Jurox Pty Ltd v Fullick

1. [1]

   LEEMING JA: I have had the advantage of reading the reasons for judgment of Simpson JA in draft. I agree with her Honour that Jurox’s challenge to the assessment of damages fails, for the reasons given by her Honour. However, I have reached a different conclusion in relation to Jurox’s challenge on questions of liability. I would allow the appeal and remit the proceedings to the District Court.

2. [2]

   Because mine is a dissenting judgment, I will be as brief as possible. What follows presupposes familiarity with the factual and procedural background summarised in the judgment of Simpson JA.

3. [3]

   As Simpson JA observes, the primary judge failed to determine the question of contributory negligence. As her Honour also points out, when Ms Fullick sustained her injury she was, on the findings of the primary judge, emptying 25kg bags of dextrose into a hopper at the premises of Jurox in a way contrary to how she had been trained to do. I respectfully disagree that this Court should itself find that there was no contributory negligence.

4. [4]

   One reason for my disagreement is that it was accepted that Ms Fullick was operating in a way contrary to how she had been trained. As was put orally by the appellant:

5. [5]

   I think there is force in that submission, although it may well be that the consequence is only a modest degree of contributory negligence, and I would accept that it is possible that there might be no contributory negligence in such a case. My attempt to assess what, if any, finding should be made as to contributory negligence is what has caused me to conclude that there is a more fundamental reason why the appeal should be allowed. I respectfully consider that there has been a failure by the primary judge to make sufficiently detailed findings of primary fact as to what occurred so as to permit a conclusion that a finding of no contributory negligence was inevitable. In order to explain this, it is necessary to turn to the details of the evidence.

6. [6]

   As Simpson JA has explained, the system provided by Jurox required the emptying of one 25kg bag of dextrose into a hopper on average once per hour. The bags were stored on a pallet, and transferred to the vicinity of the hopper by a Robur PV80 Microlift. That lifting machine would then be used to raise the bag so that it was adjacent to and slightly higher than the top of the hopper. The clearance height of the hopper was just over a metre, and inside a lip surrounding its edges was a horizontal metal mesh screen. The operator would slide the bag from the tray of the lifting machine so that the dextrose would fall into the mesh on top of the hopper.

7. [7]

   The evidence at trial was that the lifting machine had a smooth surface. Ms Fullick accepted in cross-examination that the bags would readily slide. She was permitted, over the appellant’s objection, to say that “it was a bit difficult” and there was “a bit of effort” to spin the bag around, in re-examination. But even so, the critical matter was what happened thereafter, when the bag was cut open.

8. [8]

   The production manager said that at the point where the bag of dextrose was hanging partly over the hopper, that:

9. [9]

   The critical findings by the primary judge were as follows:

10. [10]

    It was uncontroversial that, because of the fluid-like nature of the dextrose, gravity would cause it to flow once the bag was cut open. That was, as noted above, central to the operation of the system established by Jurox. Accepting that Ms Fullick failed to follow that system, what precisely happened? I fail to see how Ms Fullick could, consistently with his Honour’s findings, have cut open one end of the bag without some of the dextrose then flowing out into the hopper.

11. [11]

    I have considered the possibility that the finding is to be read as if the bag was standing on its side and was cut at its highest point, so that no dextrose would flow out. However, that would seem inherently improbable as a matter of fact, and inconsistent with Ms Fullick thereafter lifting the bag with her right hand. Perhaps most importantly, it is inconsistent with the evidence at trial, including that of Ms Fullick.

12. [12]

    The finding by the primary judge appeared to have been taken from the cross-examination of Jurox’s production manager. He was the last witness called by Jurox. A passage of his evidence was reproduced in the reasons of the primary judge at [57]:

13. [13]

    However, that evidence is, in my view, to be read in light of the (somewhat repetitive) cross-examination which preceded it. The production manager also gave this evidence on the same subject:

14. [14]

    Thus, the final question and answer depended upon the dextrose not flowing out from the bag once it had been cut, a proposition assumed by the questioner and not acceded to by the witness. How it could be that none of the dextrose flowed out of the bag after it was cut was not, so far as I can see, explored in the evidence. That was, it may be inferred, because Ms Fullick herself accepted that some of the dextrose had flowed out of the bag. She gave evidence in chief as follows:

15. [15]

    Accordingly, the critical finding of the primary judge is based upon the final question and answer of the production manager, which turned on the proposition that lifting a full 25 kg bag of dextrose with one’s right hand was an obvious departure from Jurox’s system. It does not follow that lifting a partly empty bag was unsafe.

16. [16]

    The important question, then, was how much dextrose had fallen from the bag after Ms Fullick had cut it open and before she lifted it with her right hand? To reiterate, that was important for at least three reasons.

17. [17]

    The first was that it directly affected the risk to which Ms Fullick was exposed, because the maximum weight would to that extent be reduced. I note that even so, there seems to be no suggestion in the evidence that Ms Fullick would be lifting the bag so that its entire weight would be borne by her right arm; all that was necessary in any event would have been to elevate part of the contents of the bag so that the dextrose would flow through the opening in the bag.

18. [18]

    The second was that it led directly to whether Jurox should have taken steps to remind Ms Fullick of the correct way of filling the hopper. In that way, the failure to make findings of primary fact may be seen to affect other aspects of the reasoning as to Jurox’s liability.

19. [19]

    The third is that the extent to which Ms Fullick departed from the system established by Jurox turned on how much dextrose was permitted to flow out of the bag before she lifted it with her right hand.

20. [20]

    The issue may be summarised as follows. The system established by Jurox relied upon the flow of dextrose from the bag into the hopper by the force of gravity, until such time as lifting the (mostly empty) bag posed no appreciable risk. Ms Fullick did not follow that system. However, she did cause some dextrose to flow from the bag into the hopper before she lifted it. In order to assess the extent to which Ms Fullick was contributorily negligent, as well as in order to assess what steps Jurox should have taken in response to Ms Fullick’s conduct, I have concluded that more precise information is needed as to how much dextrose remained in the bag after it was cut open and before she lifted it.

21. [21]

    None of this was attended to by the primary judge at all. Desirable though it is to avoid the need for a retrial in light of the failure by the primary judge to determine contributory negligence, I do not consider that this Court on appeal can determine for itself this issue of primary fact. Those reasons are sufficient to cause me to allow the appeal, set aside the orders made on 2 April 2015 and order a retrial, confined to questions of liability.

22. [22]

    SIMPSON JA: In September 2013 Ms Sandra Fullick, the respondent, commenced proceedings in the District Court at Newcastle claiming, against the appellant, Jurox Pty Ltd (“Jurox”), damages for personal injury that she alleged she sustained on 5 December 2011, while working at premises occupied by Jurox, and at the direction of Jurox. She was employed, not by Jurox, but by Integrated Pty Ltd (“Integrated”), a labour hire company. She alleged that her injury was caused by the negligence of Jurox. The claim was governed by the Civil Liability Act 2002 (NSW) (“the CLA”).

23. [23]

    On 2 April 2015, after a four day hearing in the District Court, the primary judge held that the respondent had established the necessary elements of negligence for the purposes of the CLA, that she had suffered injury caused by Jurox’s negligence, and that she had suffered damage as a result. He awarded her damages of $588,515 (Sandra Bernadette Fullick v Jurox Pty Ltd (NSWDC, 2 April 2015, unreported)).

24. [24]

    Jurox appeals against the orders, both as to the finding of liability and the quantification of damages.

Background

1. [25]

   From late 2009, the respondent was employed on a casual basis by Integrated. In January 2010 Integrated assigned her to work as a production operator at a factory premises occupied by Jurox. Jurox is an animal health company. Its business includes the manufacture of veterinary pharmaceutical products. At times the respondent was directed to work in a part of the factory called “the powder room”, in which was made a canine oral hydration pharmaceutical. The powder room operated “probably 4-5 times a year”. In the powder room was a machine that had two “hoppers”. The function of the machine was to pack the pharmaceutical product into sachets. The respondent’s tasks included emptying (in circumstances the subject of some dispute on the evidence) 25 kilogram bags of a sugar substance (dextrose) into one of the hoppers, and smaller (10-12 kilogram) bags of a salt substance into the other hopper. The substances were then mixed and small sachets were filled with the resulting product.

2. [26]

   The bags of dextrose were brought from a corridor outside the powder room, where they were stored on pallets. For this purpose a “lifter” (called a PV80) was provided. The lifter had a platform which was lowered to the level of the pallet, the bag of dextrose slid onto the platform, and the lifter wheeled into the powder room, and was placed adjacent to the hopper. The platform was raised, and the dextrose emptied from the bag into the hopper. On the system as devised by Jurox, the bag was placed on the platform so that the operator could slit open the bag and its contents would empty by force of gravity into the hopper. On this arrangement, there was no need for the operator to lift the bag until it was almost empty.

3. [27]

   During the afternoon of 5 December 2011, while emptying a bag of dextrose into the hopper, the respondent felt pain in her back. She remained at work, but performing other, lighter, duties. She did not return to work the next day, and has not worked at Jurox since that event.

4. [28]

   For a time, she was employed by Integrated on a variety of light duties tasks, such as filing. She received payments of workers compensation until the end of 2012, when the payments ceased.

The pleadings in the District Court

1. [29]

   In the Statement of Claim filed in the District Court, the respondent pleaded that Jurox owed her a duty to “take reasonable care to ensure that the site and the system of work were safe and without risk of injury” to her, and that it was in breach of that duty. Specifically, she pleaded her case as follows:

2. [30]

   Jurox filed a Defence. It did not admit the allegation in par 5 of the Statement of Claim and denied the particulars set out in par 7. It pleaded that, in the event that it was held liable to the respondent for damages, the damages to be awarded should be reduced by the application of s 151Z of the Workers Compensation Act 1987 (NSW) (“the WCA”). Finally, it pleaded that, if the respondent suffered any injury (which it denied), the injury was caused or contributed to by the respondent’s own negligence.

The primary judgment

1. [31]

   The primary judge rejected the claim that Jurox failed to devise and maintain a safe system of work. He found that, although there was a “patent” risk of harm to the respondent (that being a risk of injury that may be caused by being required to lift a 25 kilogram bag of dextrose, the measures taken by Jurox to meet that risk constituted “a reasonable response”. Importantly, he accepted that the process devised by Jurox involved no actual lifting of the 25 kilogram bags. He found, however, that the respondent was not carrying out the operation in accordance with that system, or as she had been instructed “by her employer” (sic). Instead of allowing the dextrose to cascade into the hopper by force of gravity, the respondent leaned forward from her waist, and, using her right arm at about shoulder height, and twisting her spine towards the hopper, lifted the bag from the back. He further found that Jurox was under a duty to maintain and supervise the system of work “to ensure that it was complied with”, and that it “failed properly to supervise [the respondent] in the work she carried out in the powder room”. One factor that led his Honour to this conclusion was that “other employees” also did not carry out the task in accordance with the Jurox system. Another was that the respondent’s supervisor (Ms Kim O’Grady) had, without explanation, not been called by Jurox. He drew an adverse inference in accordance with the principles stated in Jones v Dunkel [1959] HCA 8; 101 CLR 298. He found that, but for Jurox’s breach of duty in failing adequately to supervise, the respondent would not have suffered injury; accordingly, factual causation within the meaning of s 5D of the CLA was made out.

2. [32]

   He considered the argument advanced by Jurox in relation to s 151Z(2) of the WCA; he noted that no evidence had been led by Jurox to the effect that the respondent suffered a degree of permanent impairment of at least 15 per cent (WCA s 151H). He noted evidence that Integrated had undertaken “audits of the work environment”, but that these did not extend to the powder room. He considered that it was Jurox who failed to ensure proper supervision of its system of work. He concluded that any audit by Integrated of the work environment would have revealed that the system of work in the powder room was safe; what it would not have revealed was the inadequacy of Jurox’s supervision, with the result that the respondent consistently performed the bag-emptying process in a manner that exposed her to a risk of injury. While expressly recognising that Integrated owed the respondent a non-delegable duty of care, he found no breach of that duty.

3. [33]

   The primary judge did not address the plea of contributory negligence.

4. [34]

   The primary judge enumerated 10 factual findings, of which the following are relevant for the purposes of the appeal:

The Notice of Appeal

1. [35]

   Twelve grounds of appeal were identified. Seven complained, in various ways, of the primary judge’s findings of breach of duty of care, and what was said to be the inadequacy of reasons given for the conclusion that Jurox was in breach of its duty to the respondent. Jurox also challenged the finding of factual causation, the finding that s 151Z(2) of the WCA had no application, the failure to address Jurox’s plea of contributory negligence, and the quantum of damages.

2. [36]

   The respondent has not sought, by notice of contention, to challenge the rejection of her claim that the system of work was unsafe.

3. [37]

   On the hearing of the appeal it was made clear by senior counsel for Jurox that the appeal was almost exclusively directed to the fact finding exercise by the primary judge. Three broad areas of complaint were identified:

4. [38]

   A sustained attack was made at trial on the credibility of the respondent, and was pursued on appeal.

5. [39]

   As mentioned above, the primary judge made favourable findings concerning the respondent’s credibility in respect of her evidence concerning her injury. He made no corresponding (or contrary) findings with respect to her credibility concerning the system of work at Jurox, or the circumstances of her injury, although he observed in that context also, that the respondent was “a poor historian”.

6. [40]

   In one respect, the attack on the respondent’s credibility (or, at least, her reliability) bore fruit. This was in relation to one relatively narrow (though not unimportant) factual issue – the frequency with which she was required to empty bags of dextrose into the hopper.

7. [41]

   The respondent’s evidence at trial was that she performed the operation three times per hour, that is, once every 20 minutes and that she would go through three pallets of 10 bags (that is, 30 bags) on a shift. She maintained this when it was put to her in cross-examination that the capacity of the machine was limited to the “ingestion” of only one bag per hour.

8. [42]

   The respondent’s evidence gained some support from that of Ms Sarah Robinson, who worked at Jurox in 2011. She also said that three bags of dextrose per hour were emptied into the hopper.

9. [43]

   The evidence given on behalf of Jurox was different. Ms Melinda Soper, who described herself as an “operator” employed by Jurox, and one of the more experienced employees said that, once the machine had commenced operating, the dextrose hopper needed “topping up” once every hour. That was supported by the evidence of Mr Nathan Hutchinson, who was the production manager at Jurox as at December 2011. Mr Hutchinson referred to a document containing data concerning the production rate for an order that was filled over a period that incorporated 5 December 2011. That document showed that, during that period, the “hourly charge of dextrose” was one 25 kilogram bag per hour. (On its own, the evidentiary weight of that document might have some limitations. The “hourly charge of dextrose” is, it appears, an extrapolation from other data recorded in the document. It is referable to the particular order that was filled over a period from 21 November 2011 to 25 January 2012. However, it is consistent with the evidence of Ms Soper, which is given in more general terms.)

10. [44]

    The doubts about the reliability of the respondent’s evidence with respect to the frequency with which she emptied bags of dextrose into the hopper do not end at her oral evidence. In an answer dated 12 May 2014 to a request for particulars by solicitors for Jurox, the respondent’s solicitors wrote:

11. [45]

    An expert ergonomist (Mr Neil Adams), retained on the respondent’s behalf by her solicitors, reported:

12. [46]

    The respondent was cross-examined about this. She could not recall giving those instructions to Mr Adams but said:

13. [47]

    In his oral evidence, Mr Adams confirmed that he had discussed with the respondent “the factual scenario that she said pertained at the time” of the respondent’s injury, and that he had been instructed that she was required to load 60 of the 25 kilogram bags into the hopper every hour.

14. [48]

    Senior counsel for Jurox also drew attention to inconsistencies in histories given by the respondent to various medical practitioners who examined her for the purposes of the proceedings.

15. [49]

    The primary judge expressly resolved the factual issue concerning the frequency with which the respondent emptied the bags in favour of Jurox, in sub-par 9 of the factual findings set out above. By necessary implication, he rejected the respondent’s evidence. He did not address any potential impact of that rejection upon any other issues where the evidence of the respondent was in question.

16. [50]

    As pleaded, the respondent’s case focussed upon what was alleged to have been an unsafe system of work. That there was an unsafe system of work was a proposition that underlay all of the particulars of negligence set out in par 7 of the Statement of Claim, including particular 7.6, by which complaint was made of a failure by Jurox to provide “any, or any proper training”. The assertion of failure to provide training was predicated on there being a system of work that required the respondent to lift bulky and heavy items. The primary judge’s findings were such as to indicate that he rejected the proposition that the system of work involved lifting heavy and bulky items. (He specifically found that the system, if properly implemented, did not involve lifting the bags of dextrose.)

17. [51]

    The respondent’s evidence concerning her training was as follows. She said that, on commencement at Jurox, she was given a tour of the premises, but that she had no induction until about August. (That was consistent with the evidence of Mr Hutchinson, who said that, on initial assignment from Integrated, employees were given some site discussions with a safety officer, in collaboration with Integrated, and a general induction. They were started off on “very low complex, low risk tasks”. Integrated employees were not given “a full blown Jurox induction” until after a satisfactory trial period, when they were considered for permanent employment.

18. [52]

    The respondent said that the August “induction” consisted of her being shown a video that demonstrated “bending your knees and that sort of stuff”. She said that when she was directed to work in the powder room, Ms Soper showed her the process. Ms Soper showed her how to place the bags of dextrose onto the platform of the lifter in the corridor, to set the bag crosswise on the platform of the lifter, wheel it into the powder room, raise the platform, and turn the bag around to a perpendicular position, so it could be opened over the hopper. She said that it was then necessary for her to “grab the end of the bag with my right hand”, “slice it open”, whereupon some of the contents would fall out into the hopper, and that she would then use her right hand to lift the bag from the back and tip the contents into the hopper.

19. [53]

    That description was inconsistent with the evidence of Ms Soper, who described a process as outlined above, that depended upon the bag being placed in such a way as to allow gravitational force to operate on its contents.

20. [54]

    The primary judge accepted that the respondent performed the task as she described (at least on 5 December 2011). It may be inferred that he accepted that this was how the respondent routinely performed the task. He did not, however, accept that this was how Ms Soper had trained the respondent to do the task. The finding, which was made by implication only, that the respondent routinely performed the task in the way she described is important because it bears upon the finding of inadequate supervision. If it were the case that the respondent’s performance of the task on 5 December was an aberration from her usual performance, it would be difficult to conclude that Jurox failed properly to supervise. However, if it were the case that the respondent had misunderstood or misinterpreted the instructions initially given to her, and regularly lifted the bag before the bulk of its contents had been poured into the hopper, then it might be inferred that Jurox had negligently failed to observe and correct what she was doing.

21. [55]

    The essence of the finding of liability was that, although the system of work was not unsafe (if implemented correctly) and that the respondent had been adequately instructed in its operation, the manner in which she carried it out was a departure from correct process, and created a danger, and that she was permitted, without correction, to continue to do so. It was the failure to correct the dangerous manner in which she performed the operation that gave rise to the finding of liability against Jurox.

22. [56]

    It was not argued that, at least on 5 December 2011, the respondent did not perform the operation in a manner that departed from the instruction that she had been given, and was dangerous.

23. [57]

    Logically, the first question with respect to the adequacy of supervision is whether the departure was an aberration on that day, something the respondent did on occasions but not habitually, or whether it was something she did routinely and habitually. The findings of the primary judge do not explicitly address this question.

24. [58]

    The manner in which the respondent was questioned, and the answers that she gave, suggest that she was speaking of her practice in the manner in which she did the job. For example, the transcript records that the questioning opened with the following:

25. [59]

    There was some cross-examination about this, but it is difficult to derive any clear response. The evidence is recorded as follows:

26. [60]

    From all of this, it is a reasonable inference that the respondent on the occasions that she worked in the powder room, consistently performed the task as she had described. To the extent that the primary judge failed to consider the availability of such an inference, it is open to this Court to undertake the necessary exercise: Supreme Court Act 1970 (NSW), ss 75A(6) and (10).

27. [61]

    In order to do so, it is necessary to consider the evidence of other witnesses. The relevant evidence has significant overlap with evidence relating to the question of the extent (if any) of supervision afforded to the respondent.

28. [62]

    The respondent’s evidence of the manner the operation was performed drew some support from evidence given by Mr Graeme Wilson, who worked for Jurox, initially through a labour hire company, and later employed directly, from 2003. He did not work in the powder room, but walked past it from time to time and could see the operation through the window. He observed employees loading the dextrose into the hopper. His evidence was:

29. [63]

    However, in cross-examination, Mr Wilson gave the following evidence:

30. [64]

    It is also necessary to note the evidence of Ms Sophie Marsh who was called in the respondent’s case. Initially, Ms Marsh’s evidence was of a process apparently unrelated to the powder room. After being permitted a conference with the counsel, she gave a different description of how the operation was carried out. She said the bag of dextrose was sitting upright, not flat, on the platform of the lifter, the operator cut the top with scissors, and manoeuvred the bag over the hopper. Only a small amount of the dextrose would fall into the hopper. The operator would have to grab the bottom of the bag and shake the rest of the dextrose into the hopper. She said that the only way to get all of the dextrose into the hopper was to lift the bag completely upright and to shake it.

31. [65]

    Ms Sarah Robinson was another Integrated employee who worked at Jurox. She had worked in the powder room. She gave a description of manoeuvring the bag onto the lifter, placing the lifter over the hopper, and slitting the end of the bag. She said:

32. [66]

    Ms Melinda Soper gave evidence on behalf of Jurox. She was employed by Jurox as an “operator”. She was, effectively, the person in charge of the powder room. Part of her role was to train new recruits in its operation. She first worked with the respondent in March 2010 and trained her in the powder room process. Her own function, having trained the new recruit, was to operate the sachet machine. She collected the sachets of finished product from the machine and put them into a container. Her role involved an “In Process Check” (which she called an “IPC”) of sachets every 15 minutes for quality control. She said that the respondent was good at the job. She was asked:

33. [67]

    Ms Soper’s evidence as to her opportunity to observe the respondent, and the extent to which she did so, was not always consistent. She gave the following evidence:

34. [68]

    Nathan Hutchinson was the production manager at Jurox. His role included overseeing “the day to day production of the manufacturing environment” including “personnel performance” and safety. When asked if he had delegated the supervision of the respondent to Ms Soper he said:

35. [69]

    Mr Hutchinson agreed that, if the respondent had emptied the bag of dextrose into the hopper by reaching over the platform, and lifting the bag with her right arm, she would have been following an incorrect procedure. He said:

36. [70]

    On my analysis of the evidence, it is most likely that the respondent did carry out the task in the manner she described, and contrary to the instruction given to her by Ms Soper, and that she did so as a matter of routine. Put differently, she adopted an unsafe work practice, and that work practice continued, uncorrected, until the day of her injury. That emerges from the examination-in-chief of the respondent, and her answers, extracted above at [58], which are clearly directed to the usual manner in which she undertook the task; from the absence of any evidence from Ms Soper that she ensured that the respondent understood her instructions (apparently given once only); and the absence of any real evidence of supervision.

37. [71]

    The evidence to which I am about to refer concerning the extent of observation of the respondent at work in the powder room contributes to the separate conclusion that her unsafe operation on 5 December 2011 was not a departure from her usual practice, or an aberration. Another relevant circumstance is that no reason appears on the evidence to explain why the respondent might have undertaken a somewhat mechanical task differently on that day from other days.

38. [72]

    This appears to me to be consistent with the view taken by the primary judge, even if not articulated in those terms.

39. [73]

    I turn now to the question of the extent of supervision. One thing notable about Ms Soper’s evidence is that she said that she demonstrated the process to the respondent. She did not suggest that she had done so more than once, nor that she had watched the respondent following her instructions until satisfied that she understood and complied with her instructions. When asked whether, to her observation, the respondent carried out the process in the manner instructed, she said:

40. [74]

    On the whole of the evidence, the most likely scenario is that Ms Soper demonstrated, correctly, to the respondent how the system was intended to operate. She did not (and it was not part of her role to) maintain any further supervision. To the extent that she observed the respondent performing her work (as she must have done to say that she was good at her work) it was coincidental, and very much ancillary to her involvement in her own tasks, which included (but were not limited to) 15 minute “In Process Checks” of the sachets. The work was “hectic” and “flat out”.

41. [75]

    Interestingly, while she was invited to comment on the process described by Ms Marsh, of standing the bag on its end (to which she answered that that was “ridiculous”, and if she had seen anyone do it that way she would have stopped them and retrained them) she was not asked if she had seen anybody else do the operation the way the respondent described, of lifting the bag from the bottom after it had lain flat on the platform, partly emptied.

42. [76]

    Senior counsel was critical of the primary judge for taking into account, in his assessment, that other employees had not carried out the task in accordance with proper procedure. In part, this criticism depended upon the evidence of Ms Marsh, which was undoubtedly at odds with the evidence of the respondent, to the extent that she claimed that the bag of dextrose was stood upright on the platform of the lifter. However, there was evidence of Ms Robinson which was, if not entirely in conformity with that of the plaintiff, close to it.

43. [77]

    There was no evidence from Jurox of any formalised system of supervision. Mr Hutchinson’s evidence made it clear that there was no person whose role or responsibility it was to ensure that, once she had undergone the somewhat superficial training by Ms Soper, the respondent understood her instructions and complied with them. Mr Hutchinson did refer to “audits” by Integrated, but he did not suggest that Jurox relied on Integrated in such a way as to relieve it of its own undoubted duty of care to the respondent.

44. [78]

    These conclusions do not rely in any sense upon an assessment of the respondent’s credibility; nor are they affected by the very real reliability issues which I have already outlined. As I have mentioned, it was not suggested that the respondent did not (on the occasion of her injury) undertake the task as she had described, in contravention of what she had been trained or taught to do. To have challenged that evidence would have been to jeopardise Jurox’s case with respect to contributory negligence.

45. [79]

    On this analysis, it is unnecessary to place weight on the evidence of Ms Marsh, upon which his Honour appears to have relied for the supportive finding that other employees had also carried out the process “in ways which deviated in significant ways from the system as designed”.

46. [80]

    Nor is it necessary to draw such adverse inferences as are available from the failure of Jurox to call Ms O’Grady. Although Ms O’Grady was described by Mr Hutchinson as a “team leader”, the evidence does not support a conclusion that she was a supervisor, nor, indeed, that she worked in the powder room with the respondent.

47. [81]

    Having undertaken the more extensive analysis of the evidence that Jurox contends the primary judge ought to have undertaken, I am satisfied that the conclusion he reached with respect to the inadequacy of supervision was correct. I am satisfied that even a modicum of supervision would have exposed the incorrect method that the respondent was using. It would have been a short step from exposure to correction, and the avoidance of the injury. Causation, within the meaning of s 5D of the CLA, is established. The risk of harm to the respondent from lifting 25kg bags from shoulder height was foreseeable (as Mr Hutchinson acknowledged, in his evidence that, had the respondent been observed, she would have been corrected) and not insignificant. It is true that, by the time she lifted the back of the bag, a quantity of the substance had discharged into the hopper, but, on the respondent’s account, this appears to have been a relatively small quantity, insufficient to affect the risk of harm. Measures that could have been taken to avoid the harm eventuating could hardly be described as burdensome; the harm could have been avoided by Ms Soper (or some other Jurox employee) being designated to ensure that the respondent understood and applied Jurox’s system. That would not have involved (as was contended on behalf of Jurox) constant supervision; it would have meant no more than reasonable attention, when the respondent was first instructed, to whether she had absorbed the instruction.

48. [82]

    Negligence (as explained in s 5B of the CLA) on the part of Jurox is established.

Contributory negligence

1. [83]

   The complaint that the primary judge overlooked the issue of contributory negligence is incontestable. It is an issue that can readily be determined by this Court: Najdovski v Crnojlovic [2008] NSWCA 175; 72 NSWLR 728 at [12].

2. [84]

   Section 5R of the CLA is as follows:

3. [85]

   What is required for an assessment of contributory negligence is stated in Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; 59 ALR 529 as follows:

4. [86]

   The conclusion that I have drawn above, that the respondent’s practice was to operate in an incorrect (and risky) way, speaks clearly to the degree of negligence on the part of Jurox. The respondent performed the task in that way in the knowledge that Ms Soper was present in the powder room, a circumstance that must (if she had thought of it) given her a sense of security that her technique was, at least, acceptable. Indeed, Ms Soper described her as “good at” the job. That her incorrect technique went unobserved and unremarked, even in the presence of her instructor, is relevant to the standard of care to be required of the respondent for the purposes of s 5R(2)(a), as well as the question of what she knew or ought to have known, for the purposes of s 5R(2)(b). The respondent’s incorrect technique resulted, not from a conscious departure from what she had been taught, or even carelessness, but from the entrenchment of a practice that ought to have been, and could easily have been, corrected at an early stage. It may safely be inferred that the respondent did not know that she was using the wrong (and a risky) technique; the presence of her instructor in the powder room, without comment as to her technique, does not leave open a conclusion that she ought to have known that her technique was incorrect, and exposed her to danger.

5. [87]

   In these circumstances, I would not find contributory negligence.

Workers Compensation Act, s 151Z(2)

1. [88]

   Section 151Z(2) of the WCA relevantly provides:

2. [89]

   Because:

3. [90]

   The question then is whether Integrated was shown to have been a joint tortfeasor with Jurox. If it was, s 151Z(2)(c) required an assessment of the amount of the contribution that Jurox would be entitled to recover from Integrated.

4. [91]

   The onus of proving that Integrated was a joint tortfeasor (at least in the circumstance where the respondent did not take the proceedings against Integrated that she was entitled to take) lay on Jurox: Maricic at [71], adopting the approach of Hodgson JA in Forstaff Blacktown Pty Ltd v Brimac Pty Ltd [2005] NSWCA 423; Aust Torts Reports 81-814 at [5]; see also Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99; Aust Torts Reports 81-949 at [32] and Shoalhaven City Council v Humphries [2013] NSWCA 390 at [129].

5. [92]

   The primary judge held that Integrated was not a joint tortfeasor. That was, as expressed by the primary judge, because Integrated had not been shown to be in breach of its undoubted duty of care. Analysis of his reasons suggests also that a claim against Integrated would have failed on causation grounds: that is the import of the finding that any audit undertaken by Integrated would have revealed a safe system of work, but not the failure of Jurox’s supervision.

6. [93]

   The only evidence called by Jurox was to the contrary of any breach of duty on the part of Integrated. Mr Hutchinson said that Integrated carried out audits of Jurox’s systems. As was held by the primary judge, an audit of the system would have revealed an adequate and safe system. Reasonable care on the part of Integrated did not extend to supervision of Jurox’s supervisory regime. Reverting to s 5B of the CLA, a reasonable person in the position of Integrated would not have taken the precaution of ensuring that Jurox supervised its own system of work.

7. [94]

   The primary judge was correct to find that Integrated was not a joint tortfeasor, and, therefore, to hold that no s 151Z(2)(c) reduction was to be made.

Damages

1. [95]

   The primary judge awarded damages quantified at $588,515, made up as follows:

2. [96]

   Jurox’s attack is essentially centred on the assertion of a single (but major) error. That error was said to be the determination of the extent to which the respondent’s injury constituted an aggravation of a pre-existing degenerative condition in the respondent’s lumbar spine. Jurox’s position at trial was, and on appeal is, that the respondent suffered from a pre-existing condition, and that the incident of 5 December 2011 caused a temporary aggravation of that condition, the effects of which had long since ceased. While the primary judge accepted that the respondent did suffer an aggravation of a pre-existing condition, he considered the aggravation to be serious and not transient.

3. [97]

   Essentially, resolution of the issues in the damages appeal depends upon that single question of fact. That calls for close examination of the evidence, that given by the respondent, and the medical evidence, which was extensive.

4. [98]

   The competing positions of the parties are most clearly stated in the medical reports of two medical specialists. Dr Christopher Harrington is an orthopaedic surgeon to whom the respondent was referred for assessment by Integrated’s workers compensation insurer, first in October 2012. His reports consistently stated the opinion that the respondent suffered from pre-existing underlying disc degeneration, and that, while the incident at Jurox caused an aggravation of that condition, the aggravation was temporary. In a report dated 10 October 2012, Dr Harrington wrote:

5. [99]

   In a later report (19 February 2013) Dr Harrington wrote:

6. [100]

   On 23 April 2013 he repeated his opinion that the respondent’s continuing pain was due to the intrinsic nature of her spine.

7. [101]

   Dr T Mastroianni is a consultant occupational physician to whom the respondent was referred for medico-legal assessment by her own solicitor. Dr Mastroianni noted a CT scan of 17 December 2010 (the CT scan to which Dr Harrington had referred), which he said showed lumbar degenerative changes. In a report dated 13 November 2012, Dr Mastroianni had a very different view from Dr Harrington as to the causes of the respondent’s ongoing back pain.

8. [102]

   He considered that, as a result of the incident at Jurox, and consistently with that incident, the respondent aggravated a pre-existing lumbosacral disc lesion. He went on to report:

9. [103]

   Dr Mastroianni’s next report was dated 20 March 2013. Contrary to Dr Harrington’s opinion, Dr Mastroianni considered that:

10. [104]

    The primary judge did not accept the opinion of Dr Harrington. He said (in a passage criticised on behalf of Jurox):

11. [105]

    A significant aspect of the complaint made on behalf of Jurox in respect of the conclusion of the primary judge is his finding that the respondent gave evidence that she suffered a different pain following the injury. That, it was contended, had not been said by the respondent. It appears to be true that the respondent did not give evidence in those precise terms. However, she was cross-examined, at some length, to the effect that, when she first sought employment with Integrated, she had dishonestly denied any previous back injury. Her answer was:

12. [106]

    Further, in examination-in-chief, she gave quite extensive evidence concerning her pre- and post-injury condition, this being directed to her need for domestic assistance. She said that pre-accident she had been able to do her housework, gardening and lawn mowing, car washing and window cleaning. The finding of the primary judge is a reasonable extrapolation of that evidence.

13. [107]

    More significant is the evidence of the respondent’s medical records, provided by her general practitioner, Dr Aubrey Yeh. That, in my opinion, is unanswerable evidence that, prior to the Jurox incident, the respondent experienced no difficulty with her back. An entry on 6 July 2000 records a complaint of sciatica; an entry on 20 July 2000 records prescription of panadeine forte (but not the complaint for which it was prescribed); thereafter (although the respondent attended Dr Yeh’s surgery regularly), there is no relevant entry until 22 December 2010, when the respondent is recorded as having, in a telephone call, complained of sciatica. She was referred for a CT scan of her lumbar spine. This was the CT scan to which both Dr Harrington and Dr Mastroianni referred. Dr Harrington interpreted the results as showing “an abnormality at L5/S1”. From this, Dr Harrington deduced that the respondent “must have [had] some back trouble” and “I would have to conclude that she had pre-existing back pain warranting radiological investigation”.

14. [108]

    The absence of any record of back pain in Dr Yeh’s notes was a significant factor in Dr Mastroianni’s opinion. The respondent was cross-examined at length about her pre-accident medical history. At no point was it directly put to her that, prior to December 2011, she had experienced back pain. The nearest the cross-examination came was when the respondent was being questioned about a questionnaire she had completed on application for employment with Integrated. It seems that the respondent had answered “No” to a question about whether she had, or ever had had, back or neck pain or injury, and that that was not a truthful answer. (She replied that it was a truthful answer.)

15. [109]

    Overwhelmingly in my opinion, the evidence shows that, notwithstanding the acknowledged pre-existing degenerative changes, the respondent’s back was, prior to 5 December 2011, asymptomatic, and that, thereafter, it became and remained significantly symptomatic. Dr Mastroianni rebutted Dr Harrington’s view that, if the respondent’s symptoms had not settled by the end of 2012, it could be concluded that the aggravation had ceased and her condition was due to the underlying spondylosis of her spine, by saying:

16. [110]

    On behalf of Jurox, reliance was also placed on reports of Dr Robert Kuru, the respondent’s treating orthopaedic surgeon. The primary judge specifically relied on these reports. It was submitted on behalf of Jurox that Dr Kuru’s reports were not supportive of his Honour’s conclusions. That was because Dr Kuru said, in a report dated 22 August 2012:

17. [111]

    Leaving aside the degree of reassurance that may have been afforded to the respondent by being advised that her condition was degenerative in nature, if these statements were taken alone, they may be seen as unsupportive of the conclusion of the primary judge. However, it is difficult to reconcile sub-paragraph (3) in the latter report with the sub-paragraph that appears two lines below, in the following terms:

18. [112]

    There is, I am satisfied, no error demonstrated in the acceptance by the primary judge of the opinion of Dr Mastroianni in preference to that of Dr Harrington. Dr Mastroianni’s opinion is entirely consistent with the whole of the evidence. The advantage of the general practitioner’s medical records is that they are contemporaneous, progressive and objective.

19. [113]

    For completeness, I note a submission made on behalf of Jurox, which I quote:

20. [114]

    No attempt was made to identify the occasion on which Dr Mastroianni was said to have been presented with the history of sciatica and analgesic treatment, nor of his attempt to draw “an artificial and unpersuasive distinction” between back pain and sciatica. I do not accept that the distinction is artificial or unpersuasive. The evidence is that, prior to December 2011, the respondent’s degenerative back condition was asymptomatic. Such symptoms as she had experienced, on two occasions over a decade, were in her leg. After December 2011 her back condition, as to which there is no evidence that she had previously experienced symptoms, (other than Dr Harrington’s speculation that she “must have” experienced back pain) was significantly symptomatic. Dr Mastroianni provided a perfectly reasonable medical opinion supportive of a causal relationship between the incident of December 2011 and the commencement (and continuation) of symptoms.

21. [115]

    It may be that the respondent’s symptoms would, in any event, have emerged at some time later than December 2011, but earlier than, for example, conventional retirement age. This may be what Dr Kuru was alluding to in the passage extracted above. If so, no attempt was made on the evidence to have such a finding made on the evidence. Jurox elected to rely on Dr Harrington’s view that the aggravation caused by the incident was transitory and had subsided by the end of 2012. In that it failed. It did not leave open any other alternative concerning causation.

22. [116]

    The contention on behalf of Jurox that error is identified in the approach of the primary judge to the cause of the respondent’s ongoing symptoms must, in my opinion, be rejected. That issue was the key to the quantification of damages under all heads. It was submitted that:

23. [117]

    It was not suggested, for example, that, if the causal connection were established, the s 16 assessment was erroneous; nor that the quantification of treatment expenses past and future, economic loss past and future, and gratuitous assistance, past and future were excessive or erroneous.

24. [118]

    I would therefore reject the challenge to the quantification of damages.

25. [119]

    The orders I propose are:

26. [120]

    ROTHMAN J: I agree with Simpson JA.