and then given him work to perform. Mr Gong’s evidence finally accorded not only with that of other workers, but also with what Mr Gim revealed in cross-examination about his approach to induction, which he said focused on only what he considered to be important.

14. [71]

    Overall, I accept that Mr Gim was not a satisfactory witness, despite some of his concessions and what he finally volunteered. The result is that I am satisfied that his evidence must be approached with real caution. Not only was he reluctant to answer questions, having to be repeatedly asked and finally directed to answer various questions and not to make speeches, he also asked about the consequences of giving such evidence.

15. [72]

    As a result, I am satisfied that Mr Gim’s evidence cannot be accepted when not supported by other evidence. Not being satisfied that it was all given in strict compliance with his oath.

16. [73]

    I also have reservations about aspects of the evidence of Ms Ryan. While careful about how she answered what she was asked and making certain concessions contrary to AWI’s interests in relation to relevant matters, it must be accepted that she did not accept other matters put to her, as she ought to have.

17. [74]

    One aspect of her evidence, as to what Mr Gim was now engaged by AWI to do at its factory, was directly contradicted by both Mr Gim and Mr Bak, who AWI also called and who it now employs direct. Her oral evidence was that Mr Gim now works at AWI only as a boilermaker and ceased to provide workers to AWI about two years ago, on her best estimate.

18. [75]

    Mr Bak’s oral evidence revealed that he originally worked for Ebenezer when Mr Gim gave him instructions and that Mr La Rosa later instructed him, when Mr Gim went on leave for around two years. But after Mr Gim returned to AWI in 2024, he resumed his former role. and that Mr Gim still to this day was advertising for and recruiting workers for the AWI factory. That finally accorded with Mr Gim’s evidence in cross-examination, directly contradicting that which Ms Ryan had given.

19. [76]

    Mr Bak’s evidence, and that of Mr Gim, suggested that some phoenix arrangement had been entered. His services no longer being provided by Ebenezer, which has ceased to operate, but by another company. This may explain Mr Gim’s reluctance to answer questions, including about his current working arrangements.

20. [77]

    There was an issue about the number of welding screens, used for both grinding and welding work, available to workers at the factory. Ms Ryan agreed that this could have been established by purchase records, but that was not attempted by AWI. She was taken to photographs of the factory on which AWI relied, which she revealed had been taken after the accident, accepting that they did show some safety issues. She finally also revealed that AWI also had photographs which showed its actual state at the time of the accident, but they were not tendered. It must be inferred that they would also not have assisted AWI’s case.

21. [78]

    These problems, when considered with AWI’s failure to call evidence from its other managers who had relevant evidence to give, particularly Mr La Rosa, to whom Mr Gim reported and who supervised him and other Ebenezer workers, helped lead me to the conclusion that Ms Ryan’s evidence also had to be approached with some care.

22. [79]

    The Korean native speakers made statements in English which were translated before they were signed, with each giving their oral evidence with the assistance of an interpreter. In Mr Gim’s case, it becoming apparent that he had a considerable command of spoken English, but more limited ability to understand written English.

23. [80]

    The result of cross-examination was that the evidence of witnesses AWI called finally supported aspects of that given by Mr Gong and witnesses he called. Not only about the problems with induction and AWI’s communication about safety matters with Ebenezer’s Korean speaking workers, but also about the unsafe state of the factory, the limited availability of safety equipment and how work was organised, directed and supervised there.

24. [81]

    I finally concluded that although the evidence of Mr Gong, Ms Ryan, and Mr Gim cannot entirely be accepted, on important matters the evidence of Mr Gong must be preferred. It also having to be accepted that the witnesses who no longer worked for AWI had nothing to gain from their evidence, as was Mr Gong’s case.

25. [82]

    In the case of Mr Y Kim, it emerged in cross-examination that after he signed his statement and before he gave his oral evidence, he had made use of ChatGPT to translate his statement. He volunteered this after saying he could not understand a particular sentence which he himself had used in his statement, and then sought to refer to a Korean translation he had with him. He was not questioned further about this, and the translation was not tendered.

26. [83]

    What use Mr Y Kim made of ChatGPT is thus not entirely clear. But it must be inferred that before he gave his oral evidence, he refreshed his memory of his written English statement by accessing a ChatGPT translation. As a result, he claimed not to understand a word he himself had used in his written statement, despite again having the assistance of an interpreter at the hearing, which made this aspect of his evidence difficult to understand. But I do not consider that he was being untruthful. The explanation, I consider, lying in difficulties generated by interpretation.

27. [84]

    Mr Gim, who had a better command of English, had also used AI to translate AWI’s induction document. It should be accepted that for those of non-English speaking backgrounds, this is an increasingly useful way in their day to day life to help them understand documents written in English.

28. [85]

    Supreme Court Practice Note SC Gen 23 provides that evidence ought to reflect a witness’ own knowledge and not what has been generated by use of AI: Practice Note, cl 11. I am not satisfied, given the way in which the statements were produced with the assistance of interpreters, that this requirement was breached.

29. [86]

    Nor that the use Mr Y Kim made of ChatGPT before he gave his evidence was impermissible, refreshing his memory as it seems he did by having his English statement so translated again, an interpreter then not being available to him. That the AI translation was accurate, however, cannot be known.

What duty did AWI owe Mr Gong?

1. [87]

   Given the way in which AWI arranged the engagement and induction of Ebenezer workers by Mr Gim and the allocation and supervision of their work both by Mr Gim and Mr La Rosa, it is apparent that it actually recognised that it owed Ebenezer workers a duty of care. Just as it owed such a duty to those it directly employed to work at its factory, with whom Ebenezer tradesmen worked side by side, under the overall supervision of Mr La Rosa. He controlling the work performed, including the use of the crane, issuing directions to Mr Gim, who conveyed them to Ebenezer workers and at times also dealing with them directly.

2. [88]

   AWI’s duty being to use reasonable care to avoid unnecessary risk of injury to all those who worked together at its factory, including the Ebenezer workers, given the risk of harm to which they were exposed, given the work AWI’ had them perform there.

3. [89]

   I am thus unable to accept the case AWI pressed.

4. [90]

   Namely, that it conducted a business of undertaking projects using steel fabrication at its factory, having contracted Ebenezer to provide steel manufacturing and welding services there and requiring Ebenezer to both induct the workers it supplied and to supervise them, Mr Gim them instructions on behalf of Ebenezer. The evidence establishing that this was not a case where AWI had retained and exercised any supervisory power over the Ebenezer workers: Leighton at [20].

5. [91]

   Given all of the evidence, that may not be accepted.

6. [92]

   It is long recognised that in some circumstances, a principal will come under a duty to use reasonable care to ensure that a system of work for one or more independent contractors is safe: Brodribb at 31. The evidence established the one system under which both AWI’s own employees and those supplied by Ebenezer were required to work together at its factory under Mr La Rosa’s overall control, direction and supervision. He communicating to the Ebenezer workers through Mr Gim.

7. [93]

   There was no suggestion of any failure to take reasonable care in the employment of the Ebenezer contractors. But even if it were accepted that they were competent to control their own systems of work, AWI did not allow them or third parties such as Gong Engineering to exercise such control. Rather, requiring the contractors to adhere to the system which it had devised, in which it required them to be inducted. It also retaining supervisory power over them and their work, exercised by Mr La Rosa, to whom Mr Gim reported.

8. [94]

   This, it must be accepted, establishes that what AWI relied on could not establish that it had left Ebenezer with an area of responsibility, which had the result that it was not “liable for damage caused merely by a negligent failure of an independent contractor to adopt or follow a safe system of work either within his area of responsibility or in an area of shared responsibility.”: Brodribb at 47-48.

9. [95]

   AWI not only having established, implemented and controlled its system of work, which extended to the Ebenezer workers, which was not controlled by either Ebenezer or Gong Engineering, it also having retained and exercised supervisory power over all of the Ebenezer workers, not only over Mr Gim.

10. [96]

    The evidence accords with AWI having correctly identified that Ebenezer was not competent to control its own systems of work, or the supervision of the tradesmen it supplied. AWI’s approach did not, however, result in its system of work operating safely.

11. [97]

    That being the result of the approach AWI implemented and controlled, including in relation to induction, manual handling and safety of the Ebenezer workers. Necessary steps not having taken to ensure that what Ms Ryan conveyed at toolbox meetings in English about safety, was all translated into Korean. Mr Gim’s evidence I cross examination being that he only translated those parts of what she had said which he considered to be important.

12. [98]

    The arrangements AWI implemented reflected a recognition of its obligation to provide all those who worked at its factory with a safe system of work. That according with the work it required obviously giving rise to a real risk of injury, given its nature and the conditions under which it had to be performed. The system it adopted thus extended to all the work undertaken there by both Ebenezer workers and its own employees. But as implemented, it was not a safe one.

13. [99]

    AWI’s sole crane was then used to unload and load trucks as well as moving very heavy metal objects over the heads of workers as they undertook their work, including objects which required grinding and welding work. AWI’s safe work method also permitted manual handling, its single crane not having the capacity to deal with all that had to be moved.

14. [100]

    AWI contended that its situation was on all fours with that of Bostik Australia Pty Ltd v Liddiard & Anor [2009] NSWCA 167. In that case, a part of the premises Bostik occupied were used by another company, Brolton. Brolton had employed Mr Liddiard and supplied his services to Bostik, for cleaning and maintenance work.

15. [101]

    It was there concluded that Bostik did not owe Mr Liddiard a duty of care, Brolton remaining responsible for the manner in which he performed the work it gave him. It being explained that “was not a case in which any co-ordination of contractors was required, nor was there any other reason for the appellant to devise a safe system of work for the plaintiff.”: at [149].

16. [102]

    The circumstances established in Mr Gong’s case were entirely different.

17. [103]

    Unlike Bostik, AWI did control all activities undertaken at its factory, where there was considerable danger and risk to all workers, arising from its state and the activities which it pursued there. It devised the system which they all followed. And there were steps which could have been taken under that system of work, which would have lessened or removed the risk associated with manual handling of the metal plate Mr Gong was given to grind.

18. [104]

    The practical circumstances in which work was undertaken at its factory thus resulted in AWI owing a duty of care to both its own employees and the Ebenezer workers, when they were given such work to perform.

19. [105]

    This well explains why AWI did not leave the induction, training or supervision of the workers Ebenezer supplied entirely in its hands. Nor the direction or coordination of the work Ebenezer workers and AWI employees were given to perform. It follows that application of the principles earlier explained must thus result in the conclusion that AWI’s obligation to provide a safe system of work extended to the Ebenezer workers it engaged to work together with its own employees.

20. [106]

    The result of how AWI conducted its operation at the factory was accordingly, that it did owe Mr Gong a duty of care.

21. [107]

    AWI also relied on J Blackwood & Son Steel & Metals Pty Ltd v Nichols & Anor [2007] NSWCA 157, where it was found that Blackwood did not owe Mr Nichols, a driver, a duty of care, given that it had no control, let alone day-to-day control, over the task of securing the loads of the contractor vehicles he drove: at [64].

22. [108]

    That is also entirely different to the control AWI not only retained, but exercised day-to-day, over the work of the Ebenezer contractors.

23. [109]

    AWI’s approach involved organising how work was to be undertaken at the factory, with the result that it did not leave its performance in Ebenezer’s hands. Instead, AWI required Mr Gim to report to Mr La Rosa, who worked on the factory floor, directly allocating work, controlling the use of the crane and supervising all work performed there, at times with Mr Gim’s assistance: Brodribb at 47-8. Albeit Mr Gim himself also undertook trade work.

24. [110]

    Consistent with this, the evidence establishes that AWI attempted to meet its duty by the arrangements it put in place. They including its own supervision of the work of Ebenezer workers including Mr Gim, who gave directions in Korean to its other workers under Mr La Rosa’s control. As well as by the induction and training the Ebenezer workers were given in its systems, under the supervision of Ms Ryan, who also oversaw their safety with Mr Gim’s assistance.

25. [111]

    AWI’s safety systems included manual handling, regulated by a policy Ms Ryan had devised, which AWI relied on Mr Gim to translate. It also requiring Ebenezer workers to attend monthly toolbox meetings which Ms Ryan conducted with Mr Gim’s assistance, which at times dealt with manual handling. She also undertook regular safety checks on the factory floor, which included work performed by the Ebenezer workers, but she could not communicate directly with them.

26. [112]

    AWI’s defence, that it had delegated its duty to Ebenezer, was thus not established by the evidence. The onus falling on AWI to establish the claimed delegation: Bevillesta Pty Ltd v Liberty International Insurance Co [2009] NSWCA 16 at [53] and Laresu Pty Ltd v Clark [2010] NSWCA 180 at [69].

27. [113]

    AWI’s circumstances are akin to those explained in Leighton at [62]. There having been a risk to Ebenezer workers “of injury arising from the nature of the work and where there is a need for direction and co-ordination of the various activities being undertaken,” with the result that AWI, too, came “under a duty to prescribe a safe system of work.”

28. [114]

    AWI also had to exercise reasonable skill and care if it engaged someone else to take the steps necessary to fulfil the duty it owed Mr Gong and other Ebenezer workers. This could have been discharged by taking reasonable skill and care in the selection of a delegate, in arranging the terms of their engagement and in confirming that the person took the appropriate steps.

29. [115]

    AWI left in Mr Gim’s hands the identification, engagement and termination of suitable Korean speaking tradespeople. Which on the evidence could result when Mr Gim was dissatisfied with an individual’s work performance, as well as when AWI had a downturn in work.

30. [116]

    AWI also left their induction in Mr Gim’s hands, despite his evidence that he had no training in safety, nor even a complete understanding of the induction document. He did not translate or explain other documents to which it referred and on his own evidence, did not induct the workers in all that those documents contained.

31. [117]

    That AWI thereby engaged Ebenezer to fulfill the duty which it owed to the Ebenezer workers was not established. Nor that it took reasonable care in ensuring that Mr Gim took the steps necessary to meet the duties which the Ebenezer workers were owed.

32. [118]

    That AWI’s approach failed to ensure that Mr Gim provided the Ebenezer workers with the safety information which they required, including that delivered by Ms Ryan at toolbox meetings, was confirmed by the different approach AWI now adopts. Information she then provides now being conveyed to Korean speakers in a Korean document provided after the meeting, for example.

33. [119]

    That AWI failed to call evidence from managers such as Mr La Rosa and Mr Stuccio, or from Mr Mirabito, its “director owner” who also worked at the factory. to resist the case Mr Gong pursued, also supports the conclusion that AWI owed Mr Gong a duty of care.

Agency

1. [120]

   Their absence also supports the conclusions I have arrived at about agency.

2. [121]

   The undocumented contractual arrangements between the various companies involved in providing AWI with Korean workers, alone, could not establish the claimed agency. The mere fact that Ebenezer workers carried out work for AWI’s benefit not being sufficient: Colonial Mutual Life Assurance Society Ltd v Producers & Citizens Co-operative Assurance Company of Australia Ltd (1931) 46 CLR 41 at 48-9; [1931] HCA 53.

3. [122]

   The contractual arrangements were plainly not well understood by workers supplied by Ebenezer. That also being evidenced by the disagreement, after the accident, about who had responsibility for Mr Gong’s injury and workers compensation entitlements.

4. [123]

   AWI relied on Ebenezer having pursued its own interests to supply labour to work at its factory, to establish that Ebenezer did not act as its representative, when engaging workers such as Mr Gong. Generally, a principal is not liable for the negligence of an intermediate contractor such as Ebenezer: Hollis v Vabu Pty Ltd (2001) 207 CLR 21 at 36; [2001] HCA 44 at [32]. The central notion of agency being actual or apparent authority to act as a representative of, or on behalf of the principal.

5. [124]

   On the evidence, AWI gave Mr Gim such authority when it required him to induct Ebenezer workers in its system and to report to Mr La Rosa and convey, under his supervision, his decisions about the work to be undertaken to the Ebenezer workers.

6. [125]

   Even if agency was established, AWI denied any liability for Ebenezer’s negligence. On its case, there being no evidence that it had specifically instigated, authorised or ratified Ebenezer’s wrongful act, or that Ebenezer had made a relevant statement in the course of representing AWI, within its actual or apparent authority. Nor could AWI be taken to have assumed responsibility for Ebenezer’s actions.

7. [126]

   I am satisfied that this cannot be accepted.

8. [127]

   Ms Ryan gave evidence about how AWI required Mr Gim to conduct inductions for the workers Ebenezer supplied. This required him to use documents she had created, which he translated into Korean, to induct them in AWI’s systems, including its manual handling policy. It was also posted on factory walls, but was not there translated into Korean.

9. [128]

   This aspect of AWI’s system helped establish that Ebenezer was AWI’s agent. Its supervision and control of Mr Gim, who had to report to Mr La Rosa, who gave the directions Mr Gim conveyed to the Ebenezer, confirming that agency. What Mr Gim undertook as a result, having been done with AWI’s authority and for its benefit, rather than for Ebenezer’s benefit. What he was required to do not having been done in Ebenezer or his own independent capacity.

10. [129]

    That according with the arrangements AWI put in place for the supervision of all of the Ebenezer workers, when they worked side by side with AWI’s own employees. They all, together, being under Mr La Rosa’s overall control and supervision, rather than that of Ebenezer itself, Mr Gim being the vehicle through whom AWI communicated with the Korean speaking workers Ebenezer supplied, to convey to them Mr La Rosa’s directions.

11. [130]

    That reflecting the close connection between AWI’s business and Ebenezer’s conduct, for which AWI was as a result liable: Sweeney v Boylan Nominees Pty Ltd (2006) 226 CLR 161; [2006] HCA 19 at [22].

12. [131]

    The evidence thus well establishes that the induction, control, supervision and directions which Ebenezer gave the workers it supplied, all occurred with AWI’s authority and at its direction.

13. [132]

    Mr Gim’s evidence established that what he did was not always accurate, or complete. Over which AWI chose to exercise no control, it seemingly not having identified that he did not entirely understand the English documents it relied on him to translate or that he did not translate all that Ms Ryan conveyed at meetings. It is thus immaterial that AWI did not instruct Mr Gim to only translate parts of its induction document and the safety talks, as he in fact did.

14. [133]

    Despite this, it has to be accepted that what AWI required Mr Gim to do was within the scope of the authority it gave Ebenezer, who provided his services. AWI utilised him in all the ways I have explained, not merely to undertake the welding and grinding work which he was also qualified to perform.

15. [134]

    AWI did not need to authorise what Mr Gim actually did. It was enough that what he did was within the course of and for the purpose of executing Ebenezer’s agency, as I am satisfied the evidence establishes it was: Sweeney v Boylan Nominees Pty Ltd (2006) 226 CLR 161 at 170-171; [2006] HCA 19 at [22]-[24]. What he was required to do reflecting the closeness between AWI’s business and Mr Gim’s role, that being the result of AWI’s chosen approach to managing its factory and the work undertaken there, utilising the workers Ebenezer supplied, for which it is consequently liable.

16. [135]

    The course which AWI pursued rendered Mr Gim’s acts those of AWI, with Ebenezer acting through him as it did: Bird v DP (a pseudonym) [2024] HCA 41 at [31]-[35]; (2024) 98 ALJR 1349. AWI’s arrangement with Ebenezer having resulted in the engagement of the workers Ebenezer supplied to work at AWI’s factory, with AWI retaining direction and control over all of the work, including all that it required Mr Gim to perform.

17. [136]

    With the result, the creation of a true agency.

Did AWI breach the duty it owed Mr Gong?

1. [137]

   AWI’s case was that much on which Mr Gong relied to establish its claimed negligence had no causal potency. Finally contending that, despite all that the parties had joined issue over, Mr Gong’s reliance upon induction and other problems to establish his case had no relevance. Mr Gong had known that he should use the crane to flip the plate, with the result that the alleged failures he relied on did not help establish his case, that the cause of his claimed injuries was AWI’s negligence.

2. [138]

   I am satisfied that this cannot be accepted and that Mr Gong did establish his case.

3. [139]

   Section 5B of the Civil Liability Act is concerned with precautions being taken against a risk of harm. A defendant is liable in negligence if the risk in question was foreseeable, that is, one of which the person knew or ought to have known; it was not insignificant; and in the circumstances, a reasonable person in that position would have taken those precautions: s 5B(1).

4. [140]

   That imposing a more demanding standard than that explained in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 48; [1980] HCA 12, that a risk “which is not far-fetched or fanciful” was “real and therefore foreseeable” but “not by very much”: Shaw v Thomas [2010] NSWCA 169 at [44]. That not being particularly demanding: Rail Corporation New South Wales v Donald; Staff Innovations Pty Ltd t/as Bamford Family Trust [2018] NSWCA 82 at [140].

5. [141]

   The requirements specified in s 5B(2) to be considered being:

6. [142]

   I am also satisfied that Mr Gong has met the onus of establishing all that s 5B requires. Account again having to be taken of Mr La Rosa not having been called. Despite him undoubtedly having relevant evidence to give about matters such as AWI’s system, the use of the crane, his involvement in the supervision and direction of the Ebenezer workers, the use to which Mr Gim was put and how manual lifts were undertaken when required. But he was not called.

7. [143]

   Section 5Q provides that a defendant’s liability for breach of a non-delegable duty to ensure that reasonable care is taken by a person in the carrying out of any work or task delegated or otherwise entrusted to the person by the defendant, is to be determined as if the liability were the vicarious liability of the defendant for the negligence of the person in connection with the performance of the work or task.

8. [144]

   AWI criticised the way in which Mr Gong had pleaded particulars of its alleged negligence. Submitting, among other things, that the evidence had not established that it had required or permitted Mr Gong to lift the plate manually, and that it had not had a reasonable opportunity to intervene, to prevent or prohibit Mr Gim from pressuring Mr Gong to do so. There being no evidence that one of AWI’s employees had witnessed the disputed direction, if given, and that the evidence had not established how it should have ensured that Mr Gim did not do so.

9. [145]

   AWI also submitted that the Court would not accept that the evidence established that its system of work involved workers lifting heavy items without the use of a crane. And that the Court would not accept that heavy items were lifted without its use. The evidence also not having established how AWI ought to have ensured Mr Gim was prohibited from instructing workers to lift heavy items, without its use. Nor what would have involved proper supervision of such activities.

10. [146]

    AWI also contended that it had been Ebenezer who was responsible for managing its own subcontractors and how they worked. The ad hoc supervision provided by its personnel on the factory floor, Ms Ryan’s safety inspections and toolbox talks, having been sufficient to satisfy its obligations.

11. [147]

    AWI also argued that Mr Gong had not established that the risk in issue was not insignificant, nor how a reasonable person in its position could have implemented precautions which would have prevented the risk of the plate falling from materialising.

12. [148]

    I am satisfied that AWI’s case, so pressed, cannot be accepted.

13. [149]

    This not being a case like that considered in Vincent v Woolworths Ltd [2016] NSWCA 40, where the unlikelihood or very low probability of the occurrence of injury was such as to lead the Court to find that s 5B(1)(b) had not been satisfied: at [33]-[37].

14. [150]

    This conclusion begins with a consideration of the type of work undertaken at AWI’s factory, which required heavy metal objects on which both its own employees and Ebenezer workers had to undertake grinding and welding work, being moved to their workbenches by crane. And also being moved during the course of such work. Sometimes by hand.

15. [151]

    AWI’s manual handling policy, conveyed in the induction document, permitted such manual lifts. It providing:

16. [152]

    AWI’s own system thus contemplated manual lifts of the kind Mr Gong attempted, being undertaken. Even if a better option would have been a team lift, given its weight. That was no doubt permitted because AWI’s one crane did not have sufficient capacity to undertake all lifts required in its factory.

17. [153]

    Given this aspect of AWI’s system of work and its direct supervision of the Ebenezer contractors who were working alongside its own employees by Mr La Rosa, to whom Mr Gim reported and supervised his work, it cannot be accepted that the supervision it maintained over their work was only “ad hoc”. Rather, it was constant, Mr La Rosa at times also communicating directly to Ebenezer workers and Ms Ryan and other managers and even the owner at times being on the floor.

18. [154]

    AWI controlling not only the work allocated, but also the use of its crane by all who worked there and any manual lifts undertaken.

19. [155]

    On the evidence, the risk of a worker suffering injury when manually manipulating a heavy plate without the use of a crane was thus foreseeable. That was why the policy provided for team lifts being the preferable method.

20. [156]

    I am persuaded by all that has to be considered that AWI did not safely manage its requirement for manual lifts through the induction it arranged for Ebenezer workers, its safety documents, the training it arranged for those workers, or by the supervision actually given by Mr Gim and Mr La Rosa. Including when Mr Gong was injured, on his evidence Mr Gim then having moved to the other side of the factory.

21. [157]

    The risk of a metal item, which was too heavy to safely lift manually, falling and injuring a worker was obvious and not insignificant. It could easily have been addressed by use of the crane and if it was not available when needed, in the case of heavier items, by a team lift.

22. [158]

    After the accident, AWI installed a second crane. The risk could also have been addressed by AWI giving specific directions about when manual lifts should not be undertaken, what weight required a team lift, or requiring manual lifts only to be undertaken when supervised. The work method statement did not do so, as it could have. Nor, I am satisfied, were the risks involved in manual lifts otherwise safely managed.

23. [159]

    In the circumstances established by the evidence, a reasonable person in AWI’s position would have taken such precautions.

24. [160]

    That being the response of a reasonable person in its position, looking forward at the prospect of the risk of injury from a metal item too heavy for one person to safely lift manually, would have taken: Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420 at 438; [2009] HCA 48 at [31].

25. [161]

    Mr La Rosa was constantly present on the floor, other than when he was away on leave. Given his involvement in the allocation of work, use of the crane and supervision of all who worked there and that the workers could also be observed by the managers working in the offices on the mezzanine level above, it must be accepted that AWI could have arranged its system so that workers undertook manual lifts under supervision.

26. [162]

    It could also have easily specified what weights could safely be lifted manually.

27. [163]

    AWI called no evidence to establish that its own managers did not observe Mr Gong attempting the manual lift. While Mr Gim denied giving Mr Gong any direction about how the plate he was given to grind was to be flipped. Nor did he remain in Mr Gong’s vicinity, as he performed that work.

28. [164]

    All of this has helped persuade me that it must be concluded that AWI did breach the duty which it owed Mr Gong. The following has also helped drive that conclusion.

29. [165]

    The factory is open plan. On a mezzanine level, there are offices from which the factory floor can be observed by AWI managers. Mr Gong identified two Caucasian men who he knew only as the owner and the manager, who he understood gave Mr Gim his orders. But no evidence was called from either of them.

30. [166]

    Neither Mr Gim, Mr Gong nor other workers who gave evidence, other than AWI’s safety officer Ms Ryan, were employed by AWI at the time of the accident. Mr Bak was then an Ebenezer worker and is now employed by AWI. Mr Gim is now again working at the factory, his services being provided by a different company.

31. [167]

    In cross-examination, Mr Bak agreed that before Mr Gim left in 2022, he received his instructions from him and that when he returned, Mr Gim stepped back into his old role, which he continued to perform. That did not accord with Ms Ryan’s evidence, but was finally established in Mr Gim’s cross-examination.

32. [168]

    On all the evidence, it must be accepted that at the time of the accident, AWI’s system included Mr Gim recruiting Ebenezer workers and facilitating the direction of their work at the factory by Mr La Rosas supervision, that according with Mr Gim reporting to Mr La Rosa, not anyone at Ebenezer.

33. [169]

    There is no issue that under the applicable safety legislation, obligations in relation to ensuring safety were imposed on AWI, Ebenezer, and the companies it contracted with to supply the workers it provided to AWI, including Gong Engineering. As well as on the workers themselves, who were tradesmen.

34. [170]

    The accident shed light on deficiencies in AWI’s system, which had not ensured safety. AWI later changed aspects of its system, including by the installation of a second crane and how it communicated with Korean speaking workers about safety matters.

35. [171]

    Ms Ryan explained how AWI arranged its system of work and met its safety obligations at the time of the accident, including by having Mr Gim translate safety information into Korean. Because many of those working at the factory were native Korean speakers, various safety signs written in both English and Korean were located around the factory, as were some “in pictogram form, so that it can be understood by non-English speaking workers”.

36. [172]

    The evidence establishing that the manual handling which it permitted, was not in practice confined to lifts of items weighing less than either 20 or 25 kg, to which reference was variously made in the oral evidence, to which no reference was made in the policy.

37. [173]

    But the evidence also not establishing that they were informed about AWI’s manual handling policy, which was not posted in Korean around the factory and did not, in any event refer to such weights.

38. [174]

    Mr Gim’s evidence included that he gave workers an extra explanation of the induction document, to indicate more than 25 kg should not be lifted and Ms Ryan’s that she had referred to 20 kg lifts in safety talks. I am unable to accept that this was in fact conveyed to the Ebenezer workers, given the evidence of manual lifts actually undertaken.

39. [175]

    Mr Gim’s evidence also included that such a limitation was not referred to in the Korean document he created, but was inserted into a later one, which he received after he returned to work at AWI, having left for a period after Mr Gong’s accident.

40. [176]

    In the result, it cannot be accepted that AWI’s system included any weight limit on manual lifts.

41. [177]

    I am satisfied that the evidence established that AWI did not discharge its duties by delegating the supervision of the Korean speaking workers Ebenezer provided to Ebenezer, when they worked under the system it implemented at its factory. And that it did not require workers to be supervised when undertaking manual lifts.

42. [178]

    AWI retained its overall control and supervision of the Ebenezer workers by having Mr La Rosa direct and supervise Mr Gim, who reported to him. Mr La Rosa not only arranged the work undertaken, including by Ebenezer workers, but also supervised that work, including the use of the crane, mainly communicating with them through Mr Gim, who was also a tradesman who was allocated and performed trade work.

43. [179]

    Despite this, Ms Ryan’s evidence was that AWI did not investigate the cause of Mr Gong’s accident. She only spoke to him before he was taken to hospital when she provided first aid. She also did not speak to any of those working on the factory floor near him, to establish what had happened. Apart from speaking to Mr Gim, nothing more was done to investigate the accident, despite AWI having become aware that Mr Gong had been injured when attempting to manipulate a very heavy object.

44. [180]

    That accorded with manual lifts being a part of AWI’s system of work, which was not required to be supervised, or limited by weight.

45. [181]

    Ms Ryan thus agreed that no specific risk assessment had been undertaken for Mr Gong’s lift, which was only regulated by its manual handling policy. AWI made no specific provision for the supervision of such tasks by the work method statement which Ms Ryan had created after a risk assessment, or by its manual handling policy. They also made no reference to the weight of what could be manually handled.

46. [182]

    Ms Ryan also said that during her 15-minute safety audits she had observed crane lifts which Mr La Rosa supervised being undertaken, he having instructed those who were to undertake them. She gave no such evidence about observing manual lifts, although she had addressed them in her toolbox talks. That what she then said was conveyed to the Ebenezer workers was not established.

47. [183]

    Mr Gong did not attend such a talk during the few days he worked at the factory.

48. [184]

    Photos of the factory taken after the accident, as well as workshop inspection records Ms Ryan prepared regularly in 2021, were relied on by AWI to help establish the then state of its factory. Those records reflected safe work practices Ms Ryan said were then observed, as well as problems identified and rectified. On her evidence, the factory then had no record of previous accidents.

49. [185]

    Whether the photographs reflected the state of the factory at the time of the accident, was in issue. Mr Gong and other workers described the factory to have been untidy to the point of being unsafe, with even entrance and egress to the factory being impeded by materials stored there. And workers not being given access to safety equipment when performing their work. That was also in issue.

50. [186]

    Ms Ryan’s evidence was that at the time of the accident, the factory was in a similar state to that shown in the photos tendered. She was cross-examined about unsafe aspects of what they depicted, including trip hazards and welding screens which had gaps and holes, which she accepted, in part.

51. [187]

    Ms Ryan also revealed that photos which showed the actual state of the factory at the time of the accident existed. But they were not annexed to her statement nor tendered. The result is that it must be inferred that they would not have assisted AWI’s case as to the state of the factory and safety risks then present there.

52. [188]

    It follows that it cannot be accepted that the photos AWI relied on to meet the evidence of those workers who described the state of its factory to have been unsafe at the time of the accident, can be preferred.

53. [189]

    In so far as AWI’s defence rests on such evidence, it cannot be accepted.

54. [190]

    On Ms Ryan’s evidence, AWI relied on Mr Gim to induct all new Korean speaking workers Ebenezer introduced, using the induction document she had created, which he had translated. It was she who inducted English speaking workers AWI employed. She was not always present when Mr Gim carried out an induction for Ebenezer workers and could not, in any event, understand what he told them in Korean.

55. [191]

    I am satisfied that Mr Gong’s evidence that he was not inducted when he began work must be accepted. That was supported by the experience of other workers, with even Mr Bak’s evidence being that he had commenced work at the factory immediately after Mr Gim giving him a brief explanation about how to operate the crane. It was also finally supported by aspects of Mr Gim’s evidence.

56. [192]

    Mr Bak said that safety instructions were given at toolbox meetings, not on the first day, when he had to sign a booklet to show that he had received some training. It was not produced, but he remembered it included safety rules, including about the load limit of the crane.

57. [193]

    Mr Y Kim had only met Mr Gong after the accident, and came to give evidence after being approached by Mr Gong’s lawyers. He had worked at the factory for some three months before he quit after, on his evidence, hearing that Mr Gim had been discussing getting rid of him. His evidence was also that he had not received any induction, when he commenced. This was disputed by Mr Gim, who gave quite a different account of why he had come to have a poor view of Mr Y Kim and how he came to leave, which is unnecessary to resolve.

58. [194]

    Mr Y Kim agreed in cross-examination that as a tradesman he understood he had his own obligations in relation to safety, and he had not raised concerns with Mr Gim about any lack of safety training. But he had no memory of being shown the induction document and denied being told to use the crane, if he had to lift anything heavy.

59. [195]

    Mr Gim’s evidence was that his inductions were always directed to the written AWI documents. In cross-examination he disclosed, however, that he had only translated those parts of AWI’s document which he thought were important, with the assistance of AI, himself not understanding parts of the document and having had no training in safety matters. What he translated appears not to have been known to AWI, which does not seem to have obtained an English translation of the Korean document Mr Gim created. That it did not accurately reflect all of AWI’s document must follow.

60. [196]

    AWI at one time itself employed a Korean speaker, but there is no suggestion that he was involved in the induction of Ebenezer workers. Or that he was used to enable AWI to understand what information Mr Gim was actually conveying to those workers, or the directions he was giving them about their work, which Mr La Rosa could not understand.

61. [197]

    The result, it must be accepted, is that Mr Gong did not receive the induction AWI intended. That he and others Mr Gim inducted did not consider that they had received any induction, other than being shown around the factory, as was also the evidence of Mr S Kim, must be accepted as having had a good foundation. Even Mr Bak’s cross-examination supporting evidence of other workers about the inadequacy of what he was told about, when he commenced work for Ebenezer.

62. [198]

    Mr Gim’s evidence as to what he told workers about, including manual lifts, cannot be preferred. Mr Gim also having given contradictory and confusing evidence about Ebenezer workers being required to sign a document, confirming that they had been given safety instructions when they commenced, which he then provided to AWI’s safety team. But he also said that document was not signed by Mr Gong, and ultimately, that it was not then required by AWI.

63. [199]

    There were many other problems with Mr Gim’s evidence, which is why I am satisfied that in the case of conflict, the evidence of other witnesses must be preferred over his. Given my views about the unreliability of his statements, and all that he finally conceded in cross-examination.

64. [200]

    I have thus concluded that on induction Mr Gong was not told about AWI’s manual handling policy, or that weights of more than 25 kg were not to be lifted.

65. [201]

    Ms Ryan’s evidence was that Mr Gim, at the time of the accident, translated what she said in toolbox talks which both AWI employees and Ebenezer workers had to attend. That being when they had the opportunity to raise any concerns. But Mr Gim’s evidence in cross-examination was that, like with induction, he only translated part of what Ms Ryan said at these talks, those which he considered important.

66. [202]

    That this arrangement gave Ebenezer workers a real opportunity to raise concerns about Mr Gim, or anything else, is not apparent.

67. [203]

    Mr Bak explained AWI’s current, different practice of providing a Korean translation of what Ms Ryan says at toolbox talks after the meeting, which did not exist at the time of Mr Gong’s accident. With Mr Gim then only providing an explanation of what the talk had been about.

68. [204]

    In cross-examination, Mr S Kim accepted that the toolbox meetings he described as having been conducted on a random basis as a pretence of safe working practices occurred monthly, he having signed a record of his attendances. Still, it must be accepted that there was a basis for his view that these meetings were a pretence, given what emerged in the cross-examination of Ms Ryan and Mr Gim, about how they were arranged and the limited information actually conveyed to Ebenezer workers.

69. [205]

    Mr Gim’s evidence establishing that he had no training in safety and his approach according with him not having a good understanding of what it required.

70. [206]

    There was no issue that Mr Gong had never attended such a talk. On his evidence, he had met Ms Ryan for the first time when she attended on him after the accident, when it was decided to take him to hospital by car, because of the cost of an ambulance.

71. [207]

    It was AWI’s induction document which referred to its manual handling policy. A work method statement posted in the factory dealt with the crane, under picture grams of workers, but not with manual handling. It said “Double chain lift carried out. Move with the load and never lift over anyone, Communicate”. It follows that these documents did not specify weight restrictions for manual lifts.

72. [208]

    Ms Ryan was not involved in the supervision of the Ebenezer workers and was only on the factory floor from time to time, also having responsibility for work she undertook for another company which operated out of the same premises. While she had often observed workers waiting to use the crane, she had never observed them being pressured to compromise safety, by attempting manual lifts.

73. [209]

    There is evidence of Mr Gim often instructing workers to lift weights of more than 25 kg manually to get the job done, without a team lift, and not to wait for the crane. On Mr Kang’s evidence this often occurred in the presence of AWI employees, he believed including Ms Ryan. Given how the factory was organised and the work was supervised and overseen by AWI managerial staff, even if not observed by her, the proper inference is that it was observed by other managers.

74. [210]

    Mr Gim denied requiring such lifts, but they were not precluded by AWI’s written policies. That AWI had been assessed as complying with various safety standards, as was Ms Ryan’s evidence, does not alter that its policy did not limit weights which could be manually handled. That could be the subject of a safe work method statement, but it was not. In any event, when Mr Gim was cross-examined about his understanding of safe work methods, he had no understanding of that term, and could not even say that he had used that concept in his inductions.

75. [211]

    The evidence thus accords with no, or at least no adequate steps being taken by AWI, Ebenezer or Mr Gim to train Ebenezer workers, particularly Mr Gong, in this aspect of AWI’s system on induction, or subsequently. Nor did it require workers to adhere to its manual handling policy in their work, which did not impose limits of the kind Ms Ryan and Mr Gim claimed they had explained to workers.

76. [212]

    The evidence rather accords with AWI having an unsafe approach to manual handling, despite what they claimed.

77. [213]

    Consistent with the written policy, it is possible that the lift Mr Gong attempted could have safely been undertaken by a team lift, but that was neither party’s case. The policy did not, in any event, specify weights which could be safely lifted by a team lift.

78. [214]

    This may help explain why AWI did not disclose the actual weight of the plate, which according to Mr Gim, it knew. That, it must be accepted, also does not support the case it advanced.

79. [215]

    For his part, Mr Gong denied being instructed not to manually lift anything over 20 kg. Other witnesses spoke of having undertaken lifts of over 25 kg, which they knew to be unsafe, but were still required.

80. [216]

    There was evidence of Mr Gim and other workers lifting an 80 kg item together. Mr Kim, who accepted that on his experience as a welder, more than 25 kg should only be lifted by a team lift, said he had been required to lift weights of over 100 kg at the factory. On one occasion some 300 kg, explaining in cross-examination with the aid of a diagram how that had been possible, given the shape of the particular item which he had been able to lever.

81. [217]

    Mr Gong also explained how he had attempted his failed lift, by using his shoulder.

82. [218]

    This makes it difficult to accept Mr Gim’s evidence that if he had seen Mr Gong attempt to lift the plate, he would have stopped him. Even those nearby waiting for the crane who watched Mr Gim attempt the lift did not step in to help him undertake a team lift. Nor were they directed to.

83. [219]

    Ms Ryan’s evidence also included that at toolbox meetings, she often told workers to use the crane if they could not comfortably lift an item with one hand. Not only was that not what its manual handling policy provided, that this was ever conveyed to the Ebenezer workers by Mr Gim was not established. His evidence being that after the meetings he translated only those parts of what Ms Ryan had said, which he considered important.

84. [220]

    This helps establish that AWI did not have a safe system of work in operation at its factory and that it breached the duty it owed Mr Gong, who was directed to undertake the manual lift which he was unable to manage, because of the weight of the object he was working on.

85. [221]

    Manual handling having formed part of AWI’s system and Mr Gim’s direction according with how manual handling was undertaken at the factory, in practice.

86. [222]

    Despite there being issues about how AWI’s crane was operated and whether a license to operate it was required, which Ms Ryan did not consider to be necessary, there was no issue that Mr Gong did not attempt to use it when he manually flipped the plate. On his account, as the result of Mr Gim pressuring him not to wait until the crane was available.

87. [223]

    In her cross-examination Ms Ryan denied any licensing requirement. Consistent with this, whether a worker held such a license was not amongst the information AWI gathered from those who worked at its factory when they commenced. Nor was this dealt with in its induction or other documents.

88. [224]

    Ms Ryan agreed that safe operation of the crane required instruction on how to do so, given the dangerous work undertaken in the factory by its use. Safety depending on matters such as:

89. [225]

    AWI had no safe work method statement for the operation of the crane, although on Ms Ryan’s evidence there were diagrams displaying how to secure loads around the workshop. On the evidence, Mr Gim gave some instructions about such matters.

90. [226]

    There was no issue that, like other workers, Mr Gong did not have a license to operate AWI’s crane. Mr Gong and other workers understood such a license was required to operate the crane, although Mr Gim told them that was not necessary. While this accorded with Ms Ryan’s understanding, AWI did not seek to establish that her understanding was correct.

91. [227]

    Mr Gong’s evidence that Mr Gim told him to use the crane despite not being licensed to use it, was consistent with the experience of other witnesses, including Mr Bak, who were also unlicensed.

92. [228]

    On Mr Gim’s evidence initially was that Mr Gong had used the crane at least 20 times in the days he worked at the factory before he was injured, only twice having to wait to use the crane. He having instructed Mr Gong on induction not to lift or move anything over 20 kg and that if he had any doubt, he should use the crane, which he then showed him how to use.

93. [229]

    This was disputed, as was Mr Gong’s actual use of the crane. In his second statement, Mr Gim accepted he had used it on a few occasions.

94. [230]

    In his cross-examination, Mr Gim said that Mr Gong may have used the crane as few as five times. As he was only worked a few days before he was injured, it must be accepted that his use of the crane was limited.

95. [231]

    Unchallenged expert evidence was finally led from Dr Mark Gillies, a biomedical engineer, without objection, his qualifications and experience having been clarified. He explained his view that given its apparent substantial weight, the plate should have not only been placed on the trestle where Mr Gong worked, but also flipped by a licenced gantry crane operator.

96. [232]

    That evidence must be accepted, but it was not how AWI arranged the operation of its crane.

97. [233]

    When he commenced work, Mr Bak had asked Mr Gim about using the crane because he did not have a license. Mr Gim told him he needed one, but still Mr Bak didn’t obtain one, having had a license in Korea. With the result that he used the eight tonne crane on many occasions in his work, despite being unlicensed. As did other unlicensed workers.

98. [234]

    It was Mr Gim who moved the plate to Mr Gong’s workbench despite, finally, on his evidence, not having made himself aware of its weight and not giving Mr Gim any direction about flipping the plate. Even though that was known to AWI and recorded on diagrams he had access to.

99. [235]

    On all that evidence it must be accepted that the way in which AWI permitted workers to operate the crane without being licensed, or knowing the weight of what was to be worked on, as was the position into which Mr Gim said he put Mr Gong, was not safe.

100. [236]

     Given the manual handling policy, Mr Gong should have been directed that the crane had to be used to flip the plate, if a team lift could not safely be undertaken and not to flip the plate by himself. He was not given such a direction.

101. [237]

     I am satisfied that instead, the disputed direction was given.

102. [238]

     Mr Gong’s case was that there were only three possible explanations for how he came to be injured. That Mr Gim had pressured or bullied him to flip the plate manually; that secondary to the unsafe culture in operation at the factory he was pressured to do so; or that of his own accord, he made an irrational decision in circumstances where AWI was blameless, as was its case.

103. [239]

     His case being that it was Mr Gim who gave him the disputed direction, which resulted in him unsuccessfully attempting alone to flip the plate.

104. [240]

     Various witnesses gave evidence about the approach adopted by Mr Gim to work they were given to perform, which supported Mr Gong’s case. Although much of the evidence Mr Gong relied on was attacked as unreliable, witnesses’ engagements having been terminated by Mr Gim, for reasons they did not accept. That was disputed.

105. [241]

     For his part, Mr Gim denied that he had bullied workers, including Mr Gong; required unsafe work to be performed; threatened them with dismissal if they did not accede to his demands to lift heavy items; or had acted disrespectfully towards them, or humiliated them.

106. [242]

     Mr Gim finally explaining in cross-examination that he had only ever become angry about safety issues, when he required workers to follow the rules to use the crane or a screen, which made him upset at times. But he also said he turned a blind eye to safety problems, not wanting to upset workers. Also denying that there was ever pressure for work to be completed.

107. [243]

     I am unable to accept Mr Gim’s contradictory evidence, which finally became quite implausible and, I am satisfied, cannot be preferred over that of Mr Gong and other workers, who gave accounts of the treatment Mr Gim denied.

108. [244]

     Ms Ryan’s evidence was that she had never observed Mr Gim being aggressive or demanding, and had never received complaints about him. But unlike Mr La Rosa, she was not always on the factory floor to observe Mr Gim’s approach to the Ebenezer workers.

109. [245]

     AWI’s case included that the circumstances which Mr Gong claimed had resulted in his accident were inherently implausible. Given that it was common for workers to have to wait to use its crane, which Mr Gim claimed typically resulted in delays of only up to five minutes. There thus being no rational reason for Mr Gong to have been singled out to work more quickly, or to flip the plate manually, as he claimed.

110. [246]

     I am unable to accept this.

111. [247]

     There was no issue that when Mr Gim was injured, work was being delayed because a number of workers had to use the crane, which was often the case at the factory. Mr Gim’s evidence was also that the plate was not urgently needed, so there was no need for him to give Mr Gong the disputed direction. But it is apparent that work was often delayed because the crane did not have sufficient capacity to undertake all required lifts without delay, and that at times the factory was under pressure to produce required work.

112. [248]

     A rational explanation for Mr Gim then directing Mr Gong to flip the plate manually was that he considered that to be safe, Mr Gim finally claiming not to have known the weight of the plate. Despite its weight being known to AWI and he having moved it by crane, which also required him to know its weight, in order to safely operate the crane.

113. [249]

     Another available explanation was that requiring a manual lift was part of Mr Gim’s usual approach, as was the evidence of various witnesses. Manual lifts were part of AWI’s system, Mr Gim often requiring workers to undertake them, rather than waiting for the crane, even when the items lifted weighed more than 25 kg.

114. [250]

     Mr Gong undoubtedly attempted to lift the plate after they spoke, with neither Mr Gim, nor the other workers who saw Mr Gong attempt the lift, assisting him by a team lift. On Mr Gim’s evidence, he gave Mr Gong no directions at all about flipping the plate, expecting him to use the crane. That did not accord with his claim that he did not know its weight.

115. [251]

     But others observed them speaking before Mr Gong attempted the lift, with Mr Gim neither assisting him, nor arranging a team lift. Even though other Ebenezer workers were standing nearby waiting for the crane and the system provided for such lifts.

116. [252]

     In resolving what is in issue, it is thus relevant that the weight of the plate was not established, despite it emerging in Mr Gim’s cross-examination that this was known to AWI, albeit he finally claimed not to him. This cannot be accepted, given that it was Mr Gim who moved the plate by the crane, which had to be known in order to safely use the crane to lift the plate and his evidence that the weight was recorded on diagrams identifying the work to be undertaken.

117. [253]

     Mr Gong said they had spoken about that diagram when Mr Gim gave him the work to do. That lending support, I accept, to the likely position that at the time of the accident, Mr Gim did not perceive a flip of the plate to require either use of the crane, or a team lift.

118. [254]

     That also according with evidence that Mr Gim had pressured others to undertake manual lifts of weights of over 25 kg, about which a number of the witnesses gave evidence. Mr Y Kim denied knowledge of team lifts being used for objects over 20 kg. On his evidence, Mr Gim had directed him to help lift a staircase handrail which weighed over 80 kg, which he considered too heavy to lift manually. He had also been directed by Mr Gim not to wait for the crane, but to move other heavy items manually.

119. [255]

     On Mr Kang’s evidence, he had often lifted items weighing more than 25 kg, which Ms Ryan had observed. But she may, of course, not have known the weight of what he was lifting.

120. [256]

     Mr S Kim’s evidence included that Mr Gim was an aggravated and angry man, disrespectful to workers and always focused on speed of work, telling off anyone he considered not to be working to full capacity and threatening dismissal if they were not working hard. And that Mr Gim was never satisfied, no matter how hard they worked, becoming angry when three or four workers had to wait for the crane. On some occasions, Mr Gim directing workers to begin new tasks rather than waiting, even when doing that seemed illogical.

121. [257]

     The result, according to Mr S Kim, was that even experienced workers cut corners, regularly lifting items which weighed more than 25 kg, despite knowing this was unsafe and contrary to proper practice. While this was dangerous, that was preferable to being abused and threatened with dismissal. He had seen Mr Gim dismissing workers on three or four occasions, without consulting anyone from AWI.

122. [258]

     Mr S Kim also said that Mr La Rosa, who oversaw the progress of jobs, was also often angry and criticised work, giving instructions to Mr Gim which he communicated to workers. Both he and the owner observed Mr Gim’s behaviour, the dangerous lifting of heavy items without a crane, and welding and grinding work performed without screens. Ms Ryan was also on the floor at times, but on Mr S Kim’s observation, she never took issue with such approaches. That was denied by Ms Ryan.

123. [259]

     But both Mr Gim and Ms Ryan accepted that at times there was pressure for particular work required at the factory to be performed quickly. What Mr Gim said to Korean workers in Korean was not understood by Ms Ryan or other AWI’s managers, none of them speaking Korean.

124. [260]

     I have concluded that it must be accepted that they must have observed Mr Gim shouting and swearing at workers, including at times in English, as was the evidence of the workers Mr Gong called, despite Mr Bak’s evidence that he had not seen such behaviour. That was denied by Mr Gim, but in cross-examination he explained why, at times, he might have been observed behaving in an angry fashion. AWI not calling evidence from Mr La Rosa thus supporting the acceptance of the evidence that Mr Gong led about Mr Gim having pressured other workers, as well as him, to undertake unsafe lifts.

125. [261]

     That such behaviour may have occurred in a factory setting of the kind AWI operated, where at times work had to be performed under the pressure the witnesses explained, can logically be accepted. While that is not determinative of how Mr Gim treated Ebenezer workers, or Mr Gong at the time of the accident, it lends support to their evidence. Including in relation to the disputed direction.

126. [262]

     On all the evidence I accept that AWI’s business needs resulted in Mr Gim, at times, pressuring those Ebenezer workers, at threat of dismissal, to undertake manual lifts which they considered to be unsafe.

127. [263]

     I am also persuaded that it must be concluded that Mr Gim gave Mr Gong the disputed direction to manually flip the plate.

128. [264]

     Mr Gong had been engaged to perform the work of a welder, but there was no issue about his capacity to perform the grinding work he was given. There was also no issue that having ground down the top edge of the plate, it needed to be flipped so that Mr Gong could work on its bottom edge, although in his cross-examination at one point, Mr Gim sought to cast doubts even on this.

129. [265]

     While Mr Gong’s evidence about this was not consistent, the evidence establishes that at the time of the accident, Mr Gim was across the factory, having left Mr Gong to his grinding work. Mr Gim accepted that Mr Kang was in a good position to have seen the accident. So was Mr S Kim. In cross-examination, Mr Kang agreed that Mr Gim had gone to the other side of the factory after moving the plate by crane to the trestle table where Mr Gong was to work on it, having spoken to Mr Gong about the grinding work he had to perform.

130. [266]

     In his first statement, Mr Gong said:

131. [267]

     In his second statement, Mr Gong explained Mr Gim’s usual anxious manner, irritated tone and demeanour and how, in the first hour on the first day, he had told him, “if you don’t get these things done quickly, the manager will fire you.” As well as how Mr Gim spoke rudely to other workers, threatening to fire them if they did not work faster, swearing and shouting at them, although it was noisy and hard to hear people speak. He saw that Mr La Rosa, referred to by witnesses as the boss or owner, mostly spoke to Mr Gim who conveyed his instructions to the Korean workers, but he also heard them talking about work which had to be done urgently. That accorded with the evidence of other witnesses, including Mr Gim.

132. [268]

     In his cross-examination, Mr Gim accepted that there were occasions when he got angry, on his account when there were safety issues which he spoke to workers about when they still did not follow the rules. But he also said that he did not really look into safety issues “that closely because that makes people that work there uncomfortable”. Implausibly, he also said that he turned a blind eye to safety issues to avoid hurting people’s feelings.

133. [269]

     But Mr Gim denied pressuring workers because of pressure he had received from AWI. Volunteering that he had also not fabricated reasons for having become angry with Mr Kang and Mr S Kim.

134. [270]

     On Mr Gong’s evidence, when Mr Gim gave him the plate to work on, Mr Gim told him it had to go out tomorrow and “so you need to do it really fast. ASAP.” He then had to measure the plate to ascertain its dimensions. After the accident, he had estimated its weight through a mathematical formula he found online.

135. [271]

     There were difficulties experienced with aspects of the interpretation during cross-examination, partly driven by the questions put including to Mr Gong, despite there being no objections, which appeared to result in certain confusion at times. But Mr Gong denied that he was seeking to change his evidence to advance his case, or to make it fit with that which other witnesses had given.

136. [272]

     For example, Mr Gong referred to Mr Gim having explained the work he was given by reference to a diagram, to which he had not referred in his statements. But Mr Gim also referred to such diagrams in his cross-examination. That they existed and were discussed, cannot sensibly be rejected, despite not having been referred to in statements.

137. [273]

     In his cross-examination, Mr Gong was also asked about a statement he had earlier made to an investigator, Mr Cunningham, which he had never signed or adopted. Not much can be made of this. The statement not having been tendered and Mr Gong not having a good recollection of what he told Mr Cunninham, in answer to questions he was then asked.

138. [274]

     Finally, Mr Gong’s evidence was:

139. [275]

     Mr Kang overheard part of the conversation between Mr Gong and Mr Gim and witnessed the accident. He said Mr Gim asked why Mr Gong was standing still, and him telling Mr Gim that he was waiting for the crane. He also saw Mr Gim move to the other side of the factory before the plate fell. But he was not sure if Mr Gong had told him that Mr Gim had instructed him to flip the plate.

140. [276]

     Mr Gim denied having directed Mr Gong to flip the plate manually.

141. [277]

     Mr Gim’s evidence included that he had not expected Mr Gong to attempt a manual flip, given its weight.

142. [278]

     On his evidence, Mr Gong and other workers were aware that one person should not attempt a lift of something weighing more than 20 or 25 kg. But the evidence establishes that the system AWI had in operation at the factory did not preclude lifts of even greater weights being attempted and required.

143. [279]

     That Mr Gim ever gave such an instruction to Mr Gong cannot be accepted. AWI’s own documents not requiring Mr Gim to give such an instruction.

144. [280]

     That Mr Gim had directed Mr Gong not to wait to use the crane, but to flip the plate manually, was also in issue.

145. [281]

     Mr S Kim was standing nearby waiting for the crane when the accident occurred. He saw Mr Gong attempt to flip the plate, which he believed weighed over 100 kg, possibly hundreds. He was then waiting to use the crane, having finished work on a heavy piece of metal that had to be moved from his station. But he did not offer to assist Mr Gong by a team lift. Nor was he directed to.

146. [282]

     Mr S Kim insisted that he saw not only Mr Kang nearby, but the accident itself happen, having heard Mr Gim tell Mr Gong, “there’s no time to wait for the crane, this is urgent, just get it done, the boss is watching and you will be fired”. On the evidence, the factory was noisy and he alone was near enough to have heard what Mr Gim said to Mr Gong.

147. [283]

     Mr S Kim believed the manual lift to be dangerous. He saw Mr Gong lifting the plate off the table and as he got it more vertical, while it was still resting on the table, it fell, crushing Mr Gong’s foot between the plate and the concrete. With Mr Gong falling to the ground in pain.

148. [284]

     While Mr Gim denied having any conversation with Mr Gong while he was working on the plate, Mr S Kim’s evidence in cross-examination included that he had overheard part of their conversation. Both Mr Gong and Mr Gim seeming angry, and Mr Gong upset. When Mr S Kim later asked him what had happened, Mr Gong said that Mr Gim had told him to turn over the plate, gesturing in a way that led him to understand that Mr Gong was to lift it manually. The crane was then still being used for other work and what Mr S Kim was told accorded with what he had heard.

149. [285]

     There were issues with the interpretation, but Mr S Kim’s evidence was finally not that he heard Mr Gim tell Mr Gong to flip the plate manually. But that he heard Mr Gim “push Mr Gong to hurry up”. Mr S Kim insisting that both Mr Gim and Mr Kang were then in the vicinity of Mr Gong, contrary to Mr Gim’s evidence.

150. [286]

     Mr S Kim also said that the accident resulted from Mr Gim having said “to lift, but because the boss was watching from upstairs, so hurry up, and hurry up to turn the plate over and continue working. So he just showed – so if this is a plate, because its heavy, you can’t – you can’t lift, so using shoulder to turn plate over. And because this plate was – was wobbly, and then to was falling and he was trying to hold onto them and then, the accident and then – yeah”.

151. [287]

     Accounts which Mr Gong gave after the accident accorded with this account as well as with his own evidence. On 15 April 2021, for example, his GP Mr Lam noted that Mr Gong told him that he had been pressured to flip the plate, but it did not record how. The note an orthopaedic surgeon later made recorded that Mr Gong was rushed at work when he dropped the plate.

152. [288]

     I do not accept AWI’s case that it was telling, and weighed against Mr Gong’s case, that such records do not refer to the plate falling having been the result of Mr Gim’s actions.

153. [289]

     How such evidence should be approached having been explained in Mason v Demasi [2009] NSWCA 227 at [2], where reference was made to Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 at [8]. The circumstances in which such histories have been taken, how they were obtained, the time devoted and the accuracy of any recording all having to be considered. As well as that they do not capture questions asked and are likely to reflect a summary, which may have been impacted by the health professional’s knowledge and the patient’s understanding, of the purpose of the questioning: Demasi at [2].

154. [290]

     Further, later oral evidence may reflect the function of a psychological state and consideration may have to be given to circumstances which give rise to the “eggshell skull” principle, which may encompass a vulnerable psyche: at Demasi at [4]-[5]. That is a matter which, it must be accepted, does arise for consideration in Mr Gong’s case, given the views of the psychiatric experts.

155. [291]

     It may also not be overlooked that the statements given by Mr Gong and other witnesses were prepared with the assistance of interpreters and that they were variously cross-examined about why their oral evidence did not entirely accord with their written evidence. They also gave that evidence with the assistance of interpreters and Mr Gong also had such assistance whenever he saw those who treated him. The resulting notes thus reflecting not only questions he was asked, but a translation of his answers.

156. [292]

     It must be accepted that the witnesses’ statements did not give a complete account of all that they had observed and done and that their statements reflected what they were asked about, to which they referred in cross-examination. And that at times, in some cases even during cross-examination, there were difficulties with the interpretation.

157. [293]

     Mr Bak had also been contracted by Ebenezer to work at the factory where he has worked since 2019. Mr Gong’s evidence was that he had never met Mr Bak and he did not witness the accident.

158. [294]

     Mr Bak’s evidence supported aspects of Mr Gong’s case, as I have explained, but it also contradicted some aspects of the evidence of Mr Gong and the workers he called. It including that he had never observed Mr Gim or Mr La Rosa being aggressive or angry, that he was never pushed to complete tasks quickly, or told to lift things manually. Like other workers, Mr Bak experienced it not to be uncommon to have to wait to use the crane, with the result that he would prioritise other tasks while he waited.

159. [295]

     Despite the evidence of Mr Gim and Mr Bak, I have concluded that it must be accepted that the disputed direction was given by Mr Gim.

160. [296]

     Mr Gong’s case was that despite the inadequate induction he had received, he had wanted to use the crane to flip the plate. There was no issue that it was not available when he required it, but on Mr Gim’s evidence, there was no problem with Mr Gong waiting for it to become available.

161. [297]

     A number of other workers were then also waiting for the crane, as was often the case, about which there was also no issue. In issue was whether Mr Gim then pressured Mr Gong to flip the plate manually as he attempted, having threatened him with dismissal, if he did not do so. Which Mr Gim denied.

162. [298]

     Mr Gong was extensively cross-examined about the detail of what occurred, of which he had given numerous accounts in the past. He remembered twice asking Mr Gim about using the crane for which he was waiting and Mr Gim directing him to do it manually. He could not then remember Mr Gim standing a metre away while he made the attempt, but he remembered seeing him after the accident and when Mr Gim later visited him, Mr Gim saying he had been working nearby. That being why he had said in his statement that he had stood at a distance of less than a metre closely observing him.

163. [299]

     That did not accord with the evidence of those who observed the accident and so cannot be accepted.

164. [300]

     But also necessary to consider is that in cross-examination, Mr Gim volunteered another explanation for Mr Gong’s accident. It being that Mr Gong had stepped his foot forward under the plate, which he had deliberately thrown onto himself. Mr Gim also claiming he had an unidentified witness who had also observed this. That was not AWI’s case and cannot be accepted, despite Mr Gim’s further claim that he and the other worker had reported observing this to an unidentified insurer, when it came to investigate the accident. When they had also made statements to that effect.

165. [301]

     Such statements were not tendered and that Mr Gong had deliberately harmed himself, was not AWI’s case, that making Mr Gim’s unsupported evidence difficult to accept.

166. [302]

     Implausibly, Mr Gim also claimed that he had transported the plate to where Mr Gong worked at it, without looking to see how much it weighed, despite that being recorded in the drawing he had, which he had not looked at.

167. [303]

     That seems quite improbable, given that his safe operation of the crane depended on the weight of what had to be transported.

168. [304]

     Despite what he said in his statement, in cross-examination Mr Gim also claimed not to be able to shed any light on what the plate might have weighed, then claiming that he had only been working as a boilermaker. Further, that he only took on the role of supervision at times when Mr La Rosa was busy. With the result that it was Mr La Rosa, not he, who was Mr Gong’s supervisor. That was neither party’s case.

169. [305]

     Mr Gim also said that no one at AWI had told him that when something was lifted, its precise weight should be known and that he did not tell Mr Gong what the plate weighed. He also denied telling Mr Gong to grind both sides of the plate, but he agreed that he had not directed him to use the crane to flip the plate. He also denied knowing that the crane was not available, or that Mr Gong asked for his assistance so that he could use the crane, or that he had refused his request, which he said would have been a safety issue.

170. [306]

     Mr Gim also denied telling Mr Gong to flip the plate manually, and that he had attempted to do so by threatening and bullying Mr Gong. But he agreed that his version was that he had given Mr Gong a job to do involving a heavy piece of steel and had then wandered off, having left him to his own devices.

171. [307]

     Mr Gim also agreed that he had spoken to Mr S Kim after he learned that Mr Gong was going to call evidence from him, because he was angry, but he denied then threatening or attempting to influence him. Mr Gim also denied having deliberately lied in his evidence, including about having recently introduced more Korean workers to AWI, for whom he presently worked and where that company was located.

172. [308]

     Whether Mr Gong used the crane during the short time he worked at the factory was also disputed, although not much turns on this. It undoubtedly having been flipping the plate manually, rather than using the crane, which resulted in Mr Gong being injured.

173. [309]

     It is relevant that use of the crane was not for Mr Gim to control, but Mr La Rosa. And that workers often had to wait to use it, when they might have to perform other available work, such as cleaning or tidying. It may be inferred from the evidence that workers were not always keen to turn to such tasks, which helps explain the state of the factory. That could also have driven the manual lifts workers described undertaking. That Mr Bak had not had such an experience is no reason to reject the other evidence, manual lifts being expressly contemplated by AWI’s own documents.

174. [310]

     That the unavailability of the cranes caused friction may thus be accepted. That Mr Gim was abusive and bullying at times must also be accepted, even though Mr Bak said that was not his experience, given Mr Gim’s own explanations. Ms Ryan said she never saw such conduct, but AWI’s unexplained failure to call Mr La Rosa and Mr Gim’s very unsatisfactory evidence, have helped persuade me that the evidence of the other witnesses about his abusive behaviour, must be preferred.

175. [311]

     In the result, I am satisfied that it must be found that Mr Gim did direct Mr Gong to flip the plate manually, at threat of dismissal, which the evidence established was not only within Mr Gim’s control, but a power which he exercised over Ebenezer workers.

176. [312]

     The result is that I have also been persuaded that the evidence does establish that AWI breached the duty it owed Mr Gong.

177. [313]

     The injuries he suffered were the result of the approach which it pursued. Not only to his recruitment, induction, training and supervision, but also of also the result of how it arranged the system under which he was required to work. The resulting competition for the use of its one crane having led to some lifts being undertaken manually, without a team lift. That resulting in Mr Gim giving Mr Gong the disputed direction which resulted in the plate falling and injuring Mr Gong.

178. [314]

     It was how AWI arranged its system of work, provided and supervised the work Ebenezer workers were given, which permitted Mr Gim to pursue that course, pressuring Mr Gong into attempting the unsafe manual lift of the plate which fell. Rather than arranging a team lift, if that could have safely been undertaken given the weight of the plate, which was then undoubtedly known to him and AWI. Other workers were available, waiting nearby for the crane. If a team lift was not safe, Mr Gong should have been directed to wait for the crane.

179. [315]

     The result of not having been given such directions being his unsuccessful attempt at a manual lift by himself.

180. [316]

     This reflecting that the steps AWI took did not result in Ebenezer workers understanding or being directed to comply with its manual handling policy. AWI no, in any event, having imposed any weight restriction for a manual lift.

181. [317]

     The breach of the duty AWI owed Mr Gong was the result of the way it arranged the work undertaken at its factory and the control and supervision it retained over the work it gave Ebenezer workers such as him. It resulted in Mr Gong suffering injuries which were treated in hospital that day, which were expected soon to heal, as well as the painful neurological injury and the psychological injury which he also suffered as a result.

182. [318]

     These conclusions flow from:

     1. (1)

        The nature of the grinding work Mr Gong was engaged to perform, which could have been performed by AWI employees, AWI itself employing workers to perform such work at its factory, including one native Korean speaker;

     2. (2)

        That work giving rise to a real risk of injury, given its nature and where it had to be performed at the factory and the condition in which it was kept by AWI. The factory then having only one crane in operation, frequently resulting in work being delayed while workers had to wait for the crane to become available and manual lifts also being undertaken;

     3. (3)

        The induction and instruction Mr Gong was actually given about the work he was engaged to perform, not including information about its safe manual handling policy, despite what AWI intended by its written documents;

     4. (4)

        The English manual handling policy displayed on the walls of the factory not having been in practical operation in the case of the Korean speaking Ebenezer workers such as Mr Gong, as the result of the approach Mr Gim was permitted to take;

     5. (5)

        The policy in any event being inadequate, given that it did not specify what weights could safely be lifted manually by a worker alone, or by a team lift;

     6. (6)

        The evidence establishing that Mr Gong told Mr Gim that he wanted to wait for the crane to flip the plate, but Mr Gim giving him the disputed direction to do it manually, at risk of his job if he refused; and

     7. (7)

        That according with what Mr Gim required Ebenezer workers to lift, not being restrained by Mr La Rosa to whom he reported and who supervised his work, or by the manual handling policy.

183. [319]

     It was the failure to direct Mr Gong to use the crane to flip the plate which led to the accident in which he was injured. He having complied with the disputed direction Mr Gim gave, given despite what he then knew to be the weight of the plate. Mr Gong considering that to be unsafe, but still complying because of what Mr Gim told him, his position being at risk if he did not do so.

184. [320]

     On all the evidence it having to be found:

     1. (1)

        Under AWI’s system, it was Mr La Rosa who maintained overall, practical control of all of the work performed in the factory and the use made of the crane, he supervising the work of all those on the factory floor, including all of the Ebenezer workers, with Mr Gim’s assistance;

     2. (2)

        Because AWI only had one crane, at times it was necessary for work to wait, unless it could be undertaken by other means;

     3. (3)

        That being because the crane was used to load and unload trucks, as well as moving heavy metal objects around the factory, to the place where they would be worked on by welders and grinders;

     4. (4)

        Workers at times thus had to wait and undertake other work, such as cleaning, while they waited for the crane to be available;

     5. (5)

        The result, at times, was that there was pressure for Ebenezer workers to complete their work, with the result that manual lifts which the AWI policy contemplated, were then undertaken;

     6. (6)

        Whether they could safely be undertaken depended on the weight of what had to be moved, which was known to AWI and those who operated the crane, its safe operation depending on the weight of what was to be transported, which was recorded on diagrams AWI kept;

     7. (7)

        Mr Gim gave Mr Gong the disputed direction, rather than allowing him to wait until the crane was available, or arranging a team lift;

     8. (8)

        Mr Gim succumbed to this pressure, despite considering that to be unsafe; and

     9. (9)

        AWI’s supervision of the work performed in the factory having been inadequate, this attempt was not prevented.

Requirements of the Civil Liability Act were satisfied

1. [321]

   These conclusions explain why I am also satisfied that, looking forward at the prospect of injury, as explained in Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420 at 438; [2009] HCA 48 at [31].

2. [322]

   While in final written submissions AWI contended that it could not be found that AWI’s system involved workers lifting heavy items without use of a crane, its own manual handling policy and the directions Ms Ryan claimed she gave at a toolbox meeting, to use the crane if an item could not be comfortably lifted in one hand, precludes such a conclusion being arrived at.

3. [323]

   The manual handling policy itself did not impose such a limitation and on the evidence, it not was not in practical operation in the factory.

4. [324]

   The evidence establishes that the requirements of ss 5B and 5C were satisfied because:

Causation is established

1. [325]

   Despite AWI’s case that the matters on which Mr Gong relied were largely causally impotent, I am satisfied that he has met the onus which fell upon him to establish causation as s 5E requires.

2. [326]

   Causation under s 5E of the Civil Liability Act must be approached retrospectively, by seeking to identify what happened and why: Vairy v Wyong Shire Council (2005) 223 CLR 422 at 461; [2005] HCA 62 at [124]. What has to be established on the balance of probabilities being that the failure to take precautions was a necessary condition of the occurrence of the harm, it being a statutory statement of the “but for” test of causation: Strong v Woolworths Ltd (2012) 246 CLR 182 at 192; [2012] HCA 5 at [18]-[20]. That requiring consideration of the probable course of events if the omissions had not occurred: at [32].

3. [327]

   Given his training and trade occupation, Mr Gong was undoubtedly aware of the risk of attempting to flip the plate manually, which he considered to be unsafe.

4. [328]

   But AWI’s system and how it permitted Mr Gim to induct the Ebenezer workers in in that system, as well as how it controlled and supervised the use of the crane; the work they were allocated; and the performance of their work, under Mr La Rosa’s direction and supervision, all establish that the failures which I have explained, were a necessary condition of the occurrence of the harm Mr Gong suffered.

The position of Ebenezer and Gong Engineering

1. [329]

   Contributions to a damages award by concurrent tortfeasors is an evaluative exercise: Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALR 529. Their assessment does not depend on questions of principle of fact or law, but of proportion, balance and relative emphasis. That requiring the weighing of different considerations and involving an individual choice or discretion, as to which minds may differ.

2. [330]

   Mr Gong’s case was that the evidence established that Gong Engineering had acted as little more than a labour hire company, contracting out his services to various companies such as AWI. In AWI’s case, it having complete control over the system under which he worked at its factory, the work he was given to do and how he had to do it. That was disputed.

3. [331]

   AWI relying on the non-delegable duty of care Gong Engineering owed Mr Gong requiring it to devise a safe method of operation for the performance of his work at AWI’s factory. Gong Engineering thus ought to have identified and dealt with the unsafe system Mr Gong claimed it operated. With the result that any damages he was awarded had to reflect Gong Engineering’s contribution, as well as that of Mr Gong.

4. [332]

   AWI’s case also being that unless it was found that it was liable only because of a casual act of negligence relating to Mr Gim’s direction, the apportionment of damages should be 40% to Gong Engineering and 30% to AWI. In the event of a casual act of negligence being found, it being accepted that there would have been less opportunity for Gong Engineering to have addressed the issue.

5. [333]

   The contractual arrangements between AWI, Ebenezer and Gong Engineering were not reduced to writing. Such arrangements were not well understood by the Ebenezer workers who gave evidence. But it did establish the work they undertook and how it was controlled by AWI, not Ebenezer. The evidence also establishes that Mr Gong’s work at the factory was not controlled by Gong Engineering. AWI exercising practical control over all work performed at its factory under the system which it devised, implemented and controlled.

6. [334]

   In De Martin & Gasparini Pty Ltd v Bartlett [2025] NSWCA 56 at [36], reference was made to McDonald v The Commonwealth (1945) 46 SR (NSW) 129 at 132, which was applied in QBE v Orcher; Bowcliff v Orcher [2013] NSWCA 478 at [154].

7. [335]

   It being explained in McDonald that if an employer vests in a third party complete or substantially complete control of the employee, so that the third party is entitled to direct what the employee is to do and how it is to be done, and the employee was performing services stipulated for or authorised by the third party at the time, the third party is liable. But if the control vested is only partial, so that although the third party is entitled to give directions to the employee as to what is to be done, but is not entitled to direct how it is to be done, the employer remains liable.

8. [336]

   I am satisfied that the evidence I have explained establishes that AWI had the type of complete control over Mr Gong’s work discussed in DE Martin. That also according with what was considered in Mt Owen Pty Ltd v Parkes [2023] NSWCA 77; 324 IR 34 at [49]: De Martin at [39].

9. [337]

   That evidence establishing AWI’s liability for the consequences of the disputed direction which I am satisfied that Mr Gim gave. The result being that Gong Engineering’s claimed liability has not been established.

10. [338]

    The duties which Gong Engineering owed him, as the result of the way that he and his wife arranged their affairs, may not be overlooked. But it must be accepted, as I have explained, that given how AWI and Ebenezer organised themselves and the short time that Mr Gong worked at the factory before he was injured, there was no opportunity for Gong Engineering to have acted to prevent the breach of the duty it owed to Mr Gong materialising.

11. [339]

    I am thus satisfied on the evidence I have explained and the conclusions I have reached, that it must be found that it was AWI which had primary responsibility for the breaches established and so must make a greater contribution to Mr Gong’s damages than him, reflective of his lesser contribution.

Contributory negligence

1. [340]

   Mr Gong’s case was that his position was analogous to that discussed in Davies v Adelaide Chemical & Fertiliser Company Ltd (1946) 74 CLR 541 at 551; [1946] HCA 47. It having been AWI which had devised the system of work in operation at its factory and that when he was injured, he had not been working contrary to any rule, instruction or practice it then had in operation, which would have involved negligence disentitling him to recover the damages he pursued.

2. [341]

   Mr Gong thus contended that AWI’s case could not be accepted, Mr Gim’s evidence about the disputed direction not being able to be preferred over his. But if it were accepted that he had still taken a risk with his safety, even despite the unsafe workplace culture existing within AWI’s factory, his damages would be reduced by 20%.

3. [342]

   AWI urged the conclusion that his contributory negligence be assessed to be 40%, given his responsibility as a tradesman for his own safety.

4. [343]

   I have concluded that Mr Gong’s contributory negligence must be assessed at 25%.

5. [344]

   That reflecting Mr Gong’s own responsibility for safety and his evidence that he had identified the manual lift he attempted to have been unsafe, despite the short time that he worked at the factory. That having resulted in his failure to take reasonable care to protect himself, given the considerable weight he understood the plate he attempted to lift manually weighed. As he later told others, at least 100 kg and possibly much more, up to 400 or 500 kg.

6. [345]

   On that evidence, what he attempted was so unsafe that an experienced tradesman such as he should have recognised it and not attempted a manual lift alone, despite what Mr Gim directed.

7. [346]

   But since I accept Mr Gong’s evidence about the threat he was under to follow Mr Gim’s unsafe direction, the contribution of his obviously unsafe attempt to manually flip the plate, while of significance, cannot be assessed as contributing as much as AWI contended.

8. [347]

   What he attempted not having been so obviously unsafe that other workers who observed what happened, stepped in to assist him by undertaking a team lift. Nor in Mr Gim directing them to do so or directing Mr Gong to use the crane. That has helped lead me to the conclusion that the result for which AWI urged cannot be accepted. As did AWI’s failure to disclose the actual weight of the plate, its manual handling policy not having imposed a weight limit on manual or team lifts.

9. [348]

   The proper inference being that this evidence could also not have assisted its case.

Damages

1. [349]

   I have come to the following conclusions about what remained in issue in relation to damages, the claim for past domestic assistance not having been pressed, with Mr Gong conceding that living in a small unit did not permit him to pass the statutory threshold.

2. [350]

   Mr Gong pressed claims in relation to injuries which he suffered to his neck, right arm and shoulder, lower back, right foot and ankle, as well as CRPS and psychological injury. AWI contended, in summary, that it should be found that his physical injuries had resolved; that if he had CRPS, he had not suffered from it for some time; and that he had suffered depression which would improve, it only requiring modest future treatment.

3. [351]

   There was an objection to part of Dr Dias’ report. It was received provisionally, on the basis that further submissions would be advanced in relation to its compliance with the requirements of s 79 of the Evidence Act 2005 (NSW). That objection was finally not pressed.

4. [352]

   There were also objections to referral letters which referred to opinions about conditions Mr Gong was considered to suffer, which were received on the basis that they formed part of the history which had resulted in Mr Gong being diagnosed and treated as he was, over time. Workers compensation certificates issued by Dr Lam, his GP and other GP’s reflecting their assessment that Mr Gong’s level of work capacity, over time, continued to be nil.

5. [353]

   The parties also pursued discussions about the quantum of Fox v Wood (1981) 148 CLR 438; [1981] HCA 41 and superannuation calculations, which still have to be finalised.

6. [354]

   The parties will also have to undertake various calculations in order to arrive at Mr Gong’s final damages.

7. [355]

   Mr Gong’s physical and psychological impairments now being permanent, he claimed, had to result in an assessment that he had suffered non-economic loss of 55% of a most extreme case.

8. [356]

   The nature of the injuries and damages which Mr Gong suffered were in issue. That turning, in part, on whether he has exaggerated what he has suffered and continues to suffer.

9. [357]

   AWI’s case being that he had not established his claimed loss, which is regulated by s 16 of the Civil Liability Act. It precluding an award for non-economic loss unless its severity “is at least 15 per cent of a most extreme case”. Mr Gong’s credit being highly relevant to the resolution of this issue, the result urged being that he could be awarded no more than 28% of a most extreme case.

10. [358]

    “Non-economic loss” is defined in s 3 of the Civil Liability Act to mean “any one or more of the following—

11. [359]

    Its assessment does not reflect “the exercise of a discretion, but an assessment involving matters of opinion, impression, speculation and estimation, in order to arrive at a figure which falls within a reasonable range”: White v Redding (2019) 99 NSWLR 605; [2019] NSWCA 152 at [57]-[78] and [79]-[100] discussed in Manhattan Homes Pty Limited v Burnett [2024] NSWCA 219 at [99]-[100].

12. [360]

    There, reference was also made to the consideration which may be given to having seen a plaintiff over a number of days in court and in the witness box: at [105]. An opportunity which I have had in this case and have thus taken into account in arriving at my conclusions, as well as of Mr Gong’s unexplained failure to call evidence from his wife, who it might reasonably be expected would have supported his case.

13. [361]

    But still there was finally no issue that Mr Gong has suffered more than 15% of a most extreme case. That being supported by the medical evidence, including the December 2022 report of Dr Bodel, an orthopaedic surgeon, which established that he had then been assessed as having suffered at least 15% whole person impairment, and so could recover work injury damages under the Workers Compensation Act 1987 (NSW).

14. [362]

    While not easy to resolve, especially given competing expert views, I have concluded that the injuries Mr Gong suffered as the result of the accident entitle him to an award for non-economic loss, assessed to be 40% of a most serious case.

15. [363]

    What Mr Gong finally pressed rested on injuries which he suffered in the accident to his neck, back, arm and foot, that also resulting in his ongoing neurological pain and psychiatric injury, with considerable ongoing, adverse impact on all aspects of his life.

16. [364]

    On his case, it was irrelevant whether he any longer satisfied the criteria by which complex regional pain syndrome is diagnosed, given the views which the experts arrived at about the results of the pain he still continues to suffer, and the altered gait which persists despite the very extensive treatment he has received. It not fairly having been put to him that he was exaggerating what he continued to suffer, and that no lay evidence was led to establish he was not suffering what he described.

17. [365]

    AWI’s case was that either Mr Gong suffered no physical injuries other than to his right ankle, or that they had all resolved, with the ankle injury having been minor and causing no ongoing impairment. Further, that the CRPS which he had developed was also resolved. AWI further claimed neuropathic pain was subjective, with fluctuations and inconstancies in the pain Mr Gong reported creating the real possibility of psychological overlay, which could be voluntary or involuntary.

18. [366]

    AWI thus urged that it would not be accepted that he had ongoing physical injuries, despite identified wasting and his gait problems.

19. [367]

    I have concluded that the physical injuries which Mr Gong suffered, other than to his foot, were all relatively minor and have resolved. But that he does continue to suffer from a pain condition triggered by the physical injuries he suffered, particularly to his foot, which have contributing to his measurable muscle wastage, altered gait, the pain syndrome which he continues to suffer, as well as the psychological injury from which he has not recovered.

20. [368]

    This had an ongoing adverse impact on his quality of life and ability to work.

21. [369]

    Mr Gong’s workers compensation claim was accepted in June 2021, he receiving considerable support of various kinds as a result.

22. [370]

    The challenge in assessing non-economic loss presented by the evidence flows from the fact that the physical injuries which Mr Gong suffered immediately, when the plate fell, were not extensive. They being of a kind from which a complete recovery, over some months, would ordinarily be expected.

23. [371]

    But while his physical injuries healed, Mr Gong also developed a very painful neurological condition, which resulted in him being diagnosed to be suffering Complex Regional Pain Syndrome for which he was treated. Mr Gong unsuccessfully pursued extensive rehabilitation over 18 months to two years, but has never achieved a complete recovery. He now walks with a noticeably altered gait and considerable limp, which it must be accepted is also painful.

24. [372]

    In his statements, Mr Gong explained the aftermath of his accident and how his GP treated him, with the result that he pursued scans, physiotherapy, rehabilitation, specialist treatment for his ongoing pain, injections in his shoulder and foot, to some of which he had adverse reactions, exercise physiology, as well as psychological assessment and treatment. He has had consultations with an orthopaedic surgeon and other specialists due to ongoing pain in his shoulder and back, which radiates towards his buttocks and lower limbs, as well as shooting pain in his right foot, which worsen at night.

25. [373]

    Second opinions have been sought about his foot injury from a neurosurgeon and he was referred for pain management, the overall cost of all of which was borne by the workers compensation insurer.

26. [374]

    In September 2022, Mr Gong commenced a multidisciplinary pain program at Royal North Shore Hospital, where he was evaluated at the Pain Management & Research Centre and participated in the ADAPT program. That involved physical and psychological treatment, including by a psychiatrist, who in 2022 adjusted medication Mr Gong had been taking for some time. He also received ongoing treatment by a pain specialist, but has not achieved a recovery.

27. [375]

    Mr Gong described still suffering considerable pain and discomfort, with shooting pains in his neck and nerve related symptoms affecting his ability to perform tasks involving neck movements, which resulted in headaches and soreness in his eyes. Alongside pain radiating in his right shoulder, arm and elbow, which affected his body strength and movement. This ongoing back pain posing significant challenges, making prolonged sitting uncomfortable and hampering his ability to engage in work or activities requiring exertion.

28. [376]

    He also continues to suffer pain and a cold throbbing sensation in his right foot, which makes it difficult to walk or stand for long periods. There is no issue that Mr Gong has a noticeably altered gait, consistent with the measurable wasting in his right calf, which has increased.

29. [377]

    Mr Gim has also been diagnosed to suffer a serious psychological condition, from which, despite the case AWI advanced, he does not now appear to have good prospects of recovery. The orthopaedic experts consider it also helps shed light on the pain he continues to suffer.

30. [378]

    Mr Gong has received psychological treatment since 2021, and continues having trouble sleeping, suffering nightmares, ongoing anxiety and feeling very low. Although he seemingly had a very resilient disposition before his accident, he has at times since then also suffered from suicidal ideation. Unfortunately, much of his treatment ceased when it was no longer funded by the insurer.

31. [379]

    Mr Gong’s evidence was that his injuries have had a substantial adverse impact on his daily life, making the simplest tasks challenging and time consuming, causing him to have to rely on others. Repeatedly being assessed as having no capacity for employment also had an adverse impact on him, he coming to believe that there was literally nothing he could do to earn an income, having not recovered despite the extensive treatment he has received.

32. [380]

    Mr Gong has been treated with medication for his chronic pain, physiotherapy and psychological treatment from a pain specialist and continues to see his GP. The physiotherapy has assisted his recovery, but his pain and functional limitations continue.

33. [381]

    Mr Gong said that but for the accident, he would have continued working in his trade to retirement and that the loss of his work and income cause him constant worry and anxiety for he and his family, given the financial strain he is now under and the concerns he has about his visa situation. He has been unable to identify realistic alternative occupations, having suffered a significant blow to his self-esteem, which has also adversely affected his ability to engage in social and recreational activities.

34. [382]

    He explained that his plan to support his daughter and provide her with the best education to ensure her future was now uncertain, because his own future was unknown, given the pain he continues to suffer. He has also been left feeling isolated and deprived of pleasures which were part of his ordinary life, before the accident.

35. [383]

    His ongoing pain also adversely affecting his general health, having reduced his appetite and lea to weight loss, because he struggled to maintain a routine of eating regularly. He had withdrawn from family and social engagement, avoided outings and participating in the spearfishing, golf and soccer he used to enjoy.

36. [384]

    His anger and frustration had also negatively impacted his relationship with his wife and his sleep, being plagued with distressing dreams and a sense of self-loathing. Mr Gong explained his current capacity to undertake domestic tasks, and what still caused him pain. He previously having undertaken cleaning on the weekend, which was now all done by his wife and daughter.

37. [385]

    The workers compensation insurer had provided 1.5 hours cleaning assistance weekly for 26 weeks because of his inability to perform his former domestic tasks. But despite the assistance of his wife, he was unable to maintain the upkeep of his unit, requiring the family to relocate to a smaller unit. His wife supported his self-care and tasks he formerly used to perform, as well as providing transport assistance when she accompanied him to appointments.

38. [386]

    Mr Gong described his psychological symptoms as having worsened over time. He was now depressed most of the time and anxious about his condition and future, having fled North Korea and had his dreams here destroyed by the accident. That having left him with frightening ideation which he had twice attempted to act on. Mr Gong felt life had become pointless and had left him with little joy, given his disrupted sleep and ongoing nightmares. Despite his good relationship with his child, he had been left mourning the happy life he led before the accident, when he was positive about the future, despite his past difficult life experiences.

39. [387]

    His days were now spent at home, often barely getting out of bed and socialising little. Even when friends visited to cheer him up, he was left miserable because he could not get on with his life, as they could. Mostly if he went out, he went alone and even when he plays billiards with friends, perhaps once a month, his ongoing pain made playing difficult. He is rarely able to go to the ocean anymore, because of his difficulty with walking on sand.

40. [388]

    Mr Gong has not looked for any work because there was no job he identified that he could undertake. His previous physical work was no longer available, given the lifting it involved. He can speak some English, but cannot write in English, has limited computer skills and poor concentration. He did not believe that he now had the motivation, concentration or patience to undertake any work.

41. [389]

    In his final statement, Mr Gong shed further light on his experiences in North Korea, where his father had been murdered and explained why he had not earlier revealed the abuse he had suffered there, when he had been jailed. His approach since then having been not to dwell on those experiences. He had had to speak about them to immigration officials and lawyers and had to provide a statement to the Department of Home Affairs in response to questions he was asked about those experiences. But it had not been obvious to him that these experiences were also relevant to the claim he advanced in these proceedings.

42. [390]

    Before the accident, he had never experienced nightmares, flashbacks, anxiety or depression. He had always been mentally tough and never took medication for his mental health, he having always been a happy, proud and optimistic man.

43. [391]

    Mr Gong was extensively cross-examined, but understandably did not recollect the details of the histories which he gave those who examined him over time. While those details differed, including as to the weight of the plate he told those who examined him he had dropped, the broad thrust of those histories accorded with his evidence.

44. [392]

    He was also cross-examined about his understanding of various things, including of the criteria for PTSD and why he had not disclosed the details of his experiences in North Korea to those who had examined him. He agreed that he suffered significant and serious forms of abuse there, including torture, which he had not disclosed to examining doctors.

45. [393]

    Mr Gong said he had dealt with that in his third statement, because he then had to explain his upbringing and background. But denied that he had earlier understood that was relevant to the assessment of his mental health issues, or that he would be criticised for not having disclosed those experiences. He did not consider that background to have been relevant to the psychological condition he had developed after the accident. Anyone who had come from North Korea having grown up in a similar environment.

46. [394]

    In cross-examination Mr Gong also agreed that before the accident he had worked six days a week, ten hours a day with up to three hours overtime on some days. That leaving him with time to assist with housework, and socialise after work and on weekends. He also agreed that before and after the accident, he had a constant concern about whether he would have his visa approved.

47. [395]

    He said that during treatment, he had been desperate to go to the beach to pursue spear fishing which he loved. Though he had gone once or twice, as had been recommended, he could not wear flippers due to the pain he suffered, and denied telling doctors that he had done so. He denied going fishing or spear fishing, which he wanted to return to, as well as soccer and golf. But he agreed that in November 2021, he said he had been going out to see friends every day and was sleeping better. And that a church group had taken him on a trip to Jervis Bay, where he had a good time. He denied that he had then gone diving, or told a doctor that he had.

48. [396]

    Mr Gong also agreed that he had spoken to a previous employer, who had encouraged him not to worry about returning to work, as he could start working in their office after treatment, but that treatment should be his focus. He also agreed that he came to understand that Mr Gim had admitted liability, which he told a treating doctor had made him less angry.

49. [397]

    Mr Gong also agreed that he could now shower and dress himself, but that his wife still assisted him with medications as he struggled with reading and concentration. The medication he took depending on the severity of his pain. He explained his difficulty remembering what he had told others in the past, having tried to forget about the accident, per his doctors’ recommendations, and because of medications which affected his memory.

50. [398]

    Not dwelling on his experiences previously helped protect him from psychological injury, given the very difficult life experiences he had endured in his youth, when he successfully attempted to escape from North Korea, where he was born, before his final escape.

51. [399]

    Despite his past resilience, on Mr Gong’s case, the ongoing consequences of his accident have now left him in a position where he is unlikely to recover sufficiently to permit him to resume his former trade, in which he had requalified in Australia, or indeed, ever to be able to work again.

52. [400]

    That is disputed by AWI, its psychiatric expert having formed views which have altered over time. Mr Gong being in the unusual position where an expert he had initially retained, whose opinions had supported his claims, having later been retained by AWI and then having formed opinions which supported its case.

53. [401]

    Those injuries are relevant to the assessment of his non-economic loss. It is thus convenient to explain my conclusions about Mr Gongs injuries, at this point.

54. [402]

    Given what the orthopaedic experts, Dr Shatwell and Dr Bodel agreed, it must be accepted that in the accident Mr Gong suffered various soft tissue injuries which were painful, but from which he recovered. Scans having also identified pathological changes which were not likely to have resulted from the accident, but from the heavy work he had performed over years which had never been symptomatic before the accident.

55. [403]

    The application of the Budapest protocol now used to diagnose CRPS was explained by their evidence, as well as the two types of that condition, the criteria for which were first agreed in 2012. When he pursued treatment after the accident under the care of his GP, Mr Gong was diagnosed to be suffering that condition and has been treated for it, although at the time the experts examined him, he did not satisfy all of the applicable criteria.

56. [404]

    Still the orthopaedic experts agreed that Mr Gong had suffered significant muscle wasting in his calf, measured over time at 1.2cm, then 1.8 and then 2cm. Later at 2.5 and 4cm, but the latter is likely to have been inaccurate. A recent measurement was not available, but bone scans also establish ongoing abnormality, including reduction in vascularity, that reflecting injury to his foot and ankle region.

57. [405]

    This accorded with Mr Gong’s physical presentation during the hearing when he continued to walk with a considerable limp, which he explained in his statements caused him pain, even during sleep. And also prevented him from placing too much weight on his right leg or lifting heavy weights, which he found embarrassing.

58. [406]

    Pain specialists, the orthopaedic experts also agreed, have the most experience in diagnosis and treatment of CRPS, which is a relatively rare condition typically occurring in early phases of injury. In Mr Gong’s case, he was referred by an orthopaedic surgeon to a pain specialist some four months after the accident, resulting in a diagnosis of type 1 CRPS by Dr Khor, a pain specialist, as well as by a specialist in pain medicine, Dr Standen. In cross-examination, Mr Gong said he last saw a pain specialist some months before the hearing and did not have a further appointment.

59. [407]

    The experts also agreed it was likely that the treating specialists adequately applied the applicable criteria and that Mr Gong did suffer CRPS. That likely also having been recognised by his GP Dr Lam, who had properly and promptly referred him for treatment. It being difficult in some cases to get a clear cut diagnosis, because the condition can wax and wane and be more disturbing and symptomatic at some times than others. That explaining why Mr Gong did not satisfy all the criteria, when examined over time.

60. [408]

    There are also other pain syndromes which are not CRPS. But that Mr Gong did not satisfy the criteria when Dr Shatwell saw him in 2024, for example, did not establish that he did not then suffer the condition. Dr Shatwell accepting that the most useful evidence about the condition was what Dr Khor initially found on his examination. CRPS being a condition which can improve and settle over time, but it being pertinent that even when he was examined by the experts, Mr Gong still suffered considerable ongoing pain.

61. [409]

    Dr Shatwell had a concern which Dr Bodel did not share, that the pain Mr Gong continued to display was not just the result of an ongoing neuropathic condition, but also of ‘pain behaviour’. That being a spectrum of signs displayed by a patient with a goal in mind, or an agenda or motivation of establishing a claim.

62. [410]

    This concern arose from Mr Gong, at Dr Shatwell’s examination, being unable to undertake certain movements because of his claimed pain, but later being able to demonstrate how he had attempted to lift the plate. In his evidence, Mr Gong said Dr Shatwell had been intimidating, did not appear to understand his explanations of how the accident had occurred and so gave him a plastic prop, requiring him to reenact the lift, which he had found traumatic and distressing.

63. [411]

    That concern was not shared by Dr Bodel, he not having identified any basis for considering that Mr Gong was exaggerating his ongoing pain and its consequences, on his examination. He found what Mr Gong described experiencing to be consistent with his abnormal gait and limp, which he also observed in court when Mr Gong still walked with a limp. Which DR Bodel considered was not unexpected, for someone who had suffered his type of physical injury.

64. [412]

    Dr Shatwell explained why conclusions about exaggeration were difficult to arrive at. Given how hard it was to discern what was feigned and what was real. It being natural for people to colour many types of behaviour, in order to achieve a desired outcome. That was why objective clinical signs were important, about which the experts finally agreed.

65. [413]

    The experts did not consider that Mr Gong’s calf wasting was merely consistent with lack of use, as was put to them. He used the affected limb to walk without assistance, despite having been left with an abnormal gait pattern and a limp, which appeared not to be feigned.

66. [414]

    While there had not been a recent measurement of his calf, Mr Gong’s past use of a wheelchair and crutches did not explain this wasting or his limp, because they would have affected both his limbs. So that they did not account for his ongoing altered gait. Nor did adopting a sick role, lying around and being looked after by family members, which would also result in both legs wasting, not one.

67. [415]

    The experts also agreed that it was likely that there was a psychological overlay to Mr Gong’s ongoing complaints, which seemed out of proportion to the objective pathology. But they dd not consider themselves to be qualified to assess that condition. Such pathology may be voluntary or involuntary, which they could also not determine.

68. [416]

    But Dr Shatwell did consider that the prolonged rehabilitation which Mr Gong had pursued over 18 months to two years was unsuccessful, due to his profound depression, for which he had been treated. That having resulted in his failure to rehabilitate from what had been a relatively minor injury to his foot.

69. [417]

    Dr Bodel agreed. Mr Gong had not responded well due to his depression, failing to recover despite the extensive treatment he pursued, given the ongoing neuropathic pain he also suffered. Even at the time of the hearing, though not suffering severe arthritis, it was difficult to understand his current presentation, unless there was a psychological or pain cause on top of the orthopaedic cause. The objective signs of which remained his muscle wasting and restricted range of motion.

70. [418]

    There were inconsistencies found by Dr Shatwell on his examination, including response to light touch, while being able to walk on the limb. But Dr Bodel considered this could be a genuine neuropathic type symptom, as well as a psychological response, whether genuine or feigned. That being consistent with the observations of the physiotherapist Ms Tarrant, to whose report they were taken.

71. [419]

    The experts questioned the training which enabled her to conclude that Mr Gong had displayed overt pain behaviour, while accepting that she could have observed inconsistencies in his presentation. They agreeing that the presence of pain was very difficult to diagnose, as it is subjective and cannot be quantified through any scientific measure. Account also having to be taken of negative and positive indications found on examination, wasting in Mr Gong’s case being a significant pointer.

72. [420]

    While they agreed that Mr Gong had suffered permanent injury to his foot from an orthopaedic position, despite a greater measure of agreement having earlier been arrived at in their joint report. There finally being disagreement about his prognosis. That being affected by his pain and psychiatric condition.

73. [421]

    Dr Bodel considered it to be likely that Mr Gong would be better suited to semi-sedentary work, rather than standing, walking or lifting. That reflecting his ongoing problems with his foot and the ongoing pathology, with a lift limit of 8-10 kg and having to be allowed to change position, to allow him to optimise the function of the injured area.

74. [422]

    But he remained of the view that given Mr Gong’s poor command of English, specific training and past experience in very heavy work, it was likely Mr Gong was now permanently incapacitated for his former role. While he had a skillset which would enable him to find some work, the difficulty would be finding someone prepared to accept him as an employee, given the other issues which would continue to impact his ability to work.

75. [423]

    Dr Shatwell, however, considered that Mr Gong could recover, with a graded return to work to his pre-injury activities. Initially part time, given his understanding that grinding work could be undertaken while sitting on a stool. Also, although welding work was not easy, he understood that a lot of such work was available.

76. [424]

    Dr Shatwell thus considered it likely that Mr Gong could find “his niche”, explaining how he might squat, use a stool or even sit on the ground, in order to weld. That reflecting his own experience in welding in factories and having attended building sites. He considering that Mr Gong’s profound limp and atrophied leg would not preclude that outcome, with a graded return to work and appropriate rehabilitation meaning he could return to work and earn a living in his trade.

77. [425]

    Dr Shatwell drawing an analogy with high level tennis players who had suffered an injury similar to Mr Gong, but who in his experience had been able to return to playing very high level tennis.

78. [426]

    Given all of the other evidence which has to be considered, I am satisfied that Dr Shatwell’s opinion cannot be accepted. The analogy he drew with a tennis player not being a basis on which just conclusions can be drawn about Mr Gong’s damages.

79. [427]

    The experts, the psychiatrists Dr Robertson and Dr Roberts, reached no agreement about the disorders which Mr Gong suffered as the result of the accident. Nor his prognosis. Even though the evidence established that he has been diagnosed and treated for the psychological injuries, I am satisfied that he did suffer as the result of his accident, both post-traumatic stress disorder and a depressive illness.

80. [428]

    The way in which these experts came to give evidence was unusual, given that Dr Roberts had initially been retained by Mr Gong and finally, by AWI.

81. [429]

    Dr Robertson concluded that Mr Gong had suffered both PTSD and a major depressive disorder, while Dr Roberts finally considered that he had a persistent depressive disorder with dysthymia, he never having satisfied criterion (A) of the PTSD criteria. This was disputed.

82. [430]

    In the joint report, Dr Robertson explained why he remained of the view that Mr Gong suffers both PTSD and a major depressive disorder. The pain he had suffered constituting a traumatic stressor which amounted to an “actual or threatened serious injury”, that being a component of the DSM-5 diagnostic criteria for PTSD.

83. [431]

    Dr Roberts disagreed, given his view that Mr Gong had suffered only a minor physical injury, albeit noting the orthopaedic experts’ views about the psychiatric overlay to that injury. He remaining of the view that Mr Gong had a minor depressive disorder which would diminish if his physical condition resolved. That turning on the differing view he took of how the diagnostic criteria operated, and his view that Mr Gong continuing to suffer chronic pain was incapable of fulfilling the PTSD criteria.

84. [432]

    In part the experts’ differences turned on Mr Gong’s past life experiences and his response to them.

85. [433]

    Mr Gong was born in North Korea, which he escaped after a number of failed attempts, with resulting capture, imprisonment and torture. Eventually living in South Korea where he studied to obtain his trade, before immigrating to Australia. Here he succeeded in obtaining trade qualifications as a boilermaker, a trade in which he worked successfully for some years before being injured at AWI, while he pursued residency.

86. [434]

    Mr Gong’s obvious resilience, having never developed any psychiatric problems before his accident at AWI, was agreed by the experts to be relevant. With Dr Roberts’ view being that made him less likely to have developed PTSD and Dr Robertson that, if it was demonstrably true that he had developed a neuropathic pain condition, it did involve the requisite severe physical injury, which had allowed the development of PTSD.

87. [435]

    On all of the evidence I have discussed, I am satisfied that the accident resulted in Mr Gong developing CRPS, which continues to cause him considerable ongoing pain, despite extensive treatment. As well as physical injuries which have left him with an altered gait and a pronounced limp.

88. [436]

    Dr Robertson considered that if the opinions of the orthopaedic surgeons were accepted, any psychiatric condition Mr Gong had would diminish in the event of his physical conditions resolving. But on the assumption that he did suffer a chronic pain condition, a matter about which he could not opine, he considered that Mr Gong had no current or foreseeable capacity to work in a position consistent with his skills training and experience.

89. [437]

    Dr Roberts disagreed. That reflecting his experience that even post holocaust survivors suffering PTSD did not have resulting unemployability, despite their exposure to much greater stressors than in question in Mr Gong’s case. Current worldwide statistics showing recovery from PTSD within a year in 40% of cases, with mild residual symptoms in another 30-40%.

90. [438]

    During their concurrent evidence, Dr Robertson explained that the fundamental difference between his and Dr Roberts’ evaluation was Dr Roberts’ view that Mr Gong’s accident did not meet the requirements of PTSD, as explained in the DSM. The relevant criteria being explained at 309.81 of the DSM:

91. [439]

    Dr Roberts’ opinion was that for a diagnosis of PTSD, the patient must have been exposed to either actual or threatened death, or to serious injury or sexual violence. The qualifying term “actual or threatened” only qualifying “death”. In his view, whether or not the accident constituted a threat of serious injury was not relevant, as on his reading of the criteria, the result of what Mr Gong had been exposed must have been actual serious injury or sexual violence, not merely the threat of them.

92. [440]

    Dr Robertson disagreed.

93. [441]

    While not easy to resolve, I do not consider that the PTSD criteria can be read in the way Dr Roberts understood. But even if they can, the development of the painful CRPS which Mr Gong continues to suffer, despite considerable treatment, involves not merely exposure to a serious injury, but the suffering of such an injury. That satisfying the criteria, even on his approach.

94. [442]

    The PTSD criteria are concerned with exposure to actual or threatened traumatic events in specified ways. Not only as the result of direct experience of the event, but also as the result of witnessing it, learning of the event, or by repeated or extreme exposure to aversive details of the event.

95. [443]

    It must thus be accepted that the criteria thus envisage that not only exposure to actual or threatened death, but also exposure to actual or threatened serious injury or sexual violence, can result in PTSD.

96. [444]

    In the case of repeated or extreme exposure to aversive details of a traumatic event, the examples given including repeated exposure to details of child abuse. Child abuse can not only involve children being subjected to actual serious injury or sexual violence, but also to the threat of it. Repeated exposure to which can result from having to observe and/or listen to recordings. Including when police officers, for example, may repeatedly have to view and/or listen to children being threatened with serious injury or sexual violence.

97. [445]

    Dr Robertson also did not consider that a heavy object falling on Mr Gong’s foot could satisfy the PTSD criteria. Dr Roberts disagreed, explaining that “I wouldn't like a hundred kilogram plate falling on my foot, your Honour. I would consider that very traumatic, particularly if I then developed chronic pain afterwards.”

98. [446]

    On the orthopaedic evidence it may be accepted that the falling plate did not cause Mr Gong serious physical injury to his bones or soft tissue. But the CRPS which he developed as a result established that he suffered a serious neurological injury, which still continues to cause him considerable pain.

99. [447]

    The evidence establishes that Mr Gong is still suffering from that painful neurological condition, from which his prospects of recovery do not seem high and that not long before the hearing, he was still receiving treatment for it. It must be found that this serious injury was a direct result of the accident. Mr Gong having not merely having been exposed to the threat of serious injury, when the heavy plate fell onto his foot as it did.

100. [448]

     Despite Dr Roberts’ difficulty in conceptualising the possibility of a significant psychiatric response to what was initially only relatively minor physical injury, I consider that the neurological injury which he also sustained as a result, did satisfy the disputed criteria.

101. [449]

     Why Mr Gong developed that painful condition, and why he has not recovered, is not yet known. That condition still not being well understood and AWI not having called evidence from a pain specialist to cast doubt on his diagnosis, lack of recovery, or doubtful prognosis. On the evidence, it is not apparent that Mr Gong is likely to recover from that condition, or from the muscle wasting, altered gait and limp which he has also developed as the result of the accident.

102. [450]

     The other key fundamental difference between the psychiatric experts was the relevance of Mr Gong’s undoubtedly traumatic past. Both experts explained their experience of dealing with those who had been subjected to horrific events. It was Dr Roberts’ experience that many, if not all, of those patients were still able to function at a high level and to contribute meaningfully to society, often through highly skilled professions. That appears to have been Mr Gong’s position, before the accident.

103. [451]

     Dr Robertson, whilst accepting that this could be true for some, maintained that past traumatic experiences may lead to an at-risk mental state, which would increase a person’s susceptibility to developing a psychological injury from a subsequent traumatic event. He believed Mr Gong fell into that category given his experiences, with the result that despite his earlier resilience, his past traumatic experiences indicated that he was not of normal fortitude, but had “the eggshell skull, as your discipline would have.”

104. [452]

     This lack of a normal fortitude, Dr Robertson considered, resulted in Mr Gong having suffered exacerbated psychological symptoms, which a person of normal fortitude would likely have not developed to what he had experienced. That being contributed to by the CRPS he developed. Dr Roberts disagreed, given his experience of even holocaust survivors having recovered their health.

105. [453]

     I prefer the opinions of Dr Robertson on this issue.

106. [454]

     I am unable to accept that since Mr Gong did not develop, or at least exhibit, signs of a psychiatric condition after his traumatic experiences in North Korea – including his torture, multiple escape attempts and eventual escape to South Korea before his journey to Australia – that he must necessarily be of such strong fortitude and resilience, that he was protected from suffering psychiatric injury as the result of the accident and the painful condition it led him to develop.

107. [455]

     It being entirely reasonable to accept that deep psychological trauma can be suppressed or dealt with in such a way, that it can resurface and manifest in exacerbated symptoms, if the affected person suffers another unrelated traumatic event, even of a significantly lesser kind.

108. [456]

     As Dr Robertson explained, just because a person does not exhibit signs of distress or psychological damage immediately after suffering a traumatic event, that does not mean that they must necessarily always exhibit such resilience. Or that such a traumatic experience is not capable of leaving a lasting and detrimental psychological impact, which can later be triggered by other adverse events.

109. [457]

     Dr Roberts also explained the challenge of diagnosing PTSD, which was easy to fake. While he did not conclude that this diagnosis had been established, he did accept that if the orthopaedic evidence established that Mr Gong did have a significant injury, a PTSD diagnosis would be appropriate. But that mere distress, or even chronic pain, could not establish it.

110. [458]

     Dr Roberts considered that this had to be driven by the conclusions which the pain specialists had arrived at, debilitating neuropathic pain being constitutive of physical injury and CRPS being a subset of such pain. Still Dr Roberts did not accept that such pain was an accepted cause of PTSD, although an injury which resulted in pain was.

111. [459]

     Dr Robertson considered that Mr Gong’s psychiatric injury developed because of having a large metal plate fall on his foot in Australia, he having had the experiences of being tortured and shot at in Korea. The accident had left Mr Gong suffering the chronic pain he was diagnosed with and treated for. The views of the orthopaedic experts in their joint report had not shed much light on this, because they were silent on his neuropathic pain which had no musculoskeletal explanation. CRPS developing even from very minor physical injury, evidence of which could be provided by physical examination and consequences such as wasting of musculature.

112. [460]

     Dr Roberts did not agree, taking the view that if Mr Gong had a psychiatric response to his injury, it was not PTSD, given his view of the criteria. Of which he noted unemployability was not a feature.

113. [461]

     Dr Roberts also explained that post trauma response frequently led to co-occurring conditions, including PTSD, major depression, substance abuse problems or phobic anxiety. Major depression being able to overshadow other conditions, that explaining the reported suicidal ideation.

114. [462]

     Dr Roberts still considered that it was difficult to explain the claimed significant psychiatric response in a man who had displayed such past fortitude and resilience. He considered it to be more likely that he suffered a form of depression which would dissipate, as his physical condition improved. But even if he did suffer PTSD, he would not necessarily suffer a major loss of earning capacity as a result. Dr Roberts having had experiences of family members and friends who had suffered it who were able to work, albeit in other workplaces.

115. [463]

     Dr Robertson previously had different experiences. Namely that many of those who suffered PTSD and major depression later having no work capacity, including those who had survived Pol Pot and the Vietnam war. He also did not accept that the experience of Holocaust survivors was an adequate basis on which to base views about Mr Gong’s likely outcome.

116. [464]

     Dr Roberts still disagreed, he experiencing that in the majority of cases, PTSD did not lead to unemployment, even in the case of those who had suffered physical brutality and sexual assaults.

117. [465]

     Having considered all of this evidence, I am satisfied that in arriving at a conclusion about Mr Gong’s non-economic loss, considerable account must be taken of the difference in Mr Gong’s position since the accident, despite his earlier experiences in Korea and the resilience with which he was able to respond to them. The evidence establishes that it was the accident which caused the ongoing physical issues and resulting pain syndrome which I am satisfied he continues to suffer, with unexpected, ongoing, adverse impacts on his life contributed to by the psychological conditions which he developed, was diagnosed to be suffering and treated for.

118. [466]

     Both the CRPS and the psychiatric impacts of the accident were undoubtedly unexpected, especially given his past resilience and the relatively limited injuries initially identified and treated. That helping to explain his reaction to what he came to suffer.

119. [467]

     The assessment of Mr Gong’s non-economic loss must reflect how his accident, undoubtedly of a much less significant character than what he suffered in Korea, has led to him lose, including his resilience. He having been left suffering not only ongoing, now chronic pain, but also very adverse psychiatric consequences, for which I am satisfied he is not responsible and has not feigned.

120. [468]

     Before the accident, he was a fit, healthy and active man, successfully pursuing the trade in which he had requalified in Australia, undertaking heavy work not only for AWI, but other companies for whom he successfully worked in order to successfully support his family, while he actively pursued residence here.

121. [469]

     The results of the accident included unexpected consequences, when he did not recover as expected from the relatively minor bone fracture and soft tissue injuries which the accident caused.

122. [470]

     Mr Gong developing an unexpected, painful neurological condition, which he has not revered from, despite extensive treatment. He having also been left with muscle wasting, a considerably altered gait and a limp. This also resulting in serious psychiatric injury, which he still suffers despite treatment. He now continues to experience pain, disturbed mood and sleep, nightmares, intrusive thoughts and suicidal ideation.

123. [471]

     That there has been some improvement, accords with the evidence and his presentation at the hearing. But that he will recover from all that he is still suffering and resume his prior life, was not established.

124. [472]

     What is apparent is that Mr Gong’s complete recovery is unlikely, without resolution of his neuropathic condition. It is not apparent that further treatment available to him is likely to achieve that result. Nor is a return to his former circumstances, where he was physically fit, psychologically strong, able to work in his trade to support his family and to enjoy the life and social pursuits he happily engaged in, before the accident.

125. [473]

     This is what has driven my conclusion about the extent of the non-economic loss Mr Gong has suffered.

126. [474]

     Both past and future economic loss were pressed on the basis that, as the result of the ongoing consequences of Mr Gong’s injuries, he could not work again in the course of his expected working life. He having been unable to work since the accident, having been unable to return to his trade and unlikely in future, to be able to successfully pursue other work. That is also disputed.

127. [475]

     What must be established is a diminution in earning capacity productive of a loss: Graham v Baker (1961) 106 CLR 340 at 347; [1961] HCA 48. Section 12 of the Civil Liability Act being concerned with loss of earnings and the deprivation or impairment of earning capacity. That requiring an approach according with that adopted in Malec v JC Hutton Pty Ltd, taking into account both assumptions about future earning capacity or other events which accord with Mr Gong’s most likely future circumstances, but for the injury. As well as the percentage possibility that the events might have occurred, but for the injury: Avopiling Pty Ltd v Bosevski [2018] NSWCA 146 at [128]-[137].

128. [476]

     I accept that but for the accident, Mr Gong’s most likely future earning capacity would not have been diminished as it was, given his likely circumstances, but for the injuries he suffered as the result of the accident.

129. [477]

     To establish the amount of his damages Mr Gong relied on tax invoices which reflected what Ebenezer Engineering had been paid for services he had provided in the two years before the accident, being $124,923.40 in the 2020 financial year, and up to the time of the accident in 2021 being $109,057. What he was paid by Gong Engineering being some $3,200 per fortnight. His tax return in 2021 disclosing taxable income of $80,262, supported by bank statements.

130. [478]

     But Mr Gong claimed an assessment based on earnings of $2,404.00 per week, or $125,000 gross annual income. Also relying on boilermaker market rates disclosed in the March 2024 report of Ms Tarrant and Mr Hart, which AWI led, as well as what it actually now paid for tradesman such as he, about which Mr Gim gave evidence.

131. [479]

     AWI relied on Gong Engineering’s issued tax invoices to AWI for the services Mr Gong provided, which it paid, and other records of what he was paid gross per fortnight. As well as on advice given to icare by his wife, that his pre-injury earnings were $1,494.43, she having had the assistance of an accountant. AWI contended that it would thus be concluded that at most, Mr Gong was receiving $1,500 per week at the time of the accident.

132. [480]

     Mr Gong accepted that it was appropriate for the first year of his loss to be measured against his tax return, with the result a net loss of $1,200 per week up to April 2022. But he urged that account should also be taken of Mr Gim’s evidence that the rate Ebenezer paid boilermakers had increased over time from $50 in 2021, to now $65 per hour. With the result that past economic loss would be assessed to be:

133. [481]

     Mr Gong argued that his position was analogous to that considered in Husher v Husher (1999) 197 CLR 138; [1999] HCA 47, where it was accepted that the income of a partnership between a husband and wife had come from the efforts of the husband and the exploitation of his earning capacity. As a result, the practical reality was that her earning capacity was negligible and he could have chosen to make some other arrangement, which would have resulted in the whole of the fruits of his labour being under his control and disposal. That having to be reflected in the assessment of his damages: at [7] and [21].

134. [482]

     On Mr Gong’s evidence, that must be accepted. It is evident that he had a choice about providing his services through Gong Engineering, or contracting himself. It being his earning capacity, with which damages are concerned, that may not be overlooked. That also accords with the approach adopted in cases such as George v Survey [2009] NSWSC 1348.

135. [483]

     I am satisfied that Mr Gong has established that the result of the injuries which he suffered was not only the loss of income he was being paid by Gong Engineering in 2021, but the loss of his then earning capacity, which was different. With the result that the increase over time since then in what boilermakers were being paid, reflected by what AWI actually pays tradesmen who it engages through contractors and other evidence, must be taken into account.

136. [484]

     In the result I am satisfied that Mr Gong’s approach to the assessment of past economic loss should be accepted, including as to the consequential loss of superannuation.

137. [485]

     Mr Gong accepted that the $337,502.81 he had received in weekly workers compensation benefits would have to be repaid to the insurer after the judgment was met by AWI. That calculation will have to be undertaken.

138. [486]

     Mr Gong also pursued damages for both loss of future income and superannuation on a similar basis to his past loss, relying on the opinions of Dr Dias and Dr Ting, who agreed he could not perform his former heavy work. Dr Ting considering that he had a physical capacity for only two or three hours sedentary work in selective work environments, and Dr Dias indicating that he could not return to any conceivable role on the open labour market, given his previous education, training and experience.

139. [487]

     Section 13(1) of the Civil Liability Act precludes an award for future economic loss “unless the claimant first satisfies the court that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant’s most likely future circumstances but for the injury.”.

140. [488]

     Compensation for loss of earning capacity is awarded because the diminution in an injured plaintiff's earning capacity which “is or may be productive of financial loss”: Graham v Baker at 347. In Rabay & Anor v Bristow [2005] NSWCA 199, it was explained at [73]-[74] and [79] that:

     1. (1)

        It is for the plaintiff to prove the loss for which compensation is claimed: Todorovic v Waller (1981) 150 CLR 402 at 412; [1981] HCA 72;

     2. (2)

        But the injured plaintiff need not prove what employment he or she “is not incapacitated from performing”: Rabay at [73];

     3. (3)

        It is for the defendant which contends that the plaintiff has a residual earning capacity to adduce evidence of what the plaintiff is capable of doing and what jobs are open to such a person: Luntz, Assessment of Damages for Personal Injury and Death at [1.9.20];

     4. (4)

        A history of a consistent pattern of full-time employment in work which might fairly be described as having been of a heavy manual nature may be taken into account in such an assessment: Husher v Husher (1999) 197 CLR 138 at 143; [1999] HCA 47;

     5. (5)

        The assessment of future economic loss involves reference to future or hypothetical events, by a “process of estimation of possibility”: Malec v JC Hutton Pty Ltd at 643. This is “necessarily an imprecise matter of estimation, carried out within broad parameters”: Donald v McKeown [2004] NSWCA 285 at [38];

     6. (6)

        There is a distinction between “working capacity” and “earning capacity”, those terms not being co-extensive. “Earning capacity” recognising the realities of the world of employment: South Western Sydney Local Health District v Sorbello [2017] NSWCA 201 at [72];

     7. (7)

        An individual who has a physical and mental ability to undertake certain tasks not necessarily having a significant residual earning capacity. That having to be measured by reference to the individual, when viewed with all his or her characteristics, in the labour market. Thus, a person in middle age “who has spent all his or her life in a skilled or semi-skilled occupation which, as a result of injury, is no longer available, the identification of occupations which are theoretically available is only part of the task. There having also to be a practical assessment of the likelihood of the individual obtaining employment in some such occupation”: Nominal Defendant v Livaja [2011] NSWCA 121 at [65]; and

     8. (8)

        Without evidence that the person’s condition will improve or be accommodated by future employment markets, it cannot be concluded that a theoretical residual earning capacity will be of any use in the future: Mead v Kerney [2012] NSWCA 215 at [34], applying Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13 at [24]. Evidence of the position between an accident and trial may be a good indicator of current and future earning potential.

141. [489]

     Mr Gong contended that the evidence established that these damages should be assessed on the assumption that but for the accident, he would have continued working full time as a welder/boilermaker until at least age 67. There being no evidence to warrant an adjustment under s 13(2), which requires the Court to adjust the amount of damages for future economic loss that would have been sustained on those assumptions, by reference to the percentage possibility that the events might have occurred, but for the injury.

142. [490]

     AWI relied on the approach explained in Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13 which was concerned, however, with a calculation under s 126 of the Motor Accidents Compensation Act 1999 (NSW). That being there explained to require the trier of fact achieving “satisfaction that a fair award is being made, since what is involved is not the finding of historical facts on a balance of probabilities, but the assessment of the value of a chance, it is appropriate to take into account a range of possible outcomes even though the likelihood of any particular outcome being achieved may be no more than a real possibility.”: State of New South Wales v Moss [2000] NSWCA 133 at [87].

143. [491]

     What was in issue thus included whether Mr Gong had any residual earning capacity, he contending that he did not. AWI contending that he retained a capacity for semi-sedentary work.

144. [492]

     I am satisfied that there is such work practically available to Mr Gong, was not established.

145. [493]

     Consideration of Mr Gong’s likely future circumstances must also have regard to his bridging visa status and legal ability to work. Mr Gong pursuing a review of the denial of a protection visa, with him being fearful of losing his visa status.

146. [494]

     On AWI’s approach, the uncertainties about his work, visa status and psychiatric condition having to be taken into account by adoption of a higher discount for vicissitudes, of 35%.

147. [495]

     Despite the views expressed by Dr Shatwell, who himself had some experience of the work of a welder, and those of Ms Tarrant and Mr Hart and my view, that Mr Gong’s physical state has left him with both the physical and mental capacity to perform some limited, sedentary work, I have concluded that he no longer has a significant earning capacity.

148. [496]

     That reflecting his ongoing pain and the consequences of his physical limitations, psychiatric injuries and the absence of evidence that his theoretical residual earning capacity will be of any practical use to him in the future. And according with the views of Dr Lam, the GP who has long treated him, as well as those of the other experts, as I have explained. Neither Dr Dias nor Dr Ting having been required for cross-examination and the views of Dr Robertson not being able to be preferred, for the reasons I have explained.

149. [497]

     The evidence well establishing that the heavy, skilled work that Mr Gong formerly successfully pursued in factory settings is no longer available to him, given the pain he continues to suffer and be treated for; his significantly altered gait and the limp which he has been left with and the impact which they have. As well as all of the consequences of his psychiatric condition, which the loss of his former resilience has left him with.

150. [498]

     Mr Gong’s intelligence was demonstrated by his success in obtaining trade qualifications in Australia, despite his restrictions in reading and writing English, and also by what he revealed about at one time having been offered office work, if he recovered his health. He has not been able to do so.

151. [499]

     That the restrictions which flow from both his ongoing physical and psychological limitations will be accommodated in future in the labour market, as was AWI’s case, was not established by any of the evidence. It follows that it cannot be concluded that Mr Gong’s theoretical residual earning capacity will be of any practical use to him in the future.

152. [500]

     These conclusions are driven not only by the views which the experts I have already discussed arrived at, but also by concessions made by Ms Tarrant and Mr Hart in cross-examination.

153. [501]

     Ms Tarrant and Mr Hart explained how Mr Gong’s functional capacity evaluation had been undertaken and the conclusions that had led them to. Mr Gong having travelled to his appointment by train and then walked some 400 m to their office, with his wife there completing written forms for him and he being assisted by an interpreter.

154. [502]

     The view taken by Ms Tarrant was that Mr Gong was self-limiting. She was aware that he had been diagnosed to be suffering a psychiatric condition, but not of its nature. She was then only concerned with looking at his physical capacity, which depended on what he was willing to demonstrate on her testing, which she explained.

155. [503]

     Her evidence being that Mr Gong refused to undertake nine of the eleven tasks he was asked because of his claimed pain, although conceding that he had attempted much of what she had asked him to do.

156. [504]

     Ms Tarrant’s physical examination of Mr Gong’s calf had identified his muscle atrophy, which she attributed to him having been non-weight bearing for six months while he was in a wheelchair and used crutches. That did not accord with the view taken by the orthopaedic experts, which must be preferred. But she agreed that three years post injury, he had a pronounced limp and favoured his left leg, which would have contributed to its atrophy.

157. [505]

     Ms Tarrant also explained that she was aware of the CRPS which Mr Gong had been diagnosed to be suffering, despite having made no reference to it in her report and not considering that he fit the Budapest diagnostic criteria. Although she also said that application of those criteria was outside of her scope.

158. [506]

     She also accepted that inconsistencies she identified could have been explained by Mr Gong then suffering a great deal of pain. And that he had cooperated with the waist-up testing she had conducted. But she said that he was not cooperative with her right lower limb testing, particularly of his ankle and foot, although she accepted that he had done some of what she had asked him to demonstrate.

159. [507]

     Ms Tarrant said that if it was accepted that Mr Gong’s limp was genuine, he would be fit to perform sedentary or occasionally semi-sedentary work, but that she would defer to Mr Hart.

160. [508]

     In his cross-examination Mr Hart, a vocational assessor and psychologist, explained that Mr Gong had appeared to be genuine in his testing, cooperative and that he had found no marked exaggeration or inconsistency. He had completed answers with the assistance of an interpreter and Google lens, taking photos of the assessment, although the tool Mr Hart had used had not been designed to accommodate that approach.

161. [509]

     Mr Hart also agreed that the figures he had used for his calculations were out of date, having increased since 2023. He had disagreed with Dr Ting’s assessments, despite not having any training as an occupational therapist, accepting that Dr Ting was significantly better qualified to express opinions about barriers to Mr Gong entering the workforce.

162. [510]

     Mr Hart considered that the most significant barrier to resuming work to be Mr Gong’s psychological symptoms, being aware of his diagnoses and Mr Gong having told him that his inability to work and provide for his family was causing him great distress. But he agreed that he would defer to the opinion of a vocational physician about Mr Gong’s ability to exercise any earning capacity which he had.

163. [511]

     Mr Hart had still come to the view that Mr Gong may have been exaggerating his symptoms in order to discount his potential return to work options, having become aware of Ms Tarrant’s observations. Despite himself believing Mr Gong had attempted his assessments in a genuine manner.

164. [512]

     Mr Hart also agreed that he did not have the expertise to assess either Mr Gong’s physical or psychiatric capacity and that he had “a very narrow lane to provide an opinion as to his ability to undertake reasoning”. Further, that he was in no position to express an opinion about his capacity to undertake the work of a welder or boilermaker.

165. [513]

     While he had concluded that that Mr Gong could consider security surveillance work, he understood that required a license, which he considered to be similar to some of the other licenses Mr Gong had obtained before he was injured. He also agreed that Mr Gong would not have an ability to apprehend a person, that being part of the required skillset of a security officer.

166. [514]

     Mr Hart could also not say that Mr Gong had the capacity to perform other identified work such as that of a ticket collector or a product assembler, although he believed that to be a sedentary role.

167. [515]

     Mr Gong was also assessed by Dr Dias, an occupational physician. Dr Dias concluded that Mr Gong suffers from chronic CRPS type I, chronic cervical and lumbar spine pain, stiffness and discomfort from acute musculoligamentous strains, and chronic right shoulder pain, stiffness and discomfort from an acute soft tissue injury.

168. [516]

     In 2025 Dr Dias considered Mr Gong had a poor prognosis for significant clinical improvement of his accident-related injuries, having suffered ongoing symptoms and disabilities since April 2021. They having a chronic and intractable negative impact on his occupational and domestic functioning, which were likely to be permanent, chronic and enduring.

169. [517]

     On the balance of probabilities, Dr Dias attributed Mr Gong’s persisting symptoms and diagnosed conditions to be causally attributable to his accident, he having had no prior injuries or pre-existing conditions. As a result, he was considered entirely unfit to return to the workforce, unable to conceivably perform any job role within the scope of his previous education, training and experience. Mr Gong having sustained a permanent 100% loss of earning capacity, requiring indefinite domestic assistance for the foreseeable future, as well as ongoing medical management of his symptoms.

170. [518]

     Dr Ting, an occupational therapist and vocational assessor, found Mr Gong had restricted active ranges of motion in his right ankle and toes, cervical spine, right shoulder and lumbosacral spine, alongside reduced right upper limb function. His physical symptoms being accompanied by psychological difficulties and persistent pain, that reducing his functional work capacity.

171. [519]

     As a result Dr Ting found Mr Gong to be unfit for his work. Albeit remaining able to perform sedentary work for two to three hours a day in selective environments. If his condition significantly improved, he would be able to seek part-time positions as a container filler or products assembler, roles he would be best suited to. That being hampered by his physical restrictions and psychological symptoms. He not currently demonstrating a real earning potential or ability to return to gainful employment, which was unlikely to change without significant clinical improvement.

172. [520]

     On all of this evidence, I have concluded that despite what was pursued with Mr Gong in cross-examination and with the various experts required for cross examination, it must be accepted that the preferable view is that Mr Gong no longer has a future earning capacity.

173. [521]

     But for his injuries, Mr Gong would have pursed trade work of the kind which Gong Engineering obtained for him with operators in heavy industry such as AWI. He now has no capacity to resume such work. That he will regain that capacity is now unlikely, given the time that has elapsed and the treatment which has not resulted in his recovery.

174. [522]

     It is also unlikely, that he will in future be able to pursue other paid sedentary work, even with further training. Given his ongoing pain and physical limitations, as well as the impact of his psychiatric conditions, that other suitable employment is likely to be practically available to him in the future, has not been established.

175. [523]

     Like in Sorbello and Manhattan Homes, it follows that it must be accepted that the evidence does not establish that Mr Gong has any real prospect of exploiting his limited capacity to perform some part-time work in a sedentary position in future: Manhattan Homes at [403].

176. [524]

     That he has ongoing concerns about his visa status, does not alter this outcome. I am not persuaded that s 13(2) of the Civil Liability Act requires an adjustment to the amount of Mr Gong’s damages for future economic loss because of the possibility that these events might have occurred, but for his injuries.

177. [525]

     There was also a considerable dispute about these damages. It must be resolved having regard to the central touchstone for an award of damages being that they be reasonable and fair as between the parties: Arthur Robinson (Grafton) Pty Ltd v Carter (1968) 122 CLR 649 at 656; [1986] HCA 9.

178. [526]

     Mr Gong has unsuccessfully pursued extensive treatment, funded by the workers compensation insurer, including for example, 78 physiotherapy sessions for which he was repeatedly referred, but has obtained but limited benefit from. His diligence in the pursuit of recovery thus cannot be doubted.

179. [527]

     There seemed to be no issue that the costs involved amounted to some $208,875.51, which included the cost of interpreting services he had also received at his appointments. It is apparent that this also had the support of the insurer and those who have treated him. The experts having spoken favourably about what his GP Dr Lam pursued, given his failure to recover as expected.

180. [528]

     Still AWI contended that there should be no award for any of these expenses and, in the alternative, that a buffer of only $25,000 should be awarded.

181. [529]

     I am unable to accept that this would be a reasonable or fair result.

182. [530]

     Mr Gong has been treated by his GP, specialists and others to whom he was referred for treatment, for both his physical injures, neurological pain and his psychological impairment. None of the experts criticised what he so pursued.

183. [531]

     Some of his physical injuries responded, with the result that he has not been treated by an orthopaedic specialist since 2022, despite the altered gait and limp he has been left with and the increasing wasting of his calf muscle. The ongoing neuropathic pain, which he unexpectedly developed and resulted in his diagnosis and treatment for CRPS, has also not resolved. Nor have his ongoing psychological problems.

184. [532]

     He thus continues to walk with a very altered gait, although over time with persistence, the distance he can walk has increased, so that he was able to attend appointments such as those with Ms Tarrant and Mr Hart, despite the pain he explained he was suffering when they examined him. That also reflecting his determination. That he is very frustrated and adversely affected by his situation, as a result, must also be accepted.

185. [533]

     On all of the evidence I can see no just basis for refusing to award him the claimed damages for his past out of pocket expenses.

186. [534]

     Mr Gong seeks a buffer of $150,000. I can also see no just basis for refusing such a buffer.

187. [535]

     Mr Gong has a further life expectancy of some 44 years. On his case, his past experience is a good guide to his likely future needs. His treatment has tapered off since the end of 2023, when his workers compensation insurer ceased funding it. But he continues to consult his GP on a fortnightly to monthly basis, while continuing to take medication he is prescribed.

188. [536]

     Dr Roberts was initially retained by Mr Gong. Then he advised that he would require at least 25 psychological interventions, perhaps more at intervals of two to three weeks, as well as other treatment. Having been later retained by AWI, he came to a very different view.

189. [537]

     Dr Robsertson recommended three to six sessions with a psychiatrist and 12 with a psychologist within the next year. At a cost currently of some $7,620, this would amount to some $137,897 over the course of Mr Gong’s life. That, together with the expected cost of ongoing management of his physical issues, would amount to well over $150,000.

190. [538]

     It follows that the amount pressed must be accepted as providing a fair buffer. Despite AWI contending that there should be no such award, or that these damages would be encompassed by a buffer of no more than $25,000.

191. [539]

     I am satisfied that justice could not permit the adoption of such a small buffer, which must encompass ongoing treatment by Mr Gong’s GP, the medication he continues to require, given treatment for his ongoing pain, having rejected surgery for insertion of a nerve block. That he will also require further psychiatric treatment, also having to be accepted.

192. [540]

     In the result the claimed buffer must be awarded.

193. [541]

     Mr Gong pressed these damages on the basis of commercial services for four hours per week, at rates which were not challenged. That resulting in a weekly loss of $220 per week for 43 years with application of a 5% multiplier and reduction by 15% for vicissitudes, that amounting to $175,443. It also being accepted that the Fox v Wood principle applied, with the resulting calculation explained. That was opposed.

194. [542]

     AWI disputing that this claim had a proper foundation in the evidence. He having not called his wife and himself having given but limited evidence of his pre and post injury capacity, with s 136 rulings having been made in respect of histories Mr Gong gave to those who examined him, about such care.

195. [543]

     There is no issue that Mr Gong did initially have cleaners funded by the insurer, as well as having the assistance of his wife, which on his evidence continues.

196. [544]

     The onus falls on the plaintiff to establish a reasonable need for claimed care: Allard v Jones Lang Lasalle (Vic) Pty Ltd [2014] NSWCA 325 at [72]-[73]. Mr Gong finally did not press his claim for past assistance, s 15(3) of the Civil Liability Act precluding the claim for gratuitous attendant care services unless the services are provided, or to be provided for at least six hours per week, and for a period of at least six consecutive months.

197. [545]

     Damages in respect of a need for commercial domestic assistance likely to arise in the future, after the availability of gratuitous assistance ceases, may be awarded: Miller v Galderisi [2009] NSWCA 353 at [18]; Nominal Defendant v Lane [2004] NSWCA 405 at [75]. But Mr Gong led no evidence about such matters.

198. [546]

     Mr Gong finally relied in his written submissions on Dr Ting’s opinions that he would continue to require four hours assistance at commercial rates which were not disputed. Dr Dias had considered that he would require an average of seven hours of such care per week.

199. [547]

     In Ray v Southon [2022] NSWCA 267, to which AWI referred, it was accepted that it was permissible for a doctor with relevant qualifications and experience related to rehabilitative medicine and occupational health “to convert his assessment of a patient’s functional losses into a calculation of the estimated time it might take a healthy replacement to carry out the identified tasks with the performance of which the patient has established an identified difficulty.”: at [31].

200. [548]

     AWI urged that the opinion of Mr Miszczuk, a consultant occupational therapist who was not required for cross examination, be accepted. His opinion being that such care was not reasonable or necessary, be preferred. Submitting that Mr Gong’s experts’ views could not be preferred, evidence which is based on assumptions which are incorrect or not proven, being of little value or irrelevant: Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; (1985) 59 ALJR 844.

201. [549]

     Mr Miszczuk sought to balance Mr Gong’s need for external assistance, given his physical and psychological difficulties, with what would aid his gradual recovery. He said that Mr Gong extensively relied upon his wife to perform domestic tasks, which has since extended to functional tasks, such as preparing coffee. He considered that Mr Gong had become accustomed to an unnecessary degree of assistance. As a consequence, this has reinforced poor self-efficacy, a lack of routine and confidence, avoidant behaviour and an overreliance on external support.

202. [550]

     Mr Miszczuk’s opinion was that Mr Gong’s wife not needing to bear sole responsibility for all domestic duties and he engaging in less strenuous household tasks (such as meal preparation, folding laundry, gradually progressing to standing for light, paceable tasks such as wiping benches and washing dishes) could, in fact, improve Mr Gong’s weight-bearing tolerance. However, Mr Gong’s avoidance of such tasks, poor pain perception and coping strategies had solidified his preference to remain sedentary at home, showcasing significant illness behaviour.

203. [551]

     As a result, Mr Miszczuk concluded future assistance was not reasonable or necessary in response to the accident, it risking Mr Gong’s capacity to improve function and an overreliance on external support, instead impeding recovery.

204. [552]

     Account must be taken of Mr Gong having in the past received assistance which the workers compensation insurer paid for. But the evidence Mr Gong himself gave shed limited light on his future needs. That Mr Gong’s wife was not called did not assist his case. He accepted that he had not established that the statutory requirement was satisfied in relation to past gratuitous care.

205. [553]

     Dr Ting concluded that Mr Gong would in future have a need for four hours per week at commercial rates, as well as the assistance of a handyman, understanding that he lives in an apartment but intends to buy a house. That was not supported by evidence called from Mr Gong’s wife.

206. [554]

     I am satisfied that the conclusions urged cannot rest on Dr Ting’s opinions, given that not much support for them can be found in Mr Gong’s evidence, which was not supported by evidence led from his wife or daughter, who he said now give him the support he receives. His evidence shedding little light on what he did before the accident, why he could not perform particular domestic tasks and what assistance he actually now requires, as opposed to what he receives. Particularly when account is taken of the views of Mr Miszczuk.

207. [555]

     I am thus not satisfied that Mr Gong established a basis for the damages he pursues, There also being no evidence that the support he receives is likely to cease, with the result that he will then require commercial assistance: Sampco Pty Ltd v Wurth [2015] NSWCA 117 at [101]-[105].

208. [556]

     In the result I am satisfied that Mr Gong has not established the required basis for this claimed head of damage.

Costs

1. [557]

   The usual order as to costs under the Uniform Civil Procedure Rules 2005 (NSW) is that costs follow the event. In this case, that would be an order in favour of Mr Gong.

Orders

1. [558]

   For these reasons, I enter judgment for Mr Gong.

2. [559]

   The parties are directed to:

   1. (1)

      Confer about the final calculations of Mr Gong’s damages and the terms of the final orders, including as to costs;

   2. (2)

      File proposed orders within 14 days; and

   3. (3)

      In the event of any dispute, they should also file and serve within that time, a short outline of submissions addressing what remains in issue.