Small v K & R Fabrications (W’Gong) Pty Ltd

1. [1]

   HER HONOUR: By a further amended statement of claim filed within days of the hearing, the plaintiff brings proceedings in negligence for an injury to his lumbar spine he claims he sustained when a steel beam he was holding whilst it was being cut with oxyacetylene equipment by a boilermaker employed by the defendant dropped unexpectedly whilst he was working at the premises of BlueScope Steel (“BlueScope”) at Port Kembla on 23 January 2007.

The cases in summary

1. [2]

   On 23 January 2007 the plaintiff was engaged by the defendant, K and R Fabrications Wollongong Pty Ltd, a steel fabrications company under labour hire through Allmen Industrial Services Pty Ltd (“Allmens”), as a member of a work crew to work the night shift at BlueScope’s premises. The defendant was under contract to BlueScope to undertake structural repairs and general maintenance at the steelworks as required by BlueScope from time to time.

2. [3]

   The plaintiff submitted that I would accept his evidence as to the circumstances in which he sustained his back injury as both credible and reliable, and that his immediate report of injury to the defendant reinforces his credibility.

3. [4]

   The plaintiff submitted that even were I not persuaded that the injury to his back was probably sustained in the particular and detailed circumstances he described in his evidence, whether due to his mistaken recollection of certain features of the system of work in which he was engaged and/or error in his reconstruction of the particular mechanism within that system of work which caused his injury, I would nonetheless be satisfied that he was injured as a result of a breach of the defendant’s duty of care as particularised in the further amended statement of claim. The plaintiff further submitted that I would be satisfied that the particular risk of harm was both foreseeable and not insignificant (as provided for in ss 5B(1)(a) and (b) of the Civil Liability Act 2002 (NSW)) and that there was no legal impediment to his recovery of damages, the quantum of which has been agreed, subject to the issue of contributory negligence.

4. [5]

   The defendant accepted that it owed the plaintiff a duty of care as a member of a work crew under labour hire, and that the nature of the duty and its scope were analogous to the duty an employer owes an employee, but that in order for its liability in negligence to be determined in accordance with ss 5B, 5C, 5D and 5E of the Civil Liability Act, the Court would first need to be satisfied that the plaintiff’s injury was sustained in the circumstances and by the mechanism he described in his evidence (or that it was probably sustained in that way). Without that primary finding of fact the defendant submitted that the risk of harm against which its liability in negligence falls to be assessed under s 5B(1) of the Civil Liability Act cannot be meaningfully addressed.

5. [6]

   The defendant accepted that the plaintiff did injure his back whilst undertaking work assigned to him as a trades assistant at some time during a 12-hour night shift which commenced at 7pm at the steelworks on 23 January 2007, but that I would reject the plaintiff’s evidence as to the circumstances in which the injury was sustained as internally inconsistent, generally improbable and in other respects impossible of acceptance.

6. [7]

   The defendant further submitted that even were I satisfied that the plaintiff’s back injury was sustained as he claims, or if not precisely in accordance with that mechanism, that what he described in his evidence was sufficiently supported by other evidence for it to be the probable cause of the injury, I would not be satisfied that the injury was a consequence of any breach of its duty to provide a safe system of work and/or to provide adequate instruction or supervision (the primary particulars of breach in the amended statement of claim), but as a consequence of the plaintiff’s failure to be alert to the risks he knew to be inherent in the manual handling tasks he was required to perform as a trades assistant.

The work site and the system of work

1. [8]

   On 23 January 2007, the defendant was engaged in the removal and replacement of rusted 3.2-metre horizontal steel cross or channel beams (“C-beams” or “stringers”), which support a 300-metre section of the below ground coke conveyor. The coke conveyor carries coke and sulphur to various parts of the steelworks. The section under repair on 23 January 2007 was known as the “24C section” of the coke conveyor. The program for the replacement of the rusted and degraded C-beams had been progressing over a series of staged shutdowns of the plant preceding that date. As at 23 January 2007, approximately 80 per cent of the C-beams that were designated for removal had been removed and replaced.

2. [9]

   The plaintiff was engaged for the shift on 23 January 2007 under labour hire as a confined spaces gas watcher but since this was a rotating position he understood he was expected to provide general trades assistance to the boilermakers assigned by the defendant to work the night shift in the 24C section of the coke conveyor.

3. [10]

   The section of the coke conveyor to be worked in any one shift was customarily cleaned by contract cleaners to free the area of surface rust as part of the preparations of the site. The C-beams designated for removal were then removed by boilermakers employed by the defendant using oxyacetylene cutting equipment. The boilermakers would customarily hammer at the rusted beams to free the remainder of the surface rust before they were cut.

4. [11]

   It was common ground that the C-beams were in varying states of rusted disrepair due to the corrosive material in the below ground environment at the steelworks. In milled condition the C-beams weighed approximately 36 kilograms. While some, if not all, of the beams to be removed were likely to have weighed considerably less, depending upon the degree to which they were corroded, this had no ultimate bearing on the issue of liability. In final submissions it was agreed that the weight of the uncut C-beams designated for removal ranged between 20 and 34 kilograms with a C-beam of half that length being half of that weight range, namely between 10 and 17 kilograms, and that this was a weight that could be safely lifted or carried by the plaintiff.

5. [12]

   The C-beams which were to be removed and replaced were bolted to vertical steel supports or stanchions. The horizontal C-beams, and the vertical stanchions to which they are bolted, comprise the frame or the structure which supports the metal rollers of the coke conveyor. The frame was assembled from a welded steel fabrication utilising standard rolled steel structural components. The steel frame was at a height of approximately 3 feet 7 inches (1.09 metres) from the floor of the underground tunnel with the horizontal C-beams suspended underneath it.

6. [13]

   The return roller, also housed in the frame, is constructed of rubber and positioned underneath the metal rollers. For ease of removal and replacement of the rusted C-beams, and in order to ensure that the return roller was not damaged in that process (a part of the plant valued at $5 million), the metal roller was hoisted off the supporting structure by riggers using slings and chain in preparation for the boilermakers using the oxyacetylene cutting equipment. Although the rubber return roller was exposed once the metal rollers were raised, it was routinely neither raised nor lowered. It was protected from the heat of the oxyacetylene equipment by a fire retardant blanket. The blanket was placed over the return roller in the area being worked with the oxyacetylene equipment by the boilermakers, and then moved along the roller as the cutting work progressed along the line.

7. [14]

   The coke conveyor was described in the evidence as having an “on-side” and an “off-side”. A walkway extended along the length of the tunnel on the “on-side” of the coke conveyor. Water and air pipes extended along the length of the frame attached to the vertical stanchions slightly above the level of the walkway. These pipes effectively prevented access to the understory of the coke conveyor from the “on-side”. The understory of the coke conveyor could be accessed from the “off-side” once the metal roller had been raised. However, the extent to which there was room for a worker to stand upright in that area (assuming there was a reason to do so) depended on the height to which the metal roller had been hoisted and whether the rubber return roller remained in position underneath it. The extent to which there was room for a boilermaker to take up a kneeling or crouched position underneath the frame to affect a cut to the C-beam from that position (again assuming there was a rational reason to do so) was in issue at the hearing.

8. [15]

   It was common ground in the proceedings that the system employed for the removal of the C-beams by the boilermakers at the direction of the defendant was first to cut through the beam (from the “on-side”) at an approximate mid-point along its length, and then to cut it across its width at or near the stanchions (positioned to the left and right of the mid-point, again from the “on-side”) to allow the 3-metre C-beam to be removed in two parts. It was also common ground that the trades assistants were expected to assist the boilermakers in that process by removing the cut sections as they were cut free and then to stack them on trolleys and remove them from the tunnel. Replacement C-beams were also brought to the work site on trolleys by the trades assistants.

The issues in dispute

1. [16]

   A central factual issue in dispute at the hearing was whether there was any need for a trades assistant to physically take hold of the severed C-beam as it was being cut by the boilermaker at the stanchion. It was the defendant’s case that after the C-beam was cut at a mid-point along its length, and as the resulting (half) beam was then being cut at the stanchion end, a trades assistant would likely be either immediately at hand, or called upon by the boilermaker in the final stages of the cut, to take hold of the beam and guide it to the ground. This was both for ease of removal of the cut section and to avoid it dropping needlessly to the floor. It was the defendant’s case that the cut and corroded beam would usually “sag” at the mid-point as the cut was being progressively made at the stanchion end such that in the final stages of the cut (that is, as the beam was cut clean by the boilermaker), it could be removed to one side by the trades assistants or kicked free of the stanchion by them and removed in preparation for being taken away on a trolley.

2. [17]

   It was the defendant’s case that although the trades assistants would need to physically take hold of the cut section of the C-beam in order to remove it, there was no need for the beam to be held or supported as the boilermaker was applying the oxyacetylene torch (except, perhaps, when the cut was almost complete, as described above) since there was no risk of the cut (half) beam dropping under its own weight at any time until the cut was fully affected through the beam. It was also the defendant’s case that there was no structural impediment to the trades assistant standing directly at the C-beam and to hold it with his hands in front of him in that part of the process, that is, that there was no requirement for bending or reaching. It was also the defendant’s case that even were the C-beam to move laterally in the process of it being cut at the stanchion end because it had been cut at the mid-point (as to which there was no evidence), there was no risk of it falling and injuring the boilermaker who was cutting the beam given that he was positioned facing the beam on the “on-side”, with the half-metre length arm of the oxyacetylene cutting equipment extended towards the beam, thereby allowing a safe distance from the heat of the torch as it was applied to the steel.

3. [18]

   It was the plaintiff’s case that the work of the trades assistants was not always regimented in this way. Rather, the very nature of the maintenance project being undertaken by the defendant allowed for members of the work crew, deployed to assist the boilermakers, to be used by them as and when they required. The plaintiff submitted that the system of work allowed for the boilermakers to exercise their own judgment in affecting the cut of any particular C-beam, including where to best position themselves to affect it and to call on trades assistants to do what they considered necessary to assist in that process. For reasons that will become apparent, it is critical to the plaintiff’s case that the system of work could include a boilermaker calling for a trades assistant to hold the C-beam as it was being cut if the boilermaker considered there was a risk of a particular beam falling on him in that process.

4. [19]

   It was common ground that the plaintiff had not worked on the maintenance project on the coke conveyor at the steelworks prior to 23 January 2007 and has not worked there since. It was also common ground that there was a “toolbox” meeting convened on site by Mr De Gori, the site supervisor, at the commencement of the shift and that the plaintiff attended the meeting as a member of the work crew. The precise content of the instructions or directions as to the system that would be employed to remove and replace the C-beams was in contest, in particular, as to whether the plaintiff was told that the C-beams were to be cut in half to facilitate their removal. The plaintiff gave evidence that he was not told of that fact at the meeting and did not become aware of it by observations such that he remained unaware that the C-beams were removed in two sections when the boilermaker called on him to assist by holding the beam as it was being cut. The defendant submitted the evidence compelled a finding that, at the very least, the plaintiff could not have avoided becoming aware that was how the C-beams were being removed by his handling of cut beams given that he had been on shift for three hours by that time.

5. [20]

   The plaintiff gave evidence that he had not seen any C-beam cut in the centre in the course of the shift before he was first called upon by the boilermaker to assist in holding the beam and that he had not seen any cut half beams before that time. That aspect of the plaintiff’s evidence was also in dispute, in the sense that it was said by the defendant to be so improbable as to be rejected as untrue, as distinct from it being something about which the plaintiff might have been genuinely mistaken.

6. [21]

   The plaintiff’s evidence that the boilermaker was standing either under the coke conveyor when he called out to the plaintiff, or that he climbed under it as the plaintiff approached, and that he was asked to hold the beam so it would not fall on the boilermaker as he affected the cut from that position, was also the subject of very considerable dispute.

The pleadings

1. [22]

   In the amended statement of claim, the plaintiff contends that the defendant breached the duty of care owed to him by failing to provide a safe system of work in the tunnel where the C-beams were being removed. The amendments were made to reflect the plaintiff’s expanded evidentiary statement. Although Mr Cavanagh, senior counsel for the defendant, complained about the late service of the further evidentiary statement, he ultimately did not oppose leave being granted to allow the plaintiff to prosecute his claim in that way being content, as he made clear, to deal with the case that the plaintiff now seeks to advance on the evidence.

2. [23]

   In the amended statement of claim, the plaintiff also contends that the defendant failed to warn him of the inherent risks involved in the process by which the C-beams were removed and replaced, and that it failed to adequately supervise his work as a trades assistant under labour hire during the night shift at the steelworks. The relevant particulars of breach are as follows:

The evidence led at the hearing

1. [24]

   As the hearing progressed there were relatively few features of the work site in the tunnel, or the system of work involved in the removal of the C-beams from the conveyor, which were controversial, or which remained controversial in final submissions. The controversy was principally directed to the relative positions of the plaintiff and the boilermaker when the plaintiff claims he injured his back, and to a number of secondary issues the identification of which, and in some respects the resolution of which, were directly related to that central controversy. They included, in particular, the likely or predictable movement of the C-beams as they were being cut by the boilermakers and the role of the trades assistants in that process.

2. [25]

   The identification of the central factual issues in dispute was largely a consequence of the defendant tendering a video of the maintenance work undertaken in the tunnel at BlueScope’s premises at Port Kembla by the defendant’s employees. It was not suggested by Mr Dooley, senior counsel for the plaintiff, that the video was not fairly representative of the work site in the tunnel and the system of work in operation on 23 January 2007 at area “24C section” (or before and after that date). The video was served in advance of the hearing.

3. [26]

   In the video, all boilermakers are cutting the C-beams from either a standing position on the walkway on the “on-side” of the frame with the oxyacetylene torch extended towards the C-beam at, or just below, the boilermaker’s shoulder height. There was an image, albeit fleeting, of one boilermaker sitting on what appeared to be an upturned bucket also on the on-side of the frame, although it is not clear that he was affecting a cut from that position. The video also shows the boilermakers affecting the first cut to the C-beam at its mid-point then cutting the beam at the stanchion end before being removed by trades assistants.

The plaintiff’s evidence

1. [27]

   The plaintiff was registered with Allmens in 2001, after which he was contracted under labour hire in a general labouring capacity two shifts per week with a related company. In order to attract additional shift work, he obtained his Confined Space Watchers Ticket, working on and off in that capacity and as a trades assistant with Allmens from 2001 to 2007 on a contract basis. He also registered with other labour hire companies during that period. His employment was interrupted as a result of injury on two occasions. In June 2002 he sustained a concussion and fractures in an assault, and in 2006 he sustained soft tissue injuries when his dog became involved in a fight. Although he has worked from time to time as a scaffolder, he was not ticketed to do that work. He did, however, obtain his forklift licence.

2. [28]

   The plaintiff filed an evidentiary statement on 19 February 2014 in which his account of the incident in which he was injured was very brief, as follows:

3. [29]

   On 20 May 2014 (after service of the defendant’s video referred to above) the plaintiff filed a second evidentiary statement, which included an elaborated account extending over 24 paragraphs of the incident described briefly in the first evidentiary statement. It also included a detailed hand drawn sketch as to where the plaintiff was standing holding the C-beam and the relative position of the boilermaker but crouched underneath the frame. It was this version the plaintiff confirmed in his evidence in chief as true and correct.

4. [30]

   What follows is a summary of the plaintiff’s evidence drawn from the narrative account in the further evidentiary statement and the questions asked of him about it in cross-examination:

   1. (1)

      Once on site, the plaintiff attended a “toolbox” meeting with the eight to ten workers who were deployed to work the shift with him, inclusive of boilermakers and riggers employed by the defendant and other workers on labour hire. He said nothing specific was said about the work that was to be undertaken during the shift, other than it involved the removal and replacement of the rusted steel beams on the conveyor. He said he was given no specific instructions about how that was to be done, other than it concerned manual handling and that he was told to avoid “pinch points” and to lift with his legs bent and a straight back. In cross-examination, he said he was unable to recall whether the process of replacement and removal was explained at the toolbox meeting.

   2. (2)

      He was then spoken to by Mr De Gori, the site supervisor, and directed to “go down and help these guys [referring to others at the meeting] to start cleaning up”.

   3. (3)

      He said he was engaged over the next three hours in “cleaning up small pieces of metal off cuts, welding rods and other material” along the tunnel in the process of which he was able to observe the conveyor, which had “sections of it cut away and replaced”. At one point in the cross-examination he said that, in the course of those three hours, he did not lift any of the severed pieces of the C-beam and claimed not to have seen how the boilermakers were cutting and removing the C-beams. Later in his cross-examination, when he was being asked about the assistance he was giving another worker (see (5) below), he said:

   4. (4)

      Mr Cavanagh then reminded the plaintiff that in his earlier evidence he had been adamant that he did not lift any beams during what he called the “clean up” phase of his work in the tunnel, and that he was equally adamant that it was only “off cuts and bolts” that he had cleaned up. Mr Cavanagh then resumed the questioning:

   5. (5)

      In the plaintiff’s evidentiary statement he said that whilst providing general trades assistance over the first three hours of the shift, someone asked him to “give them a hand to fetch some new steel beams”, and that he accompanied that person to where there was a trolley, which had steel beams stacked on it. He went on to say that he assisted pushing the trolley back to where he had been doing the cleaning up and thereafter said that he “assisted that person to unload the beams”. In cross-examination he said that he did not physically assist with pushing the trolley or the unloading of the beams and, by including a reference to assisting the person to unload the beams in his evidentiary statement, he only meant to indicate that he was “assisting” by helping the other worker to manoeuvre the trolley and then to hold the trolley whilst it was being unloaded. He said he was also assisting by monitoring air quality in the tunnel.

   6. (6)

      Shortly after providing that assistance, the plaintiff said he was called upon by a boilermaker, “almost out of the blue”, to come and help him. In cross-examination, he abandoned the suggestion that he “followed” the boilermaker to the conveyor as he had claimed in his evidentiary statement. Instead he said that the boilermaker called out to him from where the boilermaker was standing, inside the frame of the conveyor, and that the boilermaker then crouched or knelt to affect the cut as the plaintiff approached. He said he was told to “take hold of the beam” as the boilermaker was kneeling or about to kneel inside the frame. The plaintiff agreed that the boilermaker appeared to have deliberately positioned himself in that way to affect the cut to the beam.

   7. (7)

      He said he took up a position relative to the beam on the on-side by holding it with both hands, arms outstretched, 30-40 centimetres from where the boilermaker was about to commence the cut at the stanchion end. He said he took up that position, because the boilermaker said “don’t let [the beam] fall on me”. In cross-examination he demonstrated that the boilermaker held the oxyacetylene torch above his eye line and applied it to the beam as he crouched or knelt on one knee underneath the frame.

   8. (8)

      The plaintiff said that he did not notice that the C-beam had already been cut in half to his left (or that he had seen that any beams had been cut at the mid-point before being removed) because the lighting in the tunnel was poor.

   9. (9)

      The plaintiff was also cross-examined as to how he was able to detect the level of rust on the beam that was to be removed when the lighting was poor, as to which he said:

   10. (10)

       The plaintiff then confirmed that he could see rust generally on the frame of the conveyor. (The video shows the tunnel lit by fluorescent lighting at 3-6 metre intervals on the walls of the tunnel on both the on-side and the off-side of the frame of the coke conveyor. Although that may have left the conveyer and its frame in shadow, it was not put in final submissions that the lighting was so inadequate as to be productive, in itself, of the risk of injury.)

   11. (11)

       The plaintiff said he was not told that the boilermaker was cutting a half beam which would become free of the structure once the cut was affected and did not notice, from anything he observed in the tunnel in the three hours prior to being called upon by the boilermaker, that the rusted C-beams were being removed in two sections. To the contrary. He said it was his expectation that, once the beam was cut through, it may have sagged or buckled or fallen on the boilermaker (to the plaintiff’s right) as it was only attached at the stanchion to his left and that it was why the boilermaker said to him, “Watch out it doesn’t land on me”.

   12. (12)

       The plaintiff estimated the weight of the beam he was asked to hold to be 17-20 kilograms. He agreed in cross-examination that was a lift and handling weight well within his capacity and something about which he did not require instruction. He confirmed that, on his own version of events, he was not concerned at the possibility of taking the weight of the beam because he estimated it was something that he could easily manage were it to fall in the direction he anticipated, that is, to his right. The plaintiff said that when the beam was being cut he was holding it with both hands outstretched, turning his head away (that is, to his left) from the oxyacetylene torch. He said he was attempting to hold the full weight of the beam by applying upward pressure with his right hand (that is, with the hand closest to the cut) to try to keep the cut closed in the belief that the beam was attached at the stanchion at the opposite end (that is, to his left).

   13. (13)

       He said he next became aware of the weight of the beam in both his hands and, as it suddenly dropped downwards, he was pulled down and twisted to his left. He said this caused a “balloon expanding sensation”, coupled with severe pain in his back.

   14. (14)

       The plaintiff was shown the video in cross-examination and invited to confirm that none of the beams cut by the boilermakers on the on-side dropped suddenly but, rather, that each progressively sagged at an angle to the ground and then were either lifted and removed or kicked free of the frame and removed.

   15. (15)

       The following questions were put to him in cross-examination:

   16. (16)

       He went on to say that as the beam he was holding was cut through, it dropped forward and at an angle to his left. Mr Cavanagh asked the following questions:

   17. (17)

       At that point in the cross-examination, the plaintiff repeated that as he experienced it, the beam dropped quickly and unexpectedly. He did not complain that the weight of the cut beam was excessive, but rather that he was simply not expecting it to drop quickly. I then asked the following questions:

   18. (18)

       When tested in cross-examination as to his expectation that the weight of the beam he was being asked to hold was the weight of a 3.2-metre beam, and the boilermaker’s request of him to take hold of a beam of that length and weight, he conceded that it was the risk of the beam falling suddenly on the boilermaker that was the danger to which he understood the boilermaker was referring when he asked for help.

   19. (19)

       He went on to agree that, bearing in mind that he understood or thought the beam might fall suddenly, he positioned himself holding the beam tightly with both hands and bracing himself to take the weight of the beam. He said, as the beam fell, he did manage to hold on to it and then place it on a pallet. He was cross-examined as to how he knew where to put the cut beam, as to which he said:

   20. (20)

       In his first evidentiary statement he said he advised the leading hand and other workers that he had injured his back. He gave no additional details of the identity of those to whom he reported the injury or the reports he made to others over the following week.

   21. (21)

       In his further evidentiary statement, he said he told the boilermaker he was assisting that he had hurt his back. He said, because of the pain, he stood for a period of time and later reported the injury to “two older workers”. He said that one of them said to him “make sure you report it because you don’t know what it might be like in another day or two”. The plaintiff thought that worker’s name was “Alfonzo” because he had “Alf” written across the top of his hat. That worker was not available to be called by the defendant. The plaintiff said that later in the shift Mr De Gori came and spoke to him and said, “I’ve been told you hurt your back”, which the plaintiff confirmed had occurred. He said that Mr De Gori responded by saying, “Make sure you report it”, to which the plaintiff replied, “I’m reporting it now”. (Mr De Gori was called by the defendant. He said he could not recall any report of injury and was confident he would recall it if one had been made.)

   22. (22)

       The plaintiff said he attempted to continue work in the tunnel but the pain in his back seemed to worsen and so he stopped. He said he reported to Mr De Gori that he could not do the work because of pain, and was appointed to the task of confined space watcher in another part of the plant which involved him sitting down and signing people in and out of the confined space area. He rejected the proposition put to him in cross-examination that he made no report to anyone on site, in particular, that he did not report the injury to Mr De Gori.

   23. (23)

       The plaintiff finished his shift and the next day made a further complaint of injury to his employer via Rod Harper.

The report of injury

1. [31]

   On 25 January 2007, John Doyle, a Senior Site Supervisor employed by the defendant, prepared an incident report which, under various pro forma fields, records information relating to the plaintiff’s injury. According to the incident report, the injury was first notified by the plaintiff to Mr Harper on the morning of 24 January 2007.

2. [32]

   Although the incident report prepared by Mr Doyle records that the complaint was that the plaintiff woke at about 3pm on 24 January 2007 with a “stiff lower back”, the Allmens’ Register of Injuries and Treatment, a document signed by Mr Harper and dated 31 January 2007, records the type of injury as a “sprain to the lower back”. A pro forma field in the Allmens’ records entitled “Operation in which the worker was engaged at the time of injury” records “[injured worker] holding section of steel channel”, and against another pro forma field, “The cause of injury”, as “strained back while holding steel channel”.

3. [33]

   The incident report prepared by Mr Doyle does not include that detail. According to Mr Doyle, Mr Harper, who undertook to make inquiries of the plaintiff and his condition, reported to Mr Doyle on 25 January 2007 that the plaintiff had no ill effects from the stiff lower back he reported on the morning of 24 January. When Mr Doyle queried Mr Harper as to why the plaintiff had not reported the injury on site, he was told that “[the plaintiff] felt a ‘slight twinge’, which he just wanted to report but was otherwise ok”, and that as of 25 January, he was “carrying out his normal shift and duties”.

4. [34]

   On 30 January 2007, the day before the Register of Injuries and Treatment was prepared by Mr Harper, the plaintiff attended on Dr Mill. Dr Mill’s clinical notes were tendered by the plaintiff. They read as follows:

5. [35]

   That same day, upon being referred by Dr Mill to a physiotherapist for assessment, the plaintiff reported to the physiotherapist, “one week ago holding on to weight and dropped suddenly, took weight”.

Evidence of Dr Adams

1. [36]

   The plaintiff relied upon the report of Dr Neil Adams of 21 November 2012, which, after some amendment, was admitted as Exhibit 10.

2. [37]

   Dr Adams was qualified by the plaintiff as an ergonomist. Relying upon the information provided by the plaintiff he undertook an ergonomic evaluation of the system of work involved in the replacement of the C-beams in the tunnel at the steelworks, and the particular circumstances in which the plaintiff claimed to have been injured. That evaluation then informed what Dr Adams described as the foreseeability of the plaintiff’s injury and its preventability.

3. [38]

   In his report Dr Adams made it clear that he was unable to make a precise evaluation of the forces and stresses that would have been implicated in the plaintiff’s “lifting and supporting effort” and the related (partial) fall of the C-beam under weight. Instead he made an assessment of risk factors involved in the exercise utilising an estimate of the length and weight of the C-beam and an assumed combined sideways bend and twist, equivalent to 45 degrees of asymmetry. He then applied various multipliers and formulae, according to NIOSH recommendations, and concluded that the weight that the plaintiff could have safely lifted would have been limited to no more than 9 kilograms. (NIOSH, the National Institute for Occupational Safety and Health, is an administrative body in the US similar to the Australian Workcover Authority.) Dr Adams also concluded that the exertion of effort involved in the plaintiff holding/lifting the C-beam imposed potentially injurious stress on his musculoskeletal system. He went on to identify various risk factors involved in the system of work, including the need for adequate and informed supervision to ensure that any potentially unsafe practices, such as those which he assumed the plaintiff was directed to perform by the defendant’s employed boilermaker, were minimised. In Dr Adams’ view, the on-site supervisor should have ensured that the plaintiff was fully informed of the specific tasks he would be called upon to perform as a trades assistant, including “where and how the beam was and was not supported”.

4. [39]

   Important amongst the assumptions upon which Dr Adams’ opinions were based, was that the plaintiff was required to give some support to the C-beam that was being cut free of the frame it in order to “steady it” in the process of it being removed. Mr Cavanagh did not challenge that as a working assumption. However, as he submitted, whether the plaintiff was asked by the boilermaker to hold the C-beam from the commencement and during the entire process of it being cut free so that the beam would not fall on him remained in issue in the proceedings, as did where the plaintiff stood relative to the mid-point of the beam at that time. Although, for the purposes of his report, Dr Adams accepted the plaintiff’s recollection that the severed end of the C-beam at the mid-point was in shadow because the illumination in the tunnel was poor, and that this contributed to the plaintiff’s ignorance that the C-beam had been cut in the mid-point, in final submissions Mr Cavanagh did identify this as an invalid assumption. I am satisfied that must follow, Dr Adams having accepted that the lighting in the tunnel as shown on the video was inconsistent with the plaintiff’s description of the lighting.

5. [40]

   One of the further assumptions that Dr Adams applied in the preparation of his report was that the plaintiff had his right hand on top of the C-beam and his left hand underneath it, taking the weight of the beam as it was falling. He accepted in cross-examination that by holding the beam in that fashion, the plaintiff must have had the expectation that the beam would be dropping to his right. The plaintiff did not give that evidence. He said he had both hands under the beam. Mr Dooley took the issue up with Dr Adams before he was cross-examined. Mr Dooley asked whether the plaintiff’s altered configuration as he held the beam would make any difference to Dr Adams’ ultimate opinion, as to which he said:

6. [41]

   Dr Adams went on to say that, whilst his appreciation of how the injury was sustained differed from the plaintiff’s account in evidence, his analysis according to the NIOSH criteria, which assumed a two-handed lift, still held.

7. [42]

   In cross-examination, Dr Adams confirmed that, in undertaking his calculations to arrive at a safe lifting weight according to NIOSH criteria, his assessment of the maximum weight that the plaintiff should have been lifting was retrospective, that is, based on his assumptions as to how the plaintiff was holding the beam; the load he was holding/lifting and the situation in which the lifting occurred. He also agreed that in applying the NIOSH formulae, each of the factors to be taken into account required specification before an assessment could be made of what the defendant should have done as a preventative measure to ensure against the risk of injury including, in this case, that the plaintiff:

8. [43]

   Of the factors that Dr Adams assumed in his calculation of a safe lifting weight, the plaintiff’s position 45 centimetres from the C-beam in order to hold the beam was not borne out by the evidence. I am satisfied there was no obstruction by the structural position of air and gas pipes to him taking a position in much closer proximity to the beam as shown in the video.

9. [44]

   Mr Cavanagh also cross-examined Dr Adams referable to the plaintiff’s evidence as to where he was standing relative to the boilermaker when he claimed that the beam tipped or dropped unexpectedly to his left. Dr Adams confirmed that the average width, shoulder-to-shoulder, of an adult male is 50 centimetres. Mr Cavanagh suggested that being so, and assuming the plaintiff was not standing shoulder to shoulder with the boilermaker (which was not his evidence), he would necessarily be taking the weight of the cut beam close to the mid-point of the cut beam, even if unaware that the beam had been severed. Dr Adams maintained that there remained a “very real possibility” that, factoring in the need to be some safe distance from the application of the oxyacetylene torch, the plaintiff might be as close as 25 centimetres to where the torch was cutting and be unaware that the beam was cut 125 centimetres to his left.

10. [45]

    As the cross-examination continued Dr Adams made it clear that it made no difference to his analysis that the C-beam was of any particular length, or that the plaintiff was standing at a particular position along its length, because his analysis was based on the weight of the beam and the movement involved as it fell. Having given that evidence Mr Cavanagh asked the following question:

11. [46]

    I then asked the following questions:

12. [47]

    Under cross-examination, Dr Adams also confirmed his expectation that as the C-beam is cut (that is, as the oxyacetylene torch is being applied in a downward fashion across its width), there is an increased force across the length of the beam (cut at the mid-point) given that there is progressively “less and less holding the beam in position”. He was invited in those circumstances to confirm that, with a 5-millimetre cut at the mid-point, the beam would be likely to “sag to the plaintiff’s left” as the cut progresses towards the final cut:

13. [48]

    Finally, Dr Adams agreed that 10 kilograms is a very light weight for a trades assistant to lift and that 16-21 kilograms is recognised as an acceptable lifting limit and, finally, that he did not consider 17 kilograms to be heavy. These questions were put, it would seem, to meet an account the plaintiff gave to his treating doctors that the “weight he was required to lift was heavy”. Although that evidence was not before me, it gave context to the concessions that Dr Adams made in light of what was ultimately agreed to be the likely weight of the beam the plaintiff was asked to hold.

The defendant’s case

1. [49]

   John Doyle was the first witness to give evidence. He was employed by the defendant as a Senior Site Supervisor. The plaintiff was working under Mr Doyle’s supervision during the course of the night shift on 23 January 2007, although he had no personal dealings with him.

2. [50]

   Mr Doyle gave evidence of his familiarity with the maintenance project being undertaken in section 24C of the coke conveyor on 23 January 2007. It had been undertaken, as he described it, “on many occasions over many years at the steelworks”.

3. [51]

   Upon receipt of a work order from BlueScope for the project, it was Mr Doyle’s responsibility to organise on-site measurements and the mobilisation of staff and equipment. He also gave evidence that the defendant has a system of ensuring that a particular job or project at the steelworks is documented, and that the personnel deployed to a particular maintenance task attend “toolbox” meetings and are made aware of the Job Safety Analysis (JSA) particular to that project.

4. [52]

   Both the JSA and another document generated by the defendant entitled “Site Job Check Sheet” were tendered in the defendant’s case. The Check Sheet refers expressly to the JSA under the field entitled “Hazard Control Form”. That field identifies “hazards” particular to a project, “consequences” that might result from identified hazards, and “protective measures” which should or might be taken to address the identified hazard.

5. [53]

   The JSA does not make any reference to the method by which the C-beams were to be removed and replaced, that is, in two sections with the first cut at the mid-point along its length. “Manual handling injury” is identified on the Job Check Sheet as a hazard and, under the heading of “Setup gear in basement” (which I take to mean the underground tunnel), numerous hazard control measures are identified due to the use of oxyacetylene cutting equipment. Nothing is identified as hazardous or problematic with regard to the removal of the C-beams.

6. [54]

   The JSA was signed by the plaintiff signalling his attendance at the “toolbox” meeting where the Site Job Check Sheet was discussed. The Check Sheet makes no specific reference to the C-beams to be replaced being cut in segments and removed.

7. [55]

   As to the process of removing the rusted C-beams, Mr Doyle’s statement records the following:

8. [56]

   In his evidence in chief, Mr Doyle was asked to comment upon the plaintiff’s account of how he sustained the back injury. In particular, he was asked whether he had ever seen any boilermaker employed by the defendant affecting a cut to a C-beam from underneath the coke conveyor, as to which he said that it is “a silly or stupid position” for a boilermaker to put himself in given the dangers inherent in endeavouring to affect a cut with oxyacetylene cutting equipment in a confined space.

9. [57]

   As to the potential for a boilermaker to have knelt or squatted down under the frame, he said in cross-examination that he had never done it as a boilermaker and could see no need for anyone to kneel or crouch down to cut a C-beam. While he conceded that a boilermaker might do so were it to suit “their whim or desire”, he did not accept that the C-beam could be cut safely by a boilermaker in that position, and could not see any rational reason why a C-beam would be cut from underneath the frame. As to that potentiality, he said:

10. [58]

    I note that Dr Adams agreed in cross-examination that a boilermaker would not be likely to position himself underneath the frame of the coke conveyor if he could avoid doing so, and would not have expected the boilermaker the plaintiff was assisting to have applied the cutting torch to the beam where it would be at risk of falling on him.

11. [59]

    As to the proposition that the boilermaker might ask the plaintiff to “hold the beam so it wouldn’t fall on him”, Mr Doyle said he thought it “highly improbable”, having never seen a boilermaker position himself underneath the frame. He also gave evidence that, by reference to the plaintiff’s line drawing (Exhibit 3) and the line drawing specifications (Exhibit B) of the coke conveyor, inclusive of the positioning of the metal rollers and the return roller within the frame, there was very little space inside the frame to accommodate a person, whether standing or kneeling. He said a person could conceivably stand within the frame but only with great difficulty. He added the boilermaker would have to be a “very slim person to get in there”.

12. [60]

    In cross-examination, although he accepted that it was not until some time in 2011 that he was asked to recall the reported incident of the plaintiff’s back injury, he said he had a recollection of the incident because he filled in the incident report. He conceded, however, that without having read the incident report he may not have remembered the incident itself. He said that he had a recollection of the incident despite the passage of time for the following reason:

13. [61]

    He agreed that the JSA did not identify the specific nature of the task to be undertaken by the trades assistant in the tunnel, and it did not make any specific mention of the potential for the trades assistant to assist in the cutting phase of the project by either holding the end of the C-beam and guiding it to the ground, or simply allowing it to drop before removing it in preparation for being trolleyed out of the tunnel. Mr Doyle conceded that unless a trades assistant had done work on that particular project before, or had observed the process of removal and replacement of the C-beam, he would not know, with specificity, how the work was being carried out on site.

14. [62]

    He also gave evidence that he would have expected a boilermaker who either had a trades assistant assigned to him or whose help he called upon, to communicate with the trades assistant as to what he wanted the assistant to do in the particular circumstance. He gave evidence that if a trades assistant in the plaintiff’s situation were directed to assist the boilermakers in the tunnel for the first time, he would have expected the site supervisor to have explained the way in which the C-beams were to be removed and replaced, as to which he said:

15. [63]

    He was asked whether he had ever seen a C-beam being cut at a stanchion end not simply float or sag to the ground, but to tip or fall suddenly, in particular, if the beam were seriously corroded. He said that he did not expect that would happen and had never seen a C-beam fall in that way in the 15 years when he had either observed the work being done or done the work himself.

16. [64]

    As to the possibility of a trades assistant being asked to hold the weight of a C-beam that was in the process of being cut, he said:

17. [65]

    He gave evidence that there was no occasion (and he was categorical about it) where the return roller was raised with the metal rollers of the conveyor. He said it was always attached to the underside of the conveyor frame. He said it was always protected with a fire retardant blanket whilst the oxyacetylene cutting work was in progress and, for that reason, there was no need to raise it.

Mr Dimkovski’s evidence

1. [66]

   Mr Dimkovski gave evidence that at the time of making his statement he had worked for the defendant for 10 years and, although he could not remember with any precision what work he was performing on 23 January 2007, he accepted that he was working as a boilermaker on the night shift undertaking the replacement of C-beams in the coke conveyor section, having regard to his name on the Site Job Check Sheet. In his statement he said, “I did not ever observe the beam to drop suddenly whilst I was cutting it. As I cut from the top, the beam would just gradually break away”. He confirmed that the process he employed as a boilermaker was to initially cut the C-beam in half, and then to move to the stanchion end to affect the final cut. He also said that as the cut was being affected, the C-beam would commence to drop gradually until he had cut it through, when it would fall to the ground. As to the involvement of the trades assistants in that process, he said:

2. [67]

   He said the cut off segments of C-beams were not heavy, particularly given the degree to which they were rusted. He said he had personally seen trades assistants “pick up, carry or lift many [C-beams]” in the process of removing them for ultimate removal from the tunnel.

3. [68]

   He also gave evidence that he had no recollection of the plaintiff (or any trades assistant) complaining to him that he had sustained a back injury whilst assisting him in the removal and replacement of the C-beams in the tunnel.

4. [69]

   In questions asked of him by Mr Cavanagh referable to the plaintiff’s account of how he was injured, he said:

5. [70]

   In cross-examination by Mr Dooley, he said:

6. [71]

   He was also invited to consider whether there were occasions when the C-beams, in a degraded state, might fall toward where he was affecting the cut, or on occasions “twist towards him”, to which he said, “Not really, no”. It was his experience that beams never fell towards him, they would usually drop down although, on occasion, a trades assistant may have to give it “a bit of a tap and it will fall down”.

Mr De Gori’s evidence

1. [72]

   By reference to the Site Job Check Sheet, Mr De Gori confirmed he was responsible for delivering the “toolbox” talk at the commencement of the night shift. He said he had worked on at least six to ten occasions on other sections of the conveyor belt before 23 January 2007 as the leading hand, and had given the toolbox talk on all other shifts. He said the toolbox talk was the same for each shift and, insofar as it being specific to the job that was to be undertaken during that shift, he said:

2. [73]

   He went on to explain that, when he said “and we do it like that”, he described what was involved by “doing it”. He said:

3. [74]

   When the plaintiff’s account was put to him for comment, he said:

4. [75]

   In cross-examination on that description of the process he confirmed, in answer to questions I asked, that given that the C-beam was being cut at the stanchion end, in leaving a section uncut and then allowing the beam to sag at an angle to the ground before the final cut was affected, there was no necessity for a trades assistant to be called on to hold the beam at any time other than within what he described as “the last cut”, and only then to ensure that the cut beam did not fall and injure the foot of the tradesman or the boilermaker. As to that risk, he said as follows:

5. [76]

   Mr De Gori was asked questions by Mr Dooley about whether there was room underneath the frame for a boilermaker to stand or kneel. Although he accepted the possibility of the return roller being raised when the metal rollers are raised, which would allow for a person, were they minded to do so, to walk from the off-side to the on-side of the conveyor or to take a shortcut from one side to the other, he said that nobody under his supervision would do so without his permission. He also volunteered the view, coincident with that expressed by Mr Doyle, that if a person were to either walk underneath the conveyor, stand underneath the conveyor, or squat or kneel down underneath the conveyor, that person has “got to be somebody skinny … not somebody who has got a bit normal body … at least he’s got to be small, yeah”.

6. [77]

   He disagreed with the proposition suggested to him in cross-examination that the toolbox meetings were so informal and lacking in detail as to be likely to be ignored by those in attendance. He said the importance of the toolbox meeting was that it was part of the safety procedures adopted on site, even to the extent of including the need to ensure that the job site was kept free of debris by the removal of scrap metal. He agreed that most of the matters discussed at the toolbox meeting were common sense, but that did not diminish its importance as part of the defendant’s on-site safety protocols. He said while the procedure for the removal and replacement of the C-beams (including that the C-beam should be allowed to fall to the floor without the need for them to be lifted or held) was discussed, where a particular procedure was called for on-site it was also left to the individual boilermaker to adapt that procedure. He also confirmed that, in his experience, boilermakers will sometimes direct or ask trades assistants for assistance as they see fit.

7. [78]

   Mr De Gori agreed that there was nothing in the JSA where the cutting of the C-beams in half was specifically noted as a matter to be discussed. He said that was likely to be because amongst the experienced boilermakers, all of whom well knew that the beams were to be cut in that way for ease of removal, it may not have been written down as a matter warranting discussion and that if there were a need to discuss it with the trades assistants on shift for any reason, that would have occurred in the tunnel where the work was to be undertaken.

8. [79]

   When cross-examined as to the particular process of removal and replacement of the C-beams, he said:

9. [80]

   He went on to confirm that that was a matter that was always discussed in the toolbox meeting. In answer to questions I asked, he said:

10. [81]

    Mr De Gori confirmed in evidence in chief that if an injury were reported, in particular were a worker to have complained of a back injury, he would immediately call the supervisor (Mr Doyle, in this case) and advise him of the incident and call the safety officer to attend to the injured worker. He confirmed that the defendant’s reporting procedure necessitated that line of communication be followed and that he followed it.

Mr Simpson

1. [82]

   The defendants served a report from Colin Simpson, one of the principals of Simpson Associates Physical Engineering. Mr Simpson is also qualified as an ergonomist and as a consulting and industrial and automotive engineer. He was unavailable to give evidence in the proceedings. With some amendments, his report was tendered without objection.

2. [83]

   Mr Simpson took issue with Dr Adams’ approach to risk assessment, in particular, his ergonomic evaluation and risk analysis based on NIOSH. He also identified a series of erroneous assumptions in Dr Adams’ analysis, in particular that the plaintiff was exerting vertical force with his right hand in a downward direction and upwards with his left hand in order to support the beam. In Mr Simpson’s opinion, Dr Adams’ attempt to utilise a scenario for risk assessment that was physically impossible, translated into what Mr Simpson regarded as a “gross misunderstanding of the mechanics and physics of the event”.

3. [84]

   Dr Adams’ initial resistance under cross-examination to what he ultimately accepted was an error in the assumption about the plaintiff exerting vertical force, and to fail to query why the plaintiff would attempt to hold or support a beam by that means, in my view, undermined the weight of Dr Adams’ opinion generally. Of greater significance is Mr Simpson’s criticism of what I am satisfied is Dr Adams’ unqualified application or adaptation of the NIOSH formulae and data. In Mr Simpson’s view, for the application of the NIOSH formulae to be accurate, a disciplined determination of the various multiplication factors, each of which should be tested for accuracy and absent bias was necessary, including:

4. [85]

   In Mr Simpson’s opinion, Dr Adams wrongly rated the horizontal distance of the plaintiff’s hands (H) (there being no impediment to the plaintiff standing directly beside the beam as it was being cut) and, for unexplained reasons, provided for a lift through a vertical height of 30 centimetres as another multiplier. Mr Simpson also questioned Dr Adams’ appointment of the asymmetry factor (A) as a 45-degree angle and the frequency of lifting factor (F). Applying NIOSH calculations after these multipliers, Mr Simpson calculated a safe lifting weight of 18.33 kilograms.

Restatement of the competing cases

1. [86]

   The plaintiff’s case is that after being assigned to provide general trades assistance in the tunnel, but before he had done anything other than tidying up metal scrap, he was called upon by one of the boilermakers to take the weight of the C-beam the boilermaker was about to cut to ensure that the beam did not fall on the boilermaker and injure him and, in the process, was himself injured.

2. [87]

   It is the plaintiff’s case that as he positioned himself at the C-beam with both hands underneath it, the boilermaker was crouched on one knee at a distance of 30-40 centimetres to his right underneath the frame of the coke conveyor from where, with the oxyacetylene torch angled to his head, he affected the cut from top to bottom across the width of the C-beam. It was the plaintiff’s evidence that he needed to avert his eyes to his left to avoid the heat of the boilermaker’s torch during the cut.

3. [88]

   It is integral to the plaintiff’s case that when the boilermaker had cut through the C-beam from underneath the frame, it immediately and unexpectedly tipped or dropped sharply to his left, causing him to twist sharply under its weight. He said it was this that caused him to suffer immediate pain in his lower back incapacitating him from heavy duties for the remainder of the shift. It is also integral to the plaintiff’s case that the shift in the weight of the beam to his left was experienced by him as sudden and unexpected because he was unaware that the beam he was holding had been cut in the centre to his left.

4. [89]

   The parties addressed their final submissions on the agreed basis that the Civil Liability Act will not be engaged unless the plaintiff discharges the evidential burden of establishing, on the probabilities, that the mechanism by which he sustained his back injury was as he described in his evidence. It was also common ground that the plaintiff would also need to satisfy me (again, on the probabilities) that he had not been told that the system of work involved the C-beams being removed in two pieces; he did not otherwise learn from his exposure to the system of work over the preceding three hours that the C-beams were being removed in two segments; and, finally, that he did not notice that the beam he was holding sagged progressively to his left in the process of it being cut.

5. [90]

   Mr Cavanagh submitted that after considering the plaintiff’s evidence in the context of the evidence called by the defendant in its case, I would be satisfied that his account of how he was injured was inherently improbable. He submitted that this included, but was not limited to, the actions of the boilermaker in kneeling or crouching under the frame and cutting with oxyacetylene equipment from that position with all its inherent dangers, and the plaintiff’s claim that he was ignorant of the process of removal of the C-beams. He submitted that I would reject the plaintiff’s evidence as to these critical issues, or that at least I would not be persuaded that he had discharged the evidential onus of establishing that his back injury probably occurred in the circumstances he described.

6. [91]

   Mr Cavanagh further submitted that I would have grave doubts as to the plaintiff’s credibility generally, the account of how he sustained his injury detailed in his second evidentiary statement being volunteered for the first time upon service of the defendant’s video of the system of work for the removal and replacement of C-beams in the tunnel. Mr Cavanagh submitted that, upon viewing the video, the plaintiff would inevitably have realised that were he to have stood alongside the boilermaker 2 feet (or 60 centimetres) to the boilermaker’s left as the cut was being affected as he claimed in his first evidentiary statement, and were he to continue to maintain that from that position he was unaware that the beam had been severed with the cut at the mid-point of the beam less than a metre to his left, his account of the mechanism of injury was unsustainable and, for that reason, he repositioned the boilermaker to have him affecting the cut from underneath the frame.

7. [92]

   In short, Mr Cavanagh submitted that although it was conceded that the plaintiff injured his lumbar spine at some time during the 12-hour shift on 23 January 2007, I would not find it occurred in the particular circumstances the plaintiff claims and, that being the case, it was not an injury where the defendant’s liability under the Civil Liability Act could or should be considered.

8. [93]

   Mr Dooley submitted that I would accept the plaintiff as an honest and credible witness. Even were I to find that the boilermaker positioned himself under the frame to affect the cut to the C-beam contrary to what the defendant’s witnesses have described as a safe, sensible and practical position, or even were I to find that for a boilermaker to affect a cut from that position was positively dangerous, he submitted that the plaintiff’s account of how the injury was sustained was not inherently improbable, allowing for the reasonable possibility that, for some good reason, the boilermaker saw that position a practical way to affect the cut on the particular C-beam.

9. [94]

   Mr Dooley submitted that, in any event, the success of the plaintiff’s claim would survive a finding that the boilermaker was either not where the plaintiff positioned him, or there was no reasonable likelihood that he was in that position. Although the plaintiff did not concede in his evidence that he might be mistaken as to that detail, Mr Dooley submitted that with the passage of years between 23 January 2007 and the service of the second evidentiary statement in May 2014 the plaintiff may genuinely believe that he has accurately described where he stood relative to where the boilermaker was cutting when he was injured but be simply wrong about it.

10. [95]

    Mr Dooley submitted that being the case, and consistently with the plaintiff being an honest and credible witness in all other respects, the evidence allowed for a finding that rather than facing the plaintiff from underneath the frame, the boilermaker might have been beside the plaintiff to his right, crouching or kneeling on the on-side of the frame to affect the cut. Allowing for that as a reasonable possibility, Mr Dooley submitted that the balance of the plaintiff’s evidence as to how the injury was sustained, including, necessarily, that he was unaware that the C-beam had been cut in the centre, is not simply reasonably possible, but inherently probable.

11. [96]

    Mr Cavanagh submitted that Mr Dooley should not be permitted in final submissions to “cherry pick” from the evidence the defendant has called to meet the plaintiff’s case, as pleaded and particularised, in order to seek to mount the submission that even if the plaintiff’s evidence is rejected in significant respects, because he sustained a back injury at some time during the shift on 23 January 2007 the default position is that the defendant should nonetheless be exposed to an adverse finding on liability because of what the plaintiff contends is the risk of harm inherent in the defendant’s failure to provide a safe system of work and its failure to properly instruct and supervise him.

Determination

1. [97]

   Although the plaintiff’s report of injury a week after he injured his back as detailed in Dr Mills’ clinical notes of 30 January 2007 (set out above at [34]) supports the account of the mechanism of injury he gave in evidence, as do the records maintained by Allmens (set out at [32] above), albeit to a lesser extent, both must be considered in the context of a marked lack of support anywhere in the evidence for the plaintiff’s assertion that he made an immediate report of injuring his back to the site supervisor on 23 January 2007 and for a finding that he did not do so to impact adversely on his credibility.

2. [98]

   I am not persuaded that the plaintiff made an immediate report of having injured his back in the tunnel, or elsewhere at the steelworks during the shift on 23 January 2007, and I am not persuaded that his description of the immediate onset of pain and its sequelae during the balance of the shift should be accepted. Were the plaintiff to have advised Mr De Gori that he was injured in the way he claimed, including that he suffered an immediate and disabling injury, I am satisfied that he would have followed the defendant’s workplace protocols which dictate that the injury be noted and that action be taken to address it, including notifying Mr Doyle. Given the terms of the incident report prepared by Mr Doyle the following day, to the effect that he was notified by Mr Harper that the plaintiff had a “stiff lower back on waking”, in my assessment the probabilities favour the plaintiff having sustained an injury that was not of the severity described by him in his evidence, whatever its mechanism. However, given his insistence that he was injured and felt its effects immediately, I am left in doubt as to whether he was injured in the way he claimed in his evidence, that issue being the ultimate fact in issue insofar as concerns the preliminary evidential question identified by the parties.

3. [99]

   Critical aspects of the plaintiff’s description of the mechanism of injury are also, in significant respects, contradicted by the evidence called by the defendant in its case. In particular, the defendant’s evidence provided no meaningful support for the position the plaintiff ascribes to the boilermaker underneath the frame. In fact, the preponderance of evidence from each of the defendant’s witnesses, in my view, positively and persuasively contradicted the plaintiff’s evidence on this issue. Their frank and consistently expressed surprise, to the extent of disbelief, that a boilermaker would or would need to position himself underneath the frame (or fit underneath it) satisfies me that aspect of the plaintiff’s account of the mechanism of injury should be rejected. (I note that Dr Adams also expressed some incredulity that a boilermaker would position himself underneath the frame to cut the beam.) It follows that I am also unable to accept the plaintiff’s evidence that he was asked by the boilermaker to hold the beam from the commencement of the cut through to the final stages of the cut from his position underneath the frame “to avoid it [the beam] falling on him [the boilermaker]”.

4. [100]

   The question is what follows from that finding.

5. [101]

   Allowing, as I do, for the reasonable possibility that a boilermaker might have called on the plaintiff to assist in holding a C-beam either as it was being cut or in the final stages of the cut, consistent with the work customarily done by trades assistants as part of the system of maintenance work in the tunnel, the preponderance of the evidence demonstrates that there was no risk of a beam “falling on” a boilermaker standing on the on-side of the conveyor and no risk of it dropping or tipping suddenly as it was cut free. Rather, the evidence is that the beam would noticeably sag as the cut progressed across the width of the beam. It follows that from the position the plaintiff says he was standing, relative to a boilermaker on the on-side of the conveyor to the plaintiff’s right, the beam would sag progressively to the plaintiff’s left. That being the case, and even allowing for error in the way the plaintiff described his position at the C-beam relative to the boilermaker, the likelihood of a sudden and dramatic shift in the weight of the beam as the beam was cut free is not borne out by the evidence, irrespective of whether the plaintiff was unaware that the beam had been severed at its mid-point. That being so, the question whether I am satisfied that the system of work which incorporated the beams being removed in two segments was discussed at the toolbox meeting is not determinative. However, given the plaintiff’s presence in the tunnel and his exposure to the system by which the C-beams were removed over at least three hours before he says he injured his back, coupled with the cross-examination extracted at [30(3)] and [30(9)] above, I did not find his evidence that he was ignorant that the beams were cut first at a mid-point persuasive.

6. [102]

   In the result, I am not satisfied that the preliminary question should be answered in the plaintiff’s favour. While I accept he sustained a back injury at some time during the shift on 23 January 2007, I am not persuaded it occurred in the circumstances he describes or that there is any sufficiently compelling variation of those circumstances for me to be satisfied that it probably occurred whilst he was holding a C-beam that was being cut free of the frame of the coke conveyor, unaware that it had been severed at its mid-point. That being so, the defendant’s liability in negligence under s 5B(1) of the Civil Liability Act does not fall to be determined.

Orders

1. [103]

   Accordingly, I make the following orders: