Williams v Metcash Trading Ltd

MEAGHER JA: I agree with White JA.

WHITE JA: This is an appeal and cross-appeal from a judgment and orders of the District Court (Dicker SC DCJ) of 23 June 2017 (Williams v Metcash Trading Ltd [2017] NSWDC 154). The appellant, Mr Matthew Williams, brought proceedings for damages for personal injury alleged to have been sustained when working as a picker/packer at the respondent’s product distribution centre in Eastern Creek, Sydney. The respondent, Metcash Trading (“Metcash”) occupied the site and supplied retail outlets which included IGA grocery stores (Judgment [2]). Mr Williams was employed by a labour-hire company called JW Workforce Solutions Pty Ltd which traded as Tru Blue Recruitment Australia. Mr Williams alleged that he suffered injury on 30 May 2012 and again on 1 June 2012. The primary judge found that he suffered injury on 1 June 2012. Mr Williams alleged that he suffered injury on that day when lifting two boxes of Chum dog food from under a rack that was 1.4 metres high when he was bending and then turning to stand.

The primary judge found that Metcash breached its duty of care to Mr Williams in one respect, and in one respect only, namely, by placing the cartons of dog food that had to be picked in pick slots with a height of 1.4 metres (Judgment [321(e)], [323]-[324]). The primary judge also found that that breach was not causative, in the relative sense required by s 5D of the Civil Liability Act 2002 (NSW), of Mr Williams’ injury. Rather, the primary judge found that the single cause of the injury was Mr Williams’ lifting two boxes of dog food at once (Judgment [346], [349]).

Consequently, the primary judge entered judgment for the defendant. His Honour properly went on to consider other issues that would arise if his Honour’s conclusion as to causation were found to be erroneous. His Honour found that any damages to which Mr Williams would have been entitled should be reduced by 20 per cent by reason of his contributory negligence (Judgment [361]). By his amended notice of appeal, Mr Williams challenged the primary judge’s finding of 20 per cent contributory negligence.

The primary judge also concluded that damages to which the plaintiff would otherwise be entitled should be reduced by a further 20 per cent pursuant to s 151Z of the Workers Compensation Act 1987 (NSW) on the basis that Mr Williams’ employer, if sued, would have been liable for damages for failing to take reasonable care to avoid exposing him to unnecessary risks of injury and as between Metcash and Mr Williams’ employer, there should be an apportionment of liability as to 80 per cent for Metcash and 20 per cent for the employer. Although that finding was challenged in Mr Williams’ notice of appeal, neither Mr Williams nor Metcash made any submissions contesting that finding.

The primary judge made findings to permit the assessment of damages. His Honour found that Mr Williams suffered a back injury on 1 June 2012 which caused a musculo-ligamentous strain and soft tissue type injury and ongoing intermittent pain which stopped his working. His Honour found that the 1 June 2012 injury also caused modest disc bulging. He found that Mr Williams has some continuing back problems of a reasonably mild nature (Judgment [378(a)]). If this were the extent of Mr Williams’ injuries, a finding of negligence causing injury would result in an award of only modest damages. But the primary judge also found that Mr Williams has a psychiatric condition of mild to moderate severity arising from the accident, being a persistent depressive disorder with a differential diagnosis of an adjustment disorder. His Honour found that Mr Williams requires continued pain management and ongoing treatment for depression for a period of six to 12 months (Judgment [378(c)]). His Honour found that Mr Williams had a history of, and was prone to, depression (Judgment [378(d)]), but found that his current psychiatric condition arose from his back injury and that that psychiatric condition prevented his return to work to any suitable occupation until it could be appropriately managed (Judgment [380]-[381]).

The primary judge found that for the purposes of assessing non-economic loss Mr Williams suffered an injury of 28 per cent severity as a proportion of a most extreme case. Under s 16(3) of the Civil Liability Act, this would result in an award of damages for non-economic loss of 14 per cent of the maximum damages allowable, being $84,500 (Judgment [386]). His Honour made findings of fact as to Mr Williams’ likely earnings up to the date of the hearing had he not been injured and left it to the parties to calculate damages and past loss of superannuation under that head. The primary judge assessed Mr Williams’ future economic loss for loss of earning capacity at $300 per week to be allowed for 33.5 years to which the 15 per cent deduction for vicissitudes would be applied. His Honour noted that the parties were agreed on the Fox v Wood component of damages (Fox v Wood (1981) 148 CLR 438; [1981] HCA 41) and past out of pocket expenses. The primary judge said he would allow a buffer for future out of pocket expenses of $20,000. The primary judge assessed damages for future domestic and commercial assistance in the sum of $65,002.60. Damages assessed in accordance with his Honour’s findings would be reduced by 40 per cent to take account of his findings of contributory negligence and reduction on account of s 151Z of the Workers Compensation Act.

Metcash filed a cross-appeal in relation to the primary judge’s findings of a breach of duty of care and in relation to the assessment of damages. (Under Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”), r 51.17 a respondent who wishes to seek the discharge or variation of the “decision” below may file a notice of cross-appeal. A “decision” for the purposes of the rule includes an opinion or determination (UCPR r 51.2)).

In relation to the assessment of damages Metcash contended in its grounds of cross-appeal that the primary judge erred in failing to find that Mr Williams had experienced symptoms caused by soft tissue low back injury from 2009-2012, erred in failing to find that Mr Williams did not have any persisting physical injury that could cause symptoms which in turn could cause a psychiatric condition, erred in his assessment of medical evidence, erred in finding that Mr Williams suffered a back injury on 1 June 2012 which caused ongoing pain for which medical treatment was required, erred in accepting the opinion of a psychiatrist, Dr Allnut, erred in finding that Mr Williams had a persistent depressive disorder or adjustment disorder referable to the “accident” that occurred on 1 June 2012 and was referable to a low back injury, erred in finding that Mr Williams’ injuries qualified as 28 per cent of a most extreme case of injury, erred in his assessment as to Mr Williams’ fitness for employment and his calculation of future economic loss, erred in allowing damages for future out of pocket expenses, and erred in finding that Mr Williams would require future domestic assistance.

It is appropriate to consider the issues in the following order.

For the reasons which follow I have concluded that:

On 1 June 2012 Mr Williams was 26 years old. After finishing school at the end of year 10 he commenced various jobs, including as a picker/packer for grocery wholesalers. He had previously suffered pain in his lower back after a motor vehicle accident in December 2004. He injured his abdomen lifting boxes in December 2005 (Judgment [310](2), (3) and (4)). In May 2008, he accepted employment as a picker/packer with Ceva Logistics Pty Ltd (“Ceva”). The primary judge found that Mr Williams probably received training in safe manual lifting when working at Ceva. He was aware of the safe way to lift a box when he started working with Metcash in 2012 (Judgment [310](5)). In 2008 Mr Williams lost his driver’s licence for three years. The primary judge found that he suffered depression from about 2008-2009 as a result of losing his licence and the pressures that this placed on him concerning his work and domestic circumstances.

Mr Williams injured his back on two occasions whilst working at Ceva. The primary judge found that Mr Williams’ back condition had resolved by early 2010. The primary judge found that Mr Williams’ depression and psychological problems continued probably until the beginning of 2012 (Judgment [310](6)), but they were not of such a serious level to prevent his working in 2010-2011 in picking at a cold goods factory for another company, nor from commencing work with Metcash in February 2012. The primary judge also found that Mr Williams was prone to depression (Judgment [310](8)).

Before securing work with Metcash, via the labour hire firm, Mr Williams had to complete an application form and undergo a medical assessment. In answering that form Mr Williams stated that he had not ever had an injury resulting from work or made a workers’ compensation claim and that he did not then and never had suffered from back pain or back injury or depression. These statements were false. The primary judge found that Mr Williams lied in the application form in order to get work and earn money and not stay on Centrelink benefits (Judgment [310](10)).

Metcash pleaded that the content and scope of the duty of care it owed to Mr Williams was determined and circumscribed by its reliance upon representations made by him, his employer and an independent medical practitioner to the effect that he was a fit and healthy young male with no injuries or symptoms affecting his physical fitness at the time he intended to commence work for Metcash, and with no history of back injury and no history of workers’ compensation claims for back or other injuries. It pleaded that the duty of care that it owed to persons performing picking and packing duties was a duty to exercise reasonable care in the allocation of picking and packing duties to fit and healthy persons who had been deemed fit for picking and packing duties by an independent medical practitioner and by the person’s employer. It pleaded that it would not have permitted Mr Williams to perform the duties of a picker and packer if made aware of his true medical history. These contentions were not agitated on appeal.

Mr Williams was given instructions and information by his employer, Tru Blue, in relation to safe manual handling at his induction on 21 February 2012. He was also given training on safe manual handling by Metcash at about the same time. He was taken through safe manual handling techniques involving lifting only one box at a time. He was told by a Mr Steven Miller of Metcash only to lift one box of produce at a time (Judgment [310](12) and (13)). When Mr Williams started with Metcash he was told that there was a performance standard known as an “engineered standard” which the workers had to meet. The primary judge did not find that a worker faced the risk of dismissal if he or she did not meet those standards. But his Honour found that:

The primary judge found that pick rates were important and that workers understood that the prospect of full-time employment depended upon the pick rate (Judgment [310](14)). The primary judge found that pressure was placed on employees and potential employees that resulted in some workers increasing the speed of their work and picking up multiple boxes of product in an attempt to reach Metcash’s engineered standards of pick rate of 100 per cent (Judgment [310](14)).

A Mr Ernest Roberts performed the role of risk and compliance manager for Metcash (Judgment [92]). Mr Miller was a supervisor in the dry goods area of the distribution centre in 2012 (Judgment [133]). If Mr Roberts or Mr Miller or other supervisors saw workers lifting more than one box of heavier products they would stop them and tell them not to lift more than one box and instruct them in safe handling techniques (Judgment [310](13)). Nonetheless, it was common practice amongst some workers to lift more than one box of heavier items such as dog food or soft drink to keep up with or get close to the engineered standard time (Judgment [310](13)). However, the primary judge was not satisfied that supervisors were aware that this was a common practice and if they saw it they corrected it (Judgment [310](13)). The number of supervisors on duty was found by the primary judge to be reasonable (Judgment [310](13)).

The primary judge gave the following description of the procedure for picking goods:

The primary judge rejected Mr Williams’ submission that Metcash’s system of having an engineered standard with headphone instructions amounted to an unsafe system of work. His Honour found that there was no evidence that workers were directed to pick up more than one box or that they were punished or dismissed for not meeting the engineered standard. His Honour concluded:

These findings were not challenged.

Mr Williams’ injury as found by the primary judge was a musculo-ligamentous strain and soft tissue injury with ongoing intermittent pain that stopped him working (Judgment [378](a)). This gave rise to an ongoing psychiatric disorder (Judgment [378](c)).

The primary judge accepted “in general terms” Mr Williams’ evidence in relation to how the injury to him occurred (Judgment [310](21)). In particular, his Honour accepted evidence given by the plaintiff at the following parts of the transcript:

Although the primary judge made no specific finding as to twisting, he accepted the plaintiff’s evidence that he suffered his injury when he was bending and twisting to the right to put two boxes of Chum dog food onto the pallet.

The primary judge found (Judgment [310](21)):

Although Metcash was not Mr Williams’ employer, it was not disputed that as Mr Williams’ “host employer” it owed Mr Williams a duty corresponding with or at least very similar to an employer’s duty to take reasonable care to avoid exposing the worker to unnecessary risks of injury, and if there is a real risk of injury to avoid the risk by devising a method of operation for the performance of the task that eliminates the risk or by the provision of adequate safeguards (TNT Australia Pty Ltd v Christie (2003) 65 NSWLR 1; [2003] NSWCA 47; Transpacific Industrial Solutions Pty Limited v Phelps [2013] NSWCA 31 at [40]; South Sydney Junior Rugby League Club Ltd v Gazis [2016] NSWCA 8 at [116]). This is how the primary judge formulated Metcash’s duty of care and there is no issue as to the correctness of his Honour’s formulation.

The primary judge referred to the matters set out in s 5B of the Civil Liability Act and noted that the breach inquiry was to be determined prospectively by requiring an identification with some precision of what a reasonable person in the position of Metcash would do by way of response to a reasonably foreseeable risk (applying Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540; [2002] HCA 54 at [192] per Gummow and Hayne JJ). Section 5B of the Civil Liability Act provides:

The primary judge identified the relevant risk of harm as being the risk of the worker’s suffering a back injury whilst lifting heavy boxes from under 1.4 metre high shelving with related psychiatric complications (Judgment [321](a)). No challenge was made in relation to this formulation of the risk of harm.

The primary judge found (at [321]):

Metcash’s notice of cross-appeal included grounds that the primary judge erred in accepting the evidence of the appellant and Mr Bannerman in preference to the evidence of Mr Miller and Mr De Leon concerning the routine method taught to and adopted by workers to lift boxes of dog food, and that the primary judge erred in finding that it was impossible to lift a box of dog food using safe lifting and handling techniques whilst keeping the back straight. Those grounds were not pressed. Rather, Metcash relied upon the following grounds:

Although not a ground of cross-appeal Metcash also submitted that it was reasonable for it either not to have adjusted the height of the pick slot or not to have stored heavy items such as boxes of Chum dog food in the 1.4 metre high pick slot by reason of a report provided by WorkCover in response to a complaint received on 1 May 2012 from Mr Williams. He complained to WorkCover that:

A WorkCover inspector inspected the site on 16 May 2012. His report included the following:

Notwithstanding the view of the WorkCover inspector, the primary judge found that “[i]t was virtually impossible to pick the product using safe lifting and handling techniques whilst keeping the back straight.” (Judgment [310](19) quoted above). Ground 2 of Metcash’s notice of cross-appeal challenged the correctness of that finding, but that ground was not pressed. The fact that the WorkCover inspector apparently took a different view is not to the point.

The primary judge found (Judgment [301]) that a correct lifting procedure displayed in court by Dr Fairfax (using a straight back) did not appear to take into account the limited space Mr Williams had between the pick slot and the pallet jack and the need for him to remove products where lifting was required with bending and then exiting the pick slot backwards holding the box without hitting his head on the 1.4 metre ceiling. His Honour did not accept Dr Fairfax’s opinion that although there was an increased risk where the shelf height was lower, this was not a significant risk (Judgment [302]).

Metcash submitted that the primary judge failed to consider expert evidence that it contended established that raising the height of pick slots would not materially reduce any risk of back injury. But the primary judge found that the height of the pick slot of 1.4 metres made it virtually impossible for the worker to pick the product using safe lifting and handling techniques whilst keeping the back straight and this was unsafe and created unreasonable risks of injury. His Honour referred to and rejected the contrary evidence of Dr Fairfax (Judgment [310](19)). His Honour did not fail to consider that evidence.

The ergonomist, Ms Aickin, whose evidence in this respect was preferred by the primary judge, acknowledged that raising the height of the pick slot would not eliminate the risk of injury. That risk arises from the need to bend and reach forward to pick up products stowed on and beyond the first row of products on the pallet. She gave the following evidence:

Metcash submitted that it was relevant to the finding of breach that raising the height of the pick slot would only reduce, not eliminate, the risk of injury. It submitted that to conclude that the raising of the height of the pick slot would only reduce but not eliminate the risk was a factor that weighed upon an evaluation that a reasonable person would make as to whether work should be done on a cost benefit analysis, taking into account all relevant considerations, to raise the height of the pick slot. Metcash submitted that the primary judge did not consider whether it was reasonably practicable to raise the heights of the pick slots or what costs in Metcash’s operations would be entailed by such a course. The primary judge said (Judgment [304]) that:

Metcash submitted that Mr Williams had not adduced evidence to establish that placing dog food in existing 1.8m high pick slots was feasible, nor whether 1.4m high pick slots could be modified. It submitted that there was no evidence of the cost, as the primary judge acknowledged, nor was there evidence as to the feasibility of that recommendation.

The distribution centre had 46 aisles that were four metres wide and shelving on each side of the aisles to a height of nine metres or 11 metres. As product for distribution was received into the distribution centre the product was stacked on pallets that were placed in the shelves. The shelves were double bays and two pallets would fit next to each other, but only in one depth. The pick slots were at the bottom of the shelves. Once a pick slot at the bottom of the shelf was emptied software would direct an operator to use a forklift to bring stock down from the storage area that was higher up on the shelf and place it in whichever slot it needed to go into. This system was described by Mr Roberts as follows:

The weight of the boxes of products that had to be moved by physical handling ranged from one kilogram to a maximum of 20 kilograms. It was mainly advertising material that was at the 20 kilogram end of the range. A box of Chum dog food of the type that Mr Williams was picking weighed 16 kilograms. The pick slots had different heights. In his evidence in chief Mr Roberts said that the heights were either 1.2 metres, 1.4 metres or 1.8 metres from the ground up to the first shelf level. The height of the pick slot depended upon whether there was a two-tier pick or a three-tier pick. This depended on the weights of the products. As put by Mr Roberts, “... You’ll have a lighter product that’s maybe put into a three-tier pick at the maximum height of 1400.”

Metcash’s own evidence established that the height of the pick slots was variable and that the practice was for lighter products to be stored in pick slots of a height less than 1.8 metres. If Metcash wished to contend that it was not reasonably practicable for heavier items such as the Chum dog food boxes that Mr Williams was required to pick to be stored in a pick slot with a height of at least 1.8 metres, Metcash had the evidentiary onus to establish that matter.

Mr Williams was described as being six feet tall and so could not have stood wholly upright even in a 1.8 metre slot. But the risk of injury would have been reduced had the height of the pick slot been 1.8 metres rather than 1.4 metres.

Metcash also submitted that the primary judge did not make a prospective assessment of the precautions that should be taken to avoid a risk of harm. It submitted that the primary judge did not consider the evidence of Mr Roberts and of Mr Miller (an employee of Metcash in the role of “logistics supervisor automation”), that they did not observe any systemic problem with workers lifting boxes of dog food in an unsafe manner that was stored in 1.4 metre pick slots. Metcash submitted that the primary judge failed to consider that there was no evidence that prior to June 2012 any other assembler had been injured in similar circumstances. Except for Mr Williams’ report to WorkCover, there was no evidence one way or the other on that question. But the question for Metcash was whether there was a reasonably foreseeable risk of injury from the low height of the pick slot. The question was not whether Mr Miller and Mr Roberts foresaw such a risk but neglected it. The risk was plainly foreseeable and Mr Roberts’ evidence that lighter goods were stored in the lower pick slots of 1.4 metres or 1.2 metres showed that Metcash was aware of the risk of injury if heavier goods were stored in those lower slots.

The primary judge’s finding of breach of duty of care should be upheld.

Section 5D(1) of the Civil Liability Act provides:

There is no inconsistency between the primary judge’s finding that Metcash’s breach of its duty of care by requiring workers to pick heavier boxes such as the Chum dog food of 16 kilograms from the pick slots of only 1.4 metres in height was negligent by failing to protect against an increased risk of injury, and his Honour’s finding that the injury would still have occurred even if the pick slot had been at a higher height of at least 1.8 metres.

There was no dispute that it was not enough for Mr Williams to establish that had reasonable precautions been taken the risk of injury would have been reduced. What must be shown is that on the balance of probabilities had the height of the pick slot been raised to 1.8 metres (there being no evidence that it would have been reasonable to have raised the height of the pick slot more than 1.8 metres) the injury would not have occurred (Bendix Mintex Pty Ltd v Barnes (1997) 42 NSWLR 307 at 312-318; Sydney South West Area Health Service v Stamoulis [2009] NSWCA 153 at [124]; Brown v Hewson [2015] NSWCA 393 at [3], [106]-[108], [146]-[154]).

This directs attention to the mechanism of the injury.

Mr Williams suffered injury when he lifted two boxes of Chum dog food weighing approximately 32 kilograms. The primary judge found that whatever the height of the pick slot, Mr Williams would have lifted two boxes of dog food because he felt under pressure to comply with the engineered standards of a pick rate. He found that he would have suffered the same injury that he did irrespective of the height of the pick slot (Judgment [346]-[348]).

In support of that conclusion, the primary judge relied upon the evidence given by two ergonomists, Dr Fairfax and Ms Aickin, that lifting two boxes of dog food presented a serious risk of injury.

Mr Williams challenged these findings. He submitted that both he and other workers from time to time lifted two packs of dog food without suffering injury. He submitted that if the space provided was sufficient not to require significant bending or twisting, it was probable that two packs of dog food could have been lifted without injury. In establishing that probability Mr Williams relied upon his evidence, accepted by the primary judge, that he frequently lifted two packs of dog food to endeavour to keep up with the pick rate. The primary judge recorded (Judgment [54](k)) that pickers were lifting up multiple boxes of dog food or soft drink (also a heavy item) routinely. Mr Williams gave evidence that on occasions he had to lift dog food or soft drink continuously for between one and up to two hours. The primary judge found (Judgment [310](13)) that based in part of the evidence of the plaintiff it was common practice amongst some workers to lift more than one box of heavier items such as dog food or soft drink to keep up with or get close to the engineered standard time (Judgment [310](13)).

Mr Williams claimed that he had first suffered a sore back on Wednesday, 30 May 2012 when he had been picking Chum dog food from under a 1.4 metre slot, that he struggled the next day because “most of the stuff on the Thursday was bending under the racking once again to pick the stock”, and that on Friday, 1 June 2012 the same thing happened, but it was a lot more intense. The primary judge found that Mr Williams was injured when he lifted two boxes of Chum dog food on 1 June 2012. His Honour did not accept Mr Williams’ account of an injury said to have been sustained on 30 May 2012 (Judgment [310](22)). His Honour accepted that Mr Williams suffered the onset of an aching back in May 2012, but found that the injury which caused him real difficulties and caused him to cease work occurred on 1 June 2012 (Judgment [310](25)).

The primary judge found that Mr Williams was injured on 1 June 2012 when he lifted two boxes of Chum dog food (Judgment [310](22)).

As noted above (at [23]) Mr Williams’ evidence in relation to how the injury to him on 1 June 2012 occurred was that:

In light of the primary judge’s finding that the only breach of Metcash’s duty of care was requiring the worker to pick boxes of dog food from pick slots with a height of 1.4 metres rather than 1.8 metres, the question under s 5D is whether Mr Williams established on the balance of probabilities that he would not have suffered the injury he did on that day had the height of the pick slot been 1.8 metres. In relation to that question the primary judge found:

It is apparent from the above reasoning that the primary judge considered that whatever the height of the pick slot, Mr Williams would have lifted two boxes of dog food and would have suffered the same injury that he did suffer. In support of that conclusion, the primary judge referred to the evidence of Dr Fairfax and Ms Aickin that lifting two boxes of dog food presented a serious risk of injury. His Honour said that he accepted the defendant’s submissions in this regard. The defendant’s submission was that in their joint report the experts agreed that:

The joint report of Ms Aickin and Dr Fairfax included the following:

The “Risk Assessment” to which Dr Fairfax was referring was her report of 24 September 2015. In section 3.2 of that report, she expressed the opinion that repetitive lifting of two or three cartons of dog food at a time was an “extreme” risk of injury. This is far from saying that if Mr Williams had picked up two boxes of Chum dog food when he did, but the pick height had been higher so that he did not have the same degree of bending and twisting, that the same injury would have occurred.

Ms Aickin’s evidence was that the risk of injury was accentuated if Mr Williams had to maintain a stooping position to get under the shelving, particularly if he were lifting a carton from the second and third row across the pallet. Mr Williams’ evidence was that he was wriggling his way back, apparently indicating that he was taking a carton from the second or third row across the pallet.

Dr Fairfax was asked whether there was a risk of injury if Mr Williams had to lift weights of 14.4 kilograms from floor height whilst bending to get below a height of 1.5 metres. She did not answer the question. She said that the racking shelf was 1.8 metres high so there should not have been any need to bend to get below a height of 1.5 metres. The primary judge found that the racking shelf was 1.4 metres high and that is not disputed. Dr Fairfax agreed with Ms Aicken’s opinion that if the worker were required to bend forward to extract cartons from the second or third row across the pallet where the pick slot height was 1.4 metres, there was an accentuated risk of injury.

If Mr Williams were performing the same manoeuvre as he would have performed if the pick slot was not 1.4 metres but 1.8 metres, then the negligence as found would not have been causative of the injury. But because of the lower height of the pick slot, Mr Williams was bent over at a greater angle than he would have been had the pick slot been 1.8 metres high.

The primary judge noted the view of both Ms Aickin and Dr Fairfax that lifting two to three cartons of dog food at a time in the one lift created a high risk of injury or an extreme risk of injury regardless of whether two boxes were lifted at waist height, chest height or a lower height (Judgment [298(b) and (d)]). But as Mr Gross QC submitted, it does not follow from the fact that over time there is a high or extreme risk of injury from lifting two boxes at once, that Mr Williams would have injured himself when he did if the pick slot had been at a height of at least 1.8 metres.

I do not accept the basis upon which the primary judge found that Mr Williams had not established on the balance of probabilities that the same injury would not have occurred had the height of the pick slot been 1.8 metres rather than 1.4 metres. His evidence, which the primary judge accepted, was that he frequently lifted two boxes of Chum dog food or of products of approximately equivalent weight in order to maintain his pick rate.

The question under s 5D(1)(a) is whether Mr Williams would have suffered the particular injury he did suffer if the height of the pick slot was 1.8 metres and not 1.4 metres. It is not to the point that he might have suffered a similar injury on another occasion if he continued to lift two boxes of heavier items at the same time.

I take into account the fact that on his own testimony Mr Williams had experienced some back pain as a result of his lifting goods two days earlier. Nonetheless, on the balance of probabilities I would conclude that Mr Williams would not have suffered the injury which he did on 1 June 2012 if he had not been required to undertake the low bending and twisting to retrieve the two boxes of dog food as he had to do when retrieving those boxes from the 1.4 metre pick slot. Indeed, it is a reasonable inference that he would not have suffered the back pain he did suffer on the two days preceding the injury if the heavy boxes had been stored in a pick slot of at least 1.8 metres rather than the pick slot of a height of 1.4 metres where the primary judge found that it was virtually impossible to pick the product using safe lifting and handling techniques whilst keeping the back straight. Mr Williams had frequently picked two boxes of dog food or boxes of a similar weight without suffering injury. I would conclude that on the balance of probabilities, the particular injury would not have occurred had the pick slot been at a height of at least 1.8 metres.

The primary judge’s contrary conclusion is vitiated by his failing to consider whether the injury would not have occurred because with a higher pick slot Mr Williams could have used a safer method of lifting that was virtually impossible with a 1.4 metre pick slot, and thus avoided the injury. His Honour’s assumption seems to have been that the picking up of two boxes of dog food at a time by itself would have resulted in the same injury having been suffered, irrespective of the height of the pick slot. But his Honour did not explain why that would be so beyond referring to the view of the experts (Dr Fairfax and Ms Aickin) that lifting two boxes of dog food presented a serious risk of injury.

The finding that the negligence as found did not cause Mr Williams’ injury cannot be sustained.

Mr Williams relied on findings made by the primary judge that:

The primary judge found:

Mr Williams submitted that this finding was erroneous because, so it was submitted, the earlier facts found (as set out at paras [16]-[17] above) ought to have led to the conclusion that no reduction should be made for any alleged contributory negligence. Mr Williams submitted that the primary judge’s conclusion was inconsistent with a long line of established authority: Ghunaim v Bart [2004] NSWCA 28 (“Ghunaim v Bart”); Boral Resources (NSW) Pty Ltd v Watts [2005] NSWCA 191 (“Boral Resources”); Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99 (“Pollard”); J Blackwood & Son v Skilled Engineering [2008] NSWCA 142 (“J Blackwood & Son”); and Jurox Pty Ltd v Fullick [2016] NSWCA 180 (“Jurox”).

Mr Williams also submitted that the primary judge erred by not considering and giving effect to the provisions of ss 5B, 5C, 5D and 5E of the Civil Liability Act as required by s 5R. He submitted that the proper application of those provisions ought to have yielded the result that there was no contributory negligence by him, although he did not say why.

Section 5R provides:

As Basten JA explained in Council of the City of Greater Taree v Wells [2010] NSWCA 147 at [105]-[111], s 5R requires that for the purposes of considering contributory negligence, in determining the standard of care required, a plaintiff should not be treated differently from a defendant merely because the plaintiff is the person who suffered harm (Ipp Committee Report at [8.12]). As Basten JA observed at [111]:

The primary judge referred to s 5R. His Honour said:

There is no dispute that this is a correct statement.

The primary judge did not, in the context of his dealing with the contributory negligence issue, make specific reference to ss 5B-5E of the Civil Liability Act. This did not bespeak error. The primary judge was not required to identify which parts of s 5B could be relevant to the determination of the issue of contributory negligence, nor how ss 5C-5E could be relevant. Mr Williams’ submissions did not attempt such an analysis.

Contrary to Mr Williams’ submissions, the authorities he cited do not establish that the primary judge was in error in making a finding of contributory negligence. First, a finding that a plaintiff was or was not contributorily negligent is a finding of fact. Insofar as the cases cited establish a principle, it is that a plaintiff is not guilty of contributory negligence if his or her conduct amounts to mere inadvertence, thoughtlessness, inattention or misjudgment having regard to all the circumstances, including whether the employee had no real choice but to adopt an unsafe system of work (Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492 at 493-4; Ghunaim v Bart at [82]-[83]; Boral Resources at [59]-[60]; McLean v Tedman (1984) 155 CLR 306 at 315; Pollard at [15]-[16]; J Blackwood & Son at [116]; Jurox at [86]).

It was well open to the primary judge to conclude that Mr Williams’ conduct went well beyond mere inadvertence, inattention, thoughtlessness or misjudgment, but amounted to a failure to take reasonable care for his own safety. It is true that Mr Williams had complained about the system of work that required the lifting of heavy boxes from low pick heights and that system of work had not been changed. He had no choice but to pick the heavy boxes from the pick slots in which they were placed. But he did have a choice to pick only one box at a time as he had been instructed to do. He felt under pressure to maintain his pick rate, but that did not justify picking two boxes at a time from the 1.4 metre high pick slot when he was already experiencing pain or discomfort. The primary judge’s finding that Mr Williams believed he was able to continue his duties at the time does not exclude a finding of contributory negligence. It might be otherwise if a finding of contributory negligence could only be made if the employee acted with conscious or deliberate disregard of his or her safety as Murphy J had proposed in Commissioner of Railways v Ruprecht (1979) 142 CLR 563; [1979] HCA 37. But that is not the standard under s 5R.

If the finding of contributory negligence was open to the primary judge, as in my view it was, the apportionment between Metcash and Mr Williams of their respective shares in the responsibility for the injury involves a:

There is no basis to interfere with the primary judge’s assessment that Mr Williams should bear 20 per cent responsibility for the injury.

The primary judge’s finding of physical and psychiatric injury arising from the workplace accident on 1 June 2012 and his Honour’s findings as to the measure of damages arising from those injuries is summarised at [6]-[7] above. As can be seen from the summary of Metcash’s grounds of cross-appeal in relation to those findings (at [9] above), it challenges the primary judge’s findings as to the extent of Mr Williams’ physical injury. It also challenges the primary judge’s findings as to the extent of his mental harm and his Honour’s finding that it was caused by the event of 1 June 2012. Metcash’s challenge to the primary judge’s assessment of damages depends to a small extent upon its challenge to the primary judge’s findings as to the extent of Mr Williams’ physical injury arising from the lifting on 1 June 2012, but to a much greater extent upon its challenge to his Honour’s finding that Mr Williams’ mental harm was caused by the injury as so found.

The assessment is complicated by the fact that prior to 1 June 2012, Mr Williams had suffered back pain and had been diagnosed with clinical depression. The medical evidence was voluminous. The primary judge carefully summarised that evidence and drew his conclusions from it (Judgment [149]-[283], [378]-[381] and [384]). Many medical reports were tendered. The only doctor to give oral evidence was a Dr Charles Rhee who was Mr Williams’ general practitioner from 2009 until 2013. Dr Rhee was called by Metcash who sought (unsuccessfully) to establish through him that Mr Williams’ chronic back pain, as well as depression, continued from 2010 to January 2012 immediately before he commenced work with Metcash (Judgment [163]). The primary judge found that Mr Williams’ existing back problems had resolved by early 2010 (Judgment [265]) and certainly by the time he commenced work with Metcash in late February 2012 (Judgment [268]). The ground of appeal challenging that finding was not pressed.

Mr Williams saw a number of medical practitioners about his back after 1 June 2012, including a Dr Bodel. He was also examined by doctors retained by Metcash’s insurer; a Dr Maxwell and a Dr Casikar.

Mr Williams was examined by Dr Casikar on 4 February 2013. Dr Casikar, a neurosurgeon, reported that:

Dr Bodel first examined Mr Williams on 15 February 2013. Dr Bodel is an orthopaedic surgeon. He examined an MRI scan of Mr Williams’ lumbosacral spine and commented that there was “some minor bulging at the L4/5 level”. On examination he reported that Mr Williams had “mechanical back ache associated with disc pathology at the lumbosacral junction with left-sided sciatica”. He was not given an accurate medical history by Mr Williams. He reported that Mr Williams had had a “minor episode of back pain about four or five years ago”. He reported that Mr Williams had deteriorating neurological function as had been noted by a Dr New.

Dr New’s report dated 13 December 2013 (which refers to his having seen Mr Williams on 10 December 2012, suggesting the report bears the wrong year date) recorded Mr Williams’ reporting having developed quite debilitating back pain and subsequent left-sided leg pain and that he had radicular pain or sciatica. Dr New reported that the sciatica was currently in the L5 and S1 nerve root distribution. He reported that “Radiographic investigation available for review confirms a disc bulge at L5/S1”.

Dr Bodel examined Mr Williams again on 12 November 2013.

He reported that on examination:

On being asked to comment on relevant documentation he said:

Dr Bodel also stated in his report of 12 November 2013 that Mr Williams’ clinical condition was consistent with “... ongoing pathology associated with the disc injury at the lumbosacral junction” and that he had “continuing mechanical backache and left leg pain”. His conclusion was that Mr Williams “... has mechanical backache associated with disc pathology at the lumbosacral junction with left sided sciatica and radiculopathy”.

Mr Williams was again examined by Dr Casikar on 7 April 2014 for the purposes of an independent medical examination in regards to his compensation claim.

Dr Casikar reported that on examination Mr Williams was unable to walk on his heels and toe, but that movements of the back were within normal limits and his gait was normal. He said that Mr Williams’ symptoms were non-verifiable on neurological examination. He believed that Mr Williams had “pain syndrome” that was unrelated to his employment. In amplification of this he said:

When asked whether any further treatment or surgery was indicated, Dr Casikar said:

On 2 October 2014 Mr Williams was examined by Dr Maxwell, an orthopaedic and spinal surgeon. Dr Maxwell reported that:

Dr Maxwell opined that the cause of Mr Williams’ back pain was a somatic manifestation of underlying depression. He did not consider that Mr Williams had any specific back injury.

Dr Bodel saw Mr Williams again on 15 May 2015 and provided a report of 20 May 2015 in respect of that examination. Dr Bodel had been provided with Dr Casikar’s report of 7 April 2014. He made no reference to Dr Maxwell’s report of 2 October 2014.

In his report of 20 May 2015, Dr Bodel referred to an MRI scan conducted on 1 December 2014. He said of that scan that it showed “... some minor central and left-sided disc pathology at the L4/5 and L5/S1 levels.”

He continued:

When later asked about his diagnosis, he said:

Dr Bodel later commented:

Dr Casikar provided a further report on 12 January 2016. He said:

Dr Casikar adhered to his view that the workplace injury of 2012 had completely resolved. He said:

Dr Casikar also said:

He concluded that Mr Williams did not require any form of treatment, except management of his depression by a psychologist or psychiatrist.

Dr Maxwell also provided a further report on 27 January 2016 following his examination of Mr Williams on 25 January 2016. He stated that the opinion he provided was based entirely upon an evaluation of objective findings identified on 25 January 2016. Mr Williams had told Dr Maxwell that if he sat for more than 15 minutes he felt he had to get up and stretch to keep his left leg moving. He told Dr Maxwell that when he got up in the morning at about 7.00am he did 15 minutes of exercises that made his left leg tingle so that he had to stop. He said that the tingling involved the whole of his leg below the knee. Dr Maxwell reported that Mr Williams told him that one night he scratched his back and then found that the whole of the left side of his lumbar region was “dead”, just above the belt line. He said that it settled down and had not been noticed again. Dr Maxwell recorded that Mr Williams told him that he experienced pain down a line from the left side of his back into his left buttock and from there down the back of his left thigh and across his front knee to the front of his calf and into the little toe. After examining Mr Williams, Dr Maxwell reported that:

Dr Maxwell referred to Dr Bodel’s report of 20 May 2015. He commented on that report as follows:

Dr Maxwell concluded that:

On 7 October 2016 Drs Maxwell, Bodel and Casikar met in conclave to identify their areas of agreement or disagreement, and to summarise their reasons where they disagreed. They answered a series of questions. The report of their meeting includes the following:

Later in their report the doctors again summarised their views in relation to whether or not there was evidence of radiculopathy. The report states:

These doctors’ reports and their opinions summarised in the report of their conclave raised the real possibility that Mr Williams was consciously exaggerating his symptoms and pain, although Dr Casikar’s report of 7 April 2014 in which he opined that Mr Williams’ symptoms were entirely due to his “pain syndrome”, Dr Maxwell’s opinion that the cause of Mr Williams’ back pain was a somatic manifestation of underlying depression, and the unanimous opinion of Drs Maxwell, Casikar and Bodel that pain is entirely subjective and cannot be objectively measured, does not indicate that the pain reported by Mr Williams was not real.

The primary judge had considerable reservations as to the reliability of Mr Williams’ evidence (Judgment [62]). His Honour had no such reservations about the evidence given by his de facto partner, Ms Nafsika Stylianou. His Honour found her to be completely frank and honest (Judgment [77] and [274]). She gave evidence that Mr Williams appeared to be in pain frequently and often had to stop activities and lie down and never had a proper night’s sleep. She said that his condition varied from day to day, but every day was difficult for him to some degree and on occasions, she had to assist him in activities of daily living if he was in a lot of pain. She did all the domestic duties around the house, apart from Mr Williams doing a minimal amount of sweeping, loading the top dishwasher and a modest amount of food preparation (Judgment [67]). Ms Stylianou did not have a driver’s licence and had to change jobs as Mr Williams was not always able to pick her up from the railway station due to his pain and the fact that he was frequently resting. He was unable to sit in a cinema. He had on occasions attempted to mow the lawn but usually could not complete the task. Mr Williams could not load the clothes dryer because it was too low (Judgment [67]-[75]).

The primary judge found on the basis of Ms Stylianou’s evidence that:

The primary judge accepted that there was not an objective basis for problems with Mr Williams’ lower back. His Honour found:

His Honour found that the plaintiff suffered a back injury on 1 June 2012 that caused modest disc bulging (Judgment [378(a)]). However, he accepted that the disc bulging was not significant because it was not large enough to cause any nerve root impingement and was within a normal variance (Judgment [310(27)(m)]).

The primary judge also found that Mr Williams had a relatively mild back injury “with signs of intermittent and mild L5 radiculopathy in accordance with Dr Bodel’s opinion up to 2015” (Judgment [283]). Metcash submitted that the primary judge’s finding that Mr Williams’ problems in his back did not involve an injury to the L5 nerve root (Judgment [378(a)])) is inconsistent with his Honour’s finding that there were signs of intermittent and mild L5 radiculopathy. That is not self-evident. Apparently, Dr Bodel did not consider there was any inconsistency between his findings (that he noted had been made 18 months before the conclave) that Mr Williams may have had mild L5 radicular symptoms, may have sustained an injury to the L5 nerve root and did have some clinical signs of L5 radiculopathy on the one hand, and the unanimous opinion that there was no objective evidence of “L5 nerve root impingement” which was a reference to the nerve root not being impinged by disc bulges (answers to questions 11 and 13) on the other. There was no medical evidence that the latter excluded some other impairment of the nerve in the spine causing radicular pain to radiate from the back down the left leg.

Metcash challenged the finding that Mr Williams’ injury included disc bulging and challenged the primary judge’s finding that Mr Williams had some intermittent back pain after the accident (Judgment [310(27)(r)]). Metcash submitted that these findings were based upon a finding that there was a radiological difference between reports concerning Mr Williams’ back before and after the accident. It submitted that the primary judge was not entitled to make a finding regarding comparisons between radiology reports without expert opinion or to make such a finding that was incompatible with what was said to be the unanimous opinion of the doctors.

The primary judge did not make a comparison between radiology reports without expert opinion to assist him. Contrary to Metcash’s submissions he did not compare x-rays taken before and after the incident to draw conclusions about Mr Williams’ having suffered an injury as a result of the lifting on 1 June 2012. Rather, his Honour referred to radiological reports before and after the accident. On 11 March 2009, a Dr Kenneth Cooke, radiologist, reported on an examination made on 3 March 2009 on the results of an x-ray and CT scan of Mr Williams’ lumbar spine. They were normal. Dr Cooke reported that there was no sign of disc herniation or bulging at any level. On 26 March 2009, a Dr O’Rourke, radiologist, reported that an MRI of the lumbosacral spine carried out on 20 March 2009 was normal and there was “no focal disc protrusion or diffuse disc bulge at any level.” By contrast, Dr Charles New, an orthopaedic and spinal surgeon, reported on 13 December 2013 (semble 13 December 2012) that “radiographic investigation available for review confirms a disc bulge at L5/S1” and as noted above, Dr Bodel reported on 26 August 2014 that a CT scan carried out on 16 July 2012 showed evidence of definite disc pathology principally at the L4/5 level ([see [106] above]).

The fact that the disc bulge did not impinge on the nerve root did not mean that the primary judge was in error in finding that it was caused by the events of 1 June 2012.

But in any event, this submission is a red herring. The primary judge accepted that Mr Williams’ pain was not caused by the bulging of the disc and that his ongoing pain was not caused by ongoing physical injury to his back.

As noted above, both Dr Casikar and Dr Maxwell were of the view that Mr Williams’ pain syndrome was not the consequence of a work-related injury, but his underlying depression. Neither is a psychiatrist. That opinion would appear to lie outside their areas of expertise. The primary judge dealt with the issue of psychiatric injury as follows:

Metcash submitted that because the primary judge found there was only a musculo-ligamentous injury of a relatively mild nature, there was no basis for a finding that the injury was causing ongoing symptoms and that the primary judge erred in accepting the opinion of Dr Allnutt which, so it was submitted, was said to be predicated upon the assumption that Mr Williams had sustained a back injury that caused chronic low back pain. Metcash also says that Dr Allnutt relied upon an incorrect and misleading medical history.

Mr Williams was referred to examination by a Dr Ben Teoh, a psychiatrist, by Metcash’s workers’ compensation insurer. Dr Teoh examined Mr Williams on 4 April 2013 and provided a report to the insurer on 15 April 2013. Dr Teoh is a WorkCover accredited impairment assessor.

Dr Teoh took a history from Mr Williams. Mr Williams reported that he sustained an injury at work on 1 June 2012 lifting boxes of dog food and experienced acute pain affecting his lower back. He told Dr Teoh that the pain was “massive”. He consulted a doctor. He thought he had muscular strain and returned to work. Dr Teoh then reported:

Dr Teoh reported that Mr Williams was preoccupied with physical pain and disability and reported emotional distress and social inactivity and difficulty with sleeping. There was no evidence of psychotic symptoms or suicidal ideation. His cognitive functions were intact. Dr Teoh was asked to provide a diagnosis according to criteria outlined in DSM-IV (including causation). His opinion was:

Dr Teoh also said that it was his opinion that Mr Williams was not suffering from a recognisable psychiatric diagnosis or mental condition. Mr Williams had described some emotional distress as a result of his physical pain and disability, but those symptoms were not indicative of a psychiatric disorder.

Dr Allnutt is a psychiatrist. He provided a report on 2 March 2015 following a clinical evaluation of Mr Williams on 27 February 2015. Under the heading “the Index Injury” Dr Allnutt recorded a history. It is not clear how much of this was the result of information conveyed by Mr Williams or how much might have been conveyed by Dr Allnutt’s letter of instructions of 27 February 2015. The latter was not included in the appeal books. Presumably, it was not tendered.

Dr Allnutt reported that the index injury occurred on 29 May and 1 June 2012. At the time of the injury, Mr Williams was not taking medication and was not seeing a mental health professional. He recorded that Mr Williams had had prior contact with a mental health professional when he was aged about 23 or 24 when he was diagnosed with depression. He recorded that at about that time (viz. about 2009 or 2010) he also attempted suicide. The trigger for the depression was his losing his licence and becoming bankrupt. He had a lifelong interest in cars. He was unaware of any further episodes of depression until after the injury. There were no significant deaths, losses, disappointments, financial, legal or social difficulties other than three years prior to the injury when he lost his licence. At the time of the injury, he had a reasonable mood and good sleep, appetite, energy, motivation and concentration. He maintained his interests and could find pleasure in activities and was not experiencing suicidal thoughts. He was not dependent on anyone. He attended to his grooming and ate regular meals. He went out socially and could travel to familiar and unfamiliar places unaccompanied. He had a circle of friends and there were no problems with his concentration.

Mr Williams gave a more detailed description of suffering a sharp stabbing pain down his back on 29 May 2012 and again on 1 June 2012. Dr Allnutt said:

Dr Allnutt then under the heading “Current Clinical Issues” described in detail Mr Williams’ report of his symptoms and how they affected him. His diagnosis was that:

Dr Allnutt said that:

Dr Teoh examined Mr Williams again on 9 February 2016. On 15 February 2016, he provided a further report. Dr Teoh said that Mr Williams’ presentation was not consistent with a psychiatric diagnosis. Rather, he had persistent emotional distress as a result of chronic pain and physical disability. Mr Williams told Dr Teoh that he did not need psychiatric treatment. He was angry that he had to talk about the injury and did not want to discuss it. He had not been able to see his future because of his lack of recovery from his physical condition. Dr Teoh commented that Mr Williams “did not elaborate the symptoms that he related to Dr Allnutt. The history that Dr Allnutt obtained is not consistent with what I had obtained in my interview.”

The history Dr Allnutt obtained was, however, substantially corroborated by Ms Stylianou’s evidence.

Dr Allnutt and Dr Teoh conducted a conclave by telephone on 2 November 2016. They provided a joint report answering specific questions asked of them.

Both Dr Allnutt and Dr Teoh agreed that Mr Williams had a vulnerability to depression based on his pre-injury history. They were unable to provide an opinion as to the effects of that condition because Mr Williams denied symptoms.

They were asked whether on the balance of probabilities the 1 June 2012 incident had an impact on Mr Williams’ pre-accident depression. They responded as follows:

The report from the conclave also included the following:

As observed above neither Dr Allnutt nor Dr Teoh (nor Drs Bodel, Casikar or Maxwell) gave oral evidence. Evidently, Metcash did not seek further opinions from Dr Teoh on matters which he considered to be irrelevant because in his view Mr Williams did not suffer from a recognised psychiatric illness.

Mr Williams was not suing for pure mental harm where both at common law and under s 31 of the Civil Liability Act the harm would have to consist of a recognised psychiatric illness to be compensable. Rather, he was suing for mental harm said to be a consequence of physical injury. At common law the distress or other mental trauma that were the consequence of physical injury were compensable irrespective of whether or not they amounted to a recognised psychiatric illness. That position is now modified by s 33 of the Civil Liability Act which provides that an award of damages for economic loss for consequential mental harm resulting from negligence cannot be made unless the harm consists of a recognised psychiatric illness. Damages for non-economic loss for consequential mental harm can be awarded whether or not the consequential mental harm amounts to a recognised psychiatric illness.

Neither party mentioned s 32 of the Civil Liability Act in the hearing before the primary judge, nor on appeal. Section 32 altered the common law by imposing limits on the existence of a duty of care not to cause a plaintiff mental harm. It provides in substance that a defendant does not owe a duty of care to a plaintiff to take care not to cause the plaintiff mental harm unless the defendant ought to have foreseen that a person of a normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken, reflecting the recommendation made in the Ipp Report (Commonwealth of Australia, Review of the Law of Negligence: Final Report, (August 2002) at [9.37]). Subsection 32(3) provides that in respect of consequential mental harm, the circumstances of the case include the personal injury suffered by the plaintiff. Where the harm the plaintiff alleges he or she suffered is both physical injury and consequential mental harm, the duty of care to avoid consequential mental harm must be separately analysed. (Optus Administration Pty Limited v Wright [2017] NSWCA 21 at [35]-[36]; Hollier v Sutcliffe [2010] NSWSC 279 at [216]-[217]).

The primary judge was not asked to make any finding and did not make any finding as to whether it was foreseeable that a plaintiff of normal fortitude might suffer a recognised psychiatric illness in the circumstances of the case.

It was not a ground of cross-appeal, nor did Metcash submit, that the primary judge ought to have found that Mr Williams did not suffer a recognised psychiatric illness.

It is true that Dr Allnutt assumed a physical injury on both 29 May and 1 June 2012, whereas the primary judge found only an injury suffered on 1 June 2012, and that Dr Allnutt assumed a more serious physical injury than was found. But that does not mean that Dr Allnutt’s opinion should be rejected. To the contrary, once it is accepted that Mr Williams’ pain is real and not feigned, but is not explained by the physical injury to his back, then it can be concluded that it is psychogenic (to use Dr Casikar’s terminology).

The primary judge found that Mr Williams had suffered a psychiatric injury. The primary judge identified the injury as pain syndrome. The conclusion that he suffered from such a syndrome was supported not only by the evidence of Dr Allnutt and Ms Stylianou, but also by the evidence of Dr Casikar and Dr Maxwell. The critical question was whether that condition was caused or materially contributed to by the relatively mild physical injury sustained by Mr Williams on 1 June 2012. The only witness with relevant qualifications to answer that question was Dr Allnutt, and his answer was in the affirmative. The primary judge did not err in accepting his opinion.

Metcash’s challenge to the primary judge’s assessment of damages for non-economic loss, past and future out-of-pocket expenses, past loss of earnings and superannuation loss, future impairment of earning capacity, and past gratuitous care and future commercial care was predicated upon its successfully challenging the primary judge’s findings that Mr Williams had suffered a significant psychiatric illness arising out of injury to his back caused by the lifting on 1 June 2012. As that challenge fails, it is unnecessary to address the primary judge’s reasons and conclusions in respect of damages.

The Court was informed that the parties did confer in respect of the appropriate assessment of damages if damages were to be calculated in accordance with the primary judge’s reasons and that those items had been substantially agreed, although there were still some items to be calculated. I do not know what matters might be in dispute. The calculation of damages as proposed by the solicitors for Metcash, if made in accordance with the primary judge’s reasons, totalled $659,307.52 before deductions of 20 per cent for contributory negligence and 20 per cent pursuant to s 151Z(2) of the Workers Compensation Act 1987 (NSW). There is an apparent error in respect of the latter deduction in that it has been applied to all of the heads of damages, including non-economic loss, whereas Mr Williams would not be entitled to recover damages for non-economic loss had he sued his employer (Workers Compensation Act, s 151G).

If the parties cannot agree on the outstanding items they should provide short submissions in writing in relation to those items. If no further findings of fact need be made this Court should be in as good a position as the primary judge to resolve whatever might be the outstanding issues.

The orders of 23 June 2017 giving judgment for the defendant and ordering the plaintiff to pay the defendant’s costs should be set aside. Instead, judgment should be entered for the plaintiff in an amount to be calculated in accordance with the reasons for judgment of the primary judge at [383]-[414] of his Honour’s judgment, noting that the reduction of 20 per cent on account of s 151Z of the Workers Compensation Act is to be calculated having regard both to the percentage of responsibility of Mr Williams’ employer as found by the primary judge and having regard to the limitations in the Workers Compensation Act on the quantum of damages that would have been payable by Mr Williams’ employer had it been sued.

I propose the following orders:

SIMPSON AJA: I agree with White JA.