Agnello v Maliganis Edwards Johnson [2026] ACTSC 84 | Case summary

Agnello v Maliganis Edwards Johnson [2026] ACTSC 84 | Case summary | Zoe

Catchwords: PROFESSIONAL NEGLIGENCE – firm of solicitors – commutation of workers compensation entitlements – whether plaintiff was properly advised of his rights – alleged breach of implied terms of retainer – breach of duty of care – scope of duty of care – state of connection pursuant to s 36B of the Workers Compensation Act 1951 (ACT) – breach of duty – sufficiency of oral advice – no written advice – decision to settle – commutation of rights – breach established with respect to the risk of commutation with respect to opinion contained within report - causation not established – failure to provide advice did not cause harm – value of the lost opportunity – proceedings dismissed Legislation Cited: Civil Law (Wrongs) Act 2002 (ACT), ss 40, 42, 45 Competition and Consumer Act 2010 (Cth), Sch 2 – Australian Consumer Law (Cth), s 18 Corporations Act 2001 (Cth), s 203A Evidence Act 2011 (ACT), s 136 Workers Compensation Act 1951 (ACT), ss 31(1), 36B, 41 Cases Cited: Agnello v Maliganis Edwards Johnson [2024] ACTSC 106 Badenach v Calvert [2016] HCA 18; 257 CLR 440 Chappel v Hart [1998] HCA 55; 195 CLR 232 Dare v Pulham [1982] HCA 70 Darvall McCutcheon v H K Frost Holdings Pty Ltd [2002] VSCA 85; 4 VR 570 Heenan v Di Sisto & Ors [2008] NSWCA 25 Heydon v NRMA Ltd [2000] NSWCA 374; 51 NSWLR 1 Johnson v Perex [1988] HCA 64; 166 CLR 351 Malec v Hutton Pty Ltd [1990] HCA 20; 169 CLR 638 Mason v Demasi [2009] NSWCA 227 McLennan v Clapham & Ors [2019] ACTSC 1 Moss v Eaglestone [2011] NSWCA 404 Nikolaou v Papasavas Phillips & Co [1989] HCA 11; 166 CLR 394 Seamez (Australia) Pty Ltd v McLaughin [1999] NSWSC 9 Sellars v Adelaide Petroleum NL [1994] HCA 4; 179 CLR 332 Sharif & Ors v Garrett & Co (a firm) [2002] 1 WLR 3118 Short v Delaney [1999] NSWSC 1293 Studer v Boettcher [2000] NSWCA 263 Parties: Giuseppe Agnello (Plaintiff) Maliganis Edwards Johnson (Defendant) Representation: Counsel D Lloyd SC with R Bianchi (Plaintiff) DL Williams SC with J Whealing (Defendant) Solicitors Ken Cush & Associates (Plaintiff) McInnes Wilson Lawyers (Defendant) File Number: SC 77 of 2023 Table of contents

Introduction ..........................................................................................................................5 Background ..........................................................................................................................5 Evidence ...............................................................................................................................8 The plaintiff: Giuseppe (Joe) Agnello ..................................................................................8 Cross-examination in relation to Carpet Doctor litigation ..............................................26 Cross-examination in relation to dispute resolution conference on 14 March 2017 ........28 Cross-examination regarding the pre-court conference on 5 April 2017 ........................29 Video footage of the plaintiff: see Agnello v Maliganis Edwards Johnson [2024] ACTSC 106 ................................................................................................................................32 Cross-examination regarding surgical intervention ........................................................33 Katarina Agnello ...............................................................................................................35 David Lander ....................................................................................................................40 James Bodel .....................................................................................................................43 Andrew Muller SC .............................................................................................................45 Preliminary issues ..............................................................................................................52 The admissibility of evidence testing the establishment of the plaintiff’s injury as work related...............................................................................................................................52 The video footage of the plaintiff .......................................................................................54 Assessment of witnesses ..................................................................................................54 The plaintiff and Mrs Agnello .............................................................................................54 Other witnesses ................................................................................................................64 Mr Bedi .............................................................................................................................64 Pleadings ............................................................................................................................65 Issue 1: the scope of the duty of care owed .....................................................................69 The workers compensation claim ......................................................................................71 State of connection: s 36B of the Workers Compensation Act .......................................72 The work injury: s 31(1) of the Workers Compensation Act ...........................................72 The scope of the duty .......................................................................................................72 Did the scope of the duty include the provision of written advice to the plaintiff? ...............73 Issue 2: Did the defendant breach their duty to the plaintiff? .........................................73 The state of connection issue ...........................................................................................73 Failure to provide the statement of Mrs and Mr Agresta to Mr Muller SC ..........................74 Failure to communicate the insurer’s concession and the provision of advice on 6 April 2017 that the outcome was ‘uncertain’ ..............................................................................76 Conclusion as to breach on the state of connection issue .................................................77 The injury and the commutation ........................................................................................77 The 12 March 2017 email ..............................................................................................80 The Sergides Report .....................................................................................................82 Conclusion on breach .......................................................................................................85 Issue 3: Causation ..............................................................................................................86 Conclusion on causation ...................................................................................................91 Issue 4: Damages ...............................................................................................................92 The quantification of the plaintiff’s loss ..............................................................................92 Factors affecting the valuation of the lost opportunity ........................................................92 Weekly earnings ...............................................................................................................94 The state of connection and medical causation .................................................................95 Conclusion..........................................................................................................................98 Orders .................................................................................................................................98 TAYLOR J: Introduction

It is useful to set out matters which were established by the evidence and uncontroversial as they provide context for the issues in dispute.
In 2016, the plaintiff was employed by Carpet Doctor Complete Surface Care & Cleaning (‘Carpet Doctor’). Carpet Doctor was a business he owned with his cousin, Mr Francesco (Frank) Agresta and Frank’s wife, Mrs Rose Agresta.
The plaintiff claimed that he suffered a back injury which occurred while he was performing work duties at a job on 20 May 2016.
On 23 May 2016 and 1 June 2016, the plaintiff was admitted to Queanbeyan District Hospital and received medical treatment for a back injury.
The plaintiff lodged a workers compensation claim on 2 June 2016 with the insurer.
The insurer initially accepted liability for the claim on 8 June 2016.
On 10 June 2016, the plaintiff consulted with Dr Justin Pik, a neurosurgeon, and received treatment and advice regarding his back injury.
On 15 June 2016, the insurer rejected liability for the claim. On 30 June 2016, the insurer ceased paying the plaintiff workers compensation entitlements.
In or around July 2016, the plaintiff retained MEJ to provide legal services to him in relation to his workers compensation claim. The solicitor allocated to the plaintiff’s matter was Mr Rahul Bedi. The senior solicitor allocated to the matter was Mr John Little.
Thereafter communication occurred between the solicitors for the insurer and the defendant in relation to the workers compensation claim. On 26 August 2016, solicitors for the insurer wrote to the defendant requesting better and further particulars of the plaintiffs claim.
Between 7 October 2016 and 10 October 2016, emails were exchanged between the insurer and the plaintiff’s wife. The insurer stated that they considered the plaintiff to be a worker of NSW, not the ACT, and declined to resile from their denial of the claim.
On 18 October 2016, the defendant caused a letter to be sent to solicitors for the insurer which answered the request for further and better particulars. The letter was signed by both Mr Little and Mr Bedi.
On 22 November 2016, an application was filed for the plaintiff by the defendant for arbitration by an Injured Worker with the Industrial Court of the Australian Capital Territory. The application sought arbitration of: (a) The respondent’s liability for and amount of weekly payments. (b) The respondent’s liability for and amount of medical treatment, damages, and other costs. (c) The issue of the state/territory of connection pursuant to s 36B of the Workers Compensation Act.
On 9 January 2017, solicitors for the insurer filed an answer to the claim in the Industrial Court.
Relevantly, the answer denied the following: (a) That the ACT was the territory of connection; (b) That the plaintiff had suffered any injury arising in the course of his employment; (c) That the plaintiff’s incapacity to work was related to an injury arising from the plaintiff’s employment; (d) That the plaintiff could not earn an amount equal to his pre-injury earnings; and (e) That any of the plaintiff’s hospital and medical expenses were required, or reasonably obtained, in relation to a work injury.
The answer asserted that the injuries were a result of a disease of gradual onset, and not caused, or contributed to by the plaintiff’s employment.
In 2017, barrister Mr Andrew Muller SC (as his Honour then was) was retained by the defendant as counsel in the plaintiff’s workers compensation matter.
The defendant arranged for the plaintiff to be seen by Dr Yanni Sergides who prepared a report in relation to the plaintiff’s condition dated 6 February 2017 (‘the Sergides report’).
After retaining the defendant, the plaintiff and his wife had, together and separately, attended conferences with Mr Bedi, between July 2016 and December 2016.
Between July 2016 and December 2016, the defendant had arranged to obtain copies of a range of documents in relation to the plaintiff’s treatment, from Medicare Australia and the plaintiff’s private health insurer, Bupa. On 14 March 2017, the plaintiff’s wife emailed a spreadsheet of the plaintiff’s expenses to Mr Bedi.
On 14 March 2017, the Sergides report was emailed to the defendant. The report noted that the plaintiff was still in an unusual amount of pain, that he should be reviewed by his treating neurosurgeon in 6 months’ time and that further treatment decisions should be considered after that review.
On the same day, the plaintiff and the defendant attended a mediation with the insurer’s solicitors. Together with the plaintiff and his wife, Mr Little, Mr Bedi and Mr Muller SC were present. The pleaded case accepted that the defendant provided the plaintiff with a copy of the Sergides report at the conference. The insurer made an offer to settle the plaintiff’s workers compensation claim for $250,000. Mr Muller SC, Mr Little and Mr Bedi advised the plaintiff that the offer was not enough.
On 6 April 2017, the matter was listed for hearing in the Industrial Court where it was expected that the ‘state of connection’ issue would be ventilated. The plaintiff and his wife met with Mr Muller SC, Mr Little and Mr Bedi in the court building.
After some negotiations the insurer made a final offer of $420,000 inclusive of medical expenses and the plaintiff accepted that offer (‘the settlement agreement’).
On or about 9 April 2017, the settlement agreement was entered into.

The plaintiff described the circumstances in which he came to be in business with his cousin, Mr Frank Agresta, and the creation of the Carpet Doctor. The plaintiff explained the day-to-day operations of the business and the tasks which were performed by himself and others in the business, including Frank and Rose Agresta. The plaintiff said that although he undertook jobs in both the ACT and NSW, majority of the work was in the ACT. He explained the physical set of the business, which included the storing of vehicle and chemicals at premises in the ACT and the registered office in Wickerslack, NSW. He confirmed that address was Frank and Rose’s home address. He confirmed that none of the things he and Frank undertook for the purposes of the cleaning jobs happened at that address.
The plaintiff said that 20 May 2016 was a Friday and he had two jobs that day. He attended a job in O’Malley. He was shown the area which the customer wanted cleaned and proceeded to clean the tile and grout. He said Frank was running the hoses up whilst he was spraying the chemicals on the tiles to break up the dirt and grout. He then brushed the tiles and proceeded to clean the tiles. The plaintiff said “as I was coming out of the laundry I fell and landed on my back. Like, my bum”.
He recalled that it was the first job of the day and suggested that the fall occurred at around 10:30am or 11am. He explained that there was cleaning solution on the floor at that time and that he had been operating a tile and grout wand, sometimes known as a ‘spinner’ to clean. His evidence was that once he fell over backwards, he remembered picking himself up as Frank was pulling the hoses. His evidence was that Frank asked, “what happened?” to which he responded “I just fell over. I’ve – I’ve hurt my back”. He said Frank told him to go down and relax in the truck while he finished the job off. The plaintiff stated that he felt like he had bruised his muscle. He described the day as a “bit of a daze” and that he was “in a lot of pain”. However, he recalled attending the job in O’Malley, doing a quarter of the job, and then sitting in the truck. He said he remembered the fall “pretty good”.
The plaintiff and his wife went to the coast that weekend with family friends, Jason and Danielle Farey, and then came home on the Sunday night. The plaintiff stated that once he was home on the Sunday night, he went to bed and “all I remember was going to the toilet and then I was on the floor, had a spasm and I was stuck in the ensuite”. He clarified that ‘the spasm’ was in relation to his back.
The plaintiff explained that an ambulance attended upon him at home and he was transported to Queanbeyan Hospital. He did not remember significant detail of his arrival at Queanbeyan Hospital as he was “pretty dosed up” however he did recall experiencing temporary loss of his eyesight as a result of a ketamine “shot” which was administered to him. He could not recall what he had been asked by hospital staff regarding what had happened but he believed they would have asked what had happened to bring him to hospital. He stated that he was “that high” on morphine which he offered as explanation for his lack of detailed memory.
The plaintiff confirmed that ten days after his admission to Queanbeyan Hospital he filled out paperwork in relation to a workers compensation claim with his insurance broker Mr Remy Martin. He confirmed that the forms were completed at the hospital by the broker with input from him about the circumstances of the injury.
The plaintiff confirmed his attendance at an appointment with neurosurgeon Dr Pik on 10 June 2016. The plaintiff explained that the appointment with Dr Pik arose because he had been in hospital for some time and he formed the view that “we weren’t getting anywhere”. He and his wife had researched the neurosurgeon to get an opinion. The plaintiff was unable to recall exactly what he told Dr Pik but explained that he had told Dr Pik that he had fallen and then collapsed in the toilet two days later.
The plaintiff confirmed that he had seen various medical professionals and allied health professionals regarding his back since 2016, but he did not have a memory of any of them asking what had happened in respect of his back injury.
He described becoming aware that there was an issue regarding the workers compensation claim being accepted.
The plaintiff said that he was at home on the couch and saw an advertisement for the defendant on the television, so he gave them a call. He recalled the advertisement saying something to the effect of, “If you've injured yourself at work, call Maliganis”. The plaintiff said he contacted the defendant and eventually had a telephone conference with a person who he believed was Mr Little.
The plaintiff set out some of the treatment he had received in 2016 for his back injury which included decompression surgery and then L4-L5 fusion surgery. The plaintiff expressed the view that the first surgery was not effective, and he remained in a lot of pain. He conceded that the second round of surgery gave him some temporary relief however noted he was in pain as he gave his evidence in these proceedings.
The plaintiff was asked about the appointment the defendant had arranged for him to see Dr Sergides. He recalled attending the appointment with his uncle who resided in Sydney. His recollection was that he told Dr Sergides about his work fall and his collapse in the toilet.
In relation to the mediation conference, the plaintiff did not recall the date but did recall attending. He accepted it was held on 14 March 2017 and by that time he had been off work for 10 months. He confirmed that in that time he had not received any workers compensation entitlements. The plaintiff accepted that as of March 2017, he was under financial pressure because of his back injury with both the Canberra Hospital and his physiotherapist “chasing” him for money. The plaintiff said that Mr Bedi had told him that he should advise those who he owed money that he had “mediation coming up and then hopefully it will be all sorted out”.
The plaintiff asserted that in the period up until the mediation conference, he had not been given any advice from the defendant regarding the position he was in with the insurer and the rights he had. He said there was no discussion with the defendant in which those matters were canvassed. He stated that they only matter the defendant had requested from him was for his wife to work out what would be an acceptable sum to settle his case. He clarified that the defendant advised they would either settle the matter or take it to court to seek the plaintiff’s workers compensation be reinstated. The plaintiff stated that he did not really understand the issues which underpinned the refusal by the insurer to pay him workers compensation.
The plaintiff did not recall being given any letter of advice by the defendant conveying what his rights were, what the issues were, how the benefits might be calculated, nor what the maximum or middle range may be of any settlement he might achieve. The plaintiff indicated that even if he were to have received written advice, he “probably wouldn't have read it because that's their professional profession and I would have just taken their word for it”. He stated if he had been given written advice, he would have given it to his wife.
The plaintiff recalled at the mediation conference that he and his wife met with Mr Little, Mr Bedi, and another lady whose name he could not recall. He met Mr Muller SC on the day of the mediation. He recalled noted that “they” (referring to the lawyers and his counsel), were going back and forth between rooms talking “their language” about offers. He noted the offers were low, and they asked his wife what he would need for the following five years. He stated that his wife did some calculations and it “didn’t go through” so Mr Muller SC indicated that “we'll just go to court and turn the tap back on”. The plaintiff gave evidence that on that day he did not think he was given advice regarding the position he was in, nor his rights and options. He recalled that he received advice that the matter would go to court for the purpose of resolving whether he was an ACT worker. He recalled discussions regarding the question of whether he was an ACT worker. He could not recall any other discussions or advice regarding any other issues that stood in the way of a successful claim for workers compensation entitlements.
The plaintiff stated that although he remembered seeing Dr Sergides, he did not remember seeing his report, nor did he remember being given a copy. All he could recall was Dr Sergides expressed a view that he “was in a bad way”.
The plaintiff explained that he was on a “cocktail back then” of medication prescribed to assist him to manage pain including Lyrica, Palexia and Gabapentin. He confirmed that the medication affected his levels of functioning and that he could not function very well, mentally and physically. He said that the defendant was aware he was on medication and the cost of it as he had given them instructions to claim the medication costs as an expense.
The plaintiff said it was his understanding that, following the unsuccessful mediation, his case would go before the court to determine whether he was an ACT worker. The court date was 6 April 2017. He recalled Frank and Rose Agresta having to provide diaries associated with the business, and that they were called in by the defendant to make a statement. The plaintiff did not know what they had said to the defendant nor the effect of their statements.
The plaintiff said he did not receive any advice from the defendant between 14 March 2017 and when the case resolved on 6 April 2017 in relation to the significance or effect of any matters contained in Frank and Rose Agresta’s statements.
The plaintiff recalled that at the end of March he spoke to the defendant to advise that he was in hospital. He recalled that at the end of March he had been admitted to St Vincents Hospital and underwent further treatments on his back. He did not recall “a hundred per cent” of the detail of conversations that he had with the defendant about his attendance at court on 6 April 2017 but agreed there would have been a conversation about his position.
The plaintiff had a vague recollection of the day prior to court when he spoke with Mr Muller SC and Mr Bedi who he said told him, words to the effect, that he had nothing to worry about. He clarified that this was in relation to the question as to whether he was an ACT worker.
The plaintiff confirmed that at no point prior to court on 6 April 2017 had he received any written advice from the defendant regarding his entitlements or the issues in his case. He also confirmed that he was not given any advice regarding his entitlements and what might happen if the matter were to run in court on the day of the hearing.
The plaintiff noted that he came to court with his wife on 6 April 2017 and met his lawyers in the foyer. Mr Muller SC was also there and came back and forth with offers. The plaintiff’s stated that he and his wife were: Pretty stunned because we thought we were just going into court to get redeemed as an ACT worker, that's what I wanted and then they – John said, 'This is – this is normally how it goes. We don't have to go through the court’.
The plaintiff explained that his understanding at this point was that a settlement out of court was the preferred course rather than the state of connection issue being determined by the court. He said he was made to understand that there was reason to be confident that he was an ACT worker and that the court would rule in his favour on this issue.
The plaintiff noted his desire for the future medical expenses to be paid. He noted he did not understand nor was it discussed what maximum weekly payments he could get if he was found to be an ACT worker.
The insurer made an offer for $420,000 and the plaintiff said he was advised by the defendant that it was a good deal and “probably the best thing I was going to get” so he gave the defendant instructions to accept that offer.
Following the settlement, the plaintiff stated that he was chasing up the defendant to obtain the part of the settlement which was intended to come to him. He confirmed that part of the settlement was going to pay some of the medical providers. The plaintiff agreed that he wanted to be paid as soon as possible.
The plaintiff said that he was not given any advice regarding Dr Sergides’ report, nor had he been shown the report. The plaintiff detailed the multiple surgeries he had following the settlement. The plaintiff confirmed he had a consultation with Dr James Bodel in September 2021.
The plaintiff asserted that had he been given advice regarding a range of issues, he may have given different instructions to the defendant: Mr Lloyd SC: Just start with this one. If you'd been told that your case about being a connected ACT worker on 6 April 2017 when you were at court was very strong, knowing yourself and the scenario at that time, what do you tell her Honour you think you would have done? The plaintiff: If, sorry? Mr Lloyd SC: If you were told your case about being a connected worker was very strong, that you were very likely to succeed? The plaintiff: Well, that's what I was going to court for because that's what I wanted. … Mr Lloyd SC: If you were told you could get the determination that you were an ACT worker and then there was an opportunity for the payments of weekly compensation and medical expenses to resume and then at some point in the future it might be possible to reach an agreement about being paid off a lump sum for your future rights, are you following me so far? The plaintiff: Yes. Mr Lloyd SC: What do you think you would have done? The plaintiff: I would have taken the workers comp. Mr Lloyd SC: What about if I add this one in to the equation: if you were told that even though you had a very strong case that you were an ACT worker, if you lost that issue you might get nothing, what do you say? The plaintiff: Well, I didn't believe I was going to lose. I was - the lawyer pretty much made it - that he was confident that I was going to be deemed ACT. Mr Lloyd SC: Dealing with what you've told her Honour about getting treatment paid for again, so again the time frame is 6 April 2017? The plaintiff: Yes. Mr Lloyd SC: Could you just explain why that was important to you? The plaintiff: Why it was, sorry? Mr Lloyd SC: Why it was important to you to get treatment - payment of treatment restored by the workers compensation insurer? The plaintiff: Because I was in pain and - - - Mr Lloyd SC: Well, what about the option of just settling your case and then going on to the public system and also getting some things paid for by your medical health insurer, [Bupa]? The plaintiff: There was nothing discussed about that. Mr Lloyd SC: What about a different option if you were given advice that you could just adjourn or stand over the whole issue and come back when your medical condition had stabilised? If you were given that advice, are you able to say what you think you might have been prepared to do? The plaintiff: Getting payments or nothing, come back - - - Mr Lloyd SC: Well, just going off and coming back without payments in the meantime? The plaintiff: Well, if that was the case, yes, I would have waited. Mr Lloyd SC: I take it from what you've said before that that would have been a much less attractive option - - -? The plaintiff: Pretty much. Yes. Mr Lloyd SC: - - - than getting the determination and payments, and then coming back for other issues later; is that right? The plaintiff: That's - yes.
In cross examination, the plaintiff denied that he had experienced back pain over a period of months prior to the fall he described at work. The plaintiff agreed that since the operation he had in February 2024, his condition had improved. He agreed that prior to the operation, it was difficult to bend and although he could walk without crutches, he struggled to engage in certain everyday tasks.
The plaintiff stated his disappointment with the health professionals he had seen during his ill health since 2016 and conceded that he was angry about the result the defendant achieved in his litigation. The plaintiff asserted that his new surgeon had “pretty much explained everything to [him]” in respect of his condition.
The plaintiff conceded that he may have had a sore back from work prior to the toilet incident however “nothing to the extent that happened on the – on the 20th”. He did not agree that he had had problems with his back for a period of months prior to the toilet incident.
The plaintiff was asked about the occasion when the broker, Mr Martin, came to the hospital for the purpose of completing the workers compensation paperwork. The plaintiff recalled that Mr Martin attended by himself, with the forms, and asked him questions and completed the forms as the plaintiff answered. The plaintiff could not recall anyone else being present on this occasion. The plaintiff conceded he was asked questions by Mr Martin regarding where the incident occurred and whether there were any witnesses to the incident.
The plaintiff denied that he told Mr Martin there were no witnesses.
The plaintiff was presented with the workers compensation forms by Mr Williams SC. Where details of witnesses to the incident were required by the forms the plaintiff accepted that “NA” (not applicable) or a blank space was recorded by Mr Martin. The plaintiff stated that he would have told Mr Martin that Frank witnessed the incident. The plaintiff accepted that he told Mr Martin the date of injury was 20 May, and the time of injury was 9am.
The plaintiff was taken to the section entitled “to whom was the incident reported” and the answer which indicated “wife, employee’s director”. There was no reference to the incident being reported to his partner, Mr Agresta. In response to this, the plaintiff said “[w]ell, I don't know what to say, because I wasn’t filling out the paperwork”.
The plaintiff did not agree that the detail recorded in the form completed by Mr Martin was inconsistent with his description of the incident in his oral evidence.
To the suggestion that Mr Agresta was not present or near him at the time of the incident the plaintiff responded, “I believe he - I think he saw me get up”.
Mr Williams SC pointed out to the plaintiff that the date of injury of the forms had been edited with number 20 (in reference to 20 May 2016) recorded and ‘crossed-out’ as well as some detail of the location of the incident ‘crossed-out’ with the suburb ‘O’Malley’ inserted. Mr Williams SC further highlighted that under a heading “injury details” detail had also been recorded and then crossed out.
The plaintiff did not agree that this reflected some doubt he had as to when and/or where the injury had occurred when he was responding to Mr Martin’s enquiries. The plaintiff stated he that told Mr Martin that he fell over, and he could not explain why Mr Martin recorded the detail of the incident on the form as “[i]njured [his] back unloading and using floor cleaning machinery”. The plaintiff maintained that his injury was not the result of him “[u]sing machinery/unloading machinery from van truck” as Mr Martin had recorded in the workers compensation paperwork.
The plaintiff could not explain why the broker had recorded the detail as he did and confirmed that his wife had requested the broker attend the hospital for the purpose of completing the workers compensation paperwork.
The plaintiff believed that he had tried to tell nursing staff and doctors who had attended on him at the hospital the details of what occurred as best he could. He could not recall whether they had asked whether there had been any incident prior to his collapse in the toilet.
The plaintiff was shown documentation from the New South Wales Government Health Queanbeyan District Hospital (Exhibit D1), which recorded: Triage presenting information: Lower back pain. Sharp and radiating to right left side and down into the right buttocks. Going to the toilet and pain dropped him to the floor. … [Patient] found prone on the bedroom floor. [Patient] was going to the toilet and collapsed with a sharp throbbing pain in his lumbar region through to his right side and down into his right buttock.
He did not recall telling the triage nurse this information. The plaintiff did not agree that this was what had happened, stating “[n]o, I was in the toilet. I had a sharp pain. I collapsed”.
Further in that same document it recorded: [Patient] also had tingling in both feet. [Patient] has had a sore back for some time. Denies straining or heavy lifting.
The document also recorded: “[w]hen [patient] attempted to get up the pain shot up his spine when on all fours”. The plaintiff did not accept that to be an accurate record of what occurred and denied that he collapsed whilst he was trying to get off the toilet, clarifying “[n]o, I was actually going to the toilet, number ones”.
The plaintiff was shown progress notes from the Queanbeyan Hospital dated 23 May 2016 at 7:32am (Exhibit D2), which recorded the following: Brought in with severe back pain predominantly [right side] but at the same time it is across his lower back. Denies any trauma. Started yesterday afternoon as niggly pain and took 2 x Nurofen.
The plaintiff asserted that this record was incorrect.
The summary recorded in this document provided: 1. Lower back pain [p]redominantly [right] sided with some pins and needles to the [left] leg. 2. Denies any lifting, twisting or holding heavy object ([w]orks as floor cleaner)
Whilst the plaintiff agreed that he was asked questions by medical staff at the hospital, he denied that he omitted to recall the incident at work prior to the toilet collapse.
Another Queanbeyan Hospital record, a neurosurgery referral in relation to his admission stated: Thank you for reviewing Giuseppe Agnello, a 42-year-old male who presented on 23 May, with lower back pain after he got off the toilet. He subsequently fell over due to spasm pain in his legs. He has had little improvement in his symptoms since this fall with persisting lower back pain and right leg paresthesia. There was occasional lower back pain in the two months preceding presentation.
The plaintiff did not agree that he had ever advised any of the medical staff at the hospital a record of events as recorded in that document. The plaintiff was adamant that he advised those treating him that that he fell over at work in the days prior to the toilet collapse.
The plaintiff could not recall telling hospital staff that he had occasional lower back pain, suggesting that it could have been that he was advising that he had experienced “sore muscles” in the lead up to his incident at work. He did not agree that he had a “sore muscle” on the Friday prior to the incident, stating “[n]o, I fell over”.
The plaintiff did state that he had a “throbbing lower pain” which he agreed he did not report to anyone at the hospital as being the result of a fall at work saying, “I was down the coast. I thought it was just a bad – a bruising.”
The plaintiff was shown the discharge referral to Dr Yates, his general practitioner. The plaintiff was taken to the following extracts: Thank you for reviewing Giuseppe Agnello a 42-year-old male to be discharged on 03/06/2016 from Inpatient Unit at Queanbeyan District Hospital. Giuseppe Agnello presented to this facility on 23/05/2016 with acute low back pain. Presenting Complaint: 23/05/16 with acute low back pain after getting off the toilet … Brought in by ambulance with severe low back pain, predominantly on right. Sudden onset after getting up off the toilet. Pain exacerbated by movement. Subsequently fell over due to severe, spasmy pain in his legs.
The plaintiff was asked whether he fell over at the time he got off the toilet or if he was attending to his toilet activities. His evidence was he was “doing number ones” and didn’t fall getting off the toilet because as he was standing to go to the toilet.
Further in the discharge referral it was stated: No lifting/twisting/heavy objects, no trauma. No red flags. Notably, he had occasional lower back pain in 2 months preceeding [sic] this presentation.
The plaintiff could not recall experiencing lower back pain in the two months preceding his presentation to hospital, however agreed he could have had sore back muscles noting “everybody gets a sore back when they're working”.
The plaintiff was further taken to notations which indicated he had fallen sideways at the hospital. The plaintiff could not recall this occurring, reasoning he was “pretty drugged out”. The plaintiff also did not recall sustaining a black eye from this fall, as suggested by Mr Williams SC. He was also asked whether he recalled being taken to the Canberra Hospital for some tests, which he conceded: “[a]pparently, I saw a lot of doctors at that time”.
The plaintiff was taken to the following record of his conversation with a social worker on 3 June 2016: Social worker review 03/06 - patient didn’t desire further home services; discussed briefly the financial burdens that are currently upon him.
The plaintiff denied any belief at that time that he was in danger of losing his business and ultimately disagreed with the proposition that he perceived his financial position to be dire at the time he was at hospital.
The plaintiff was taken to ambulance records from their attendance upon him on 23 May 2016 which recorded that he was on the loungeroom floor upon their arrival. He disagreed and stated that he was in the toilet in the ensuite bathroom. The records also recorded “[patient] denies any lifting heavy objects [and] has had a sore back for some time”. The plaintiff stated this recorded was inaccurate.
The plaintiff was shown progress notes from Queanbeyan Hospital dated 3 June 2016 which recorded the following “Dr stating there’s no evidence from scans to support his level of pain”. The plaintiff agreed that he had been advised of this when he was in hospital. The plaintiff agreed he was concerned about his financial position because he had “to support a family and I had a sore back”.
The plaintiff agreed that he had no trust in the medical system at the time and that this mistrust remained at the time he gave evidence in these proceedings.
The plaintiff did not agree that at the time he considered that he was on verge of losing everything “all over again” having previously suffered the loss of a business.
The plaintiff recalled an initial conversation with the defendant firm. He was shown a memo created by the defendant dated 24 June 2016 which recorded “[a]ccident details” as O’Malley, ACT on Friday 20 May (initially recorded as 12 May). The memo further detailed, “Joe was cleaning tiles with a machine, while working he noticed sharp pains in his back and leg”. The plaintiff contended that he would have advised of his fall. The plaintiff recalled that he subsequently spoke to Mr Little on the phone, who asked him about the incident. Handwritten notes on the memo had the following notations: “tile cleaning”, “twisting” and “Frank was there (co-worker)”.
The plaintiff was taken to a file note dated 20 January 2017, which he was asked to assume was a file note authored by Mr Bedi. The plaintiff agreed that Mr Bedi was the junior solicitor working on his matter and that he would have been asking him questions regarding how the injury occurred.
The file note referenced “[t]ile cleaner = spinner” which the plaintiff agreed was something he had likely told Mr Bedi. The plaintiff agreed that the ‘spinner’ was a 12-inch turbo tile grout cleaner which operated from another machine in the truck, which was a vacuum hose machine. The plaintiff estimated the weight of a wand used to operate the ‘spinner’ was 6 to 10 kilograms. The plaintiff agreed that he told Mr Bedi he moved the machine side to side and back and forward.
The file note recorded that the plaintiff had told Mr Bedi he had spun around coming out of the laundry backwards and twisted his body. The plaintiff denied that he did not tell Mr Bedi that he fell over “Oh, well, I – well, I did fall, what I can remember”.
The plaintiff maintained that he had a good recollection of the incident at work. Mr Williams SC suggested to him that the file note demonstrated another circumstance in which he had reported the incident without reference to any fall. The plaintiff maintained that he had always reported that he had fallen over and that he read the file note created by Mr Bedi as recording that he twisted coming out of the laundry and fell.
The plaintiff was presented with the letter authored by the defendant to Dr Sergides dated 6 February 2017. The letter informed Dr Sergides that the plaintiff “instructs us that he suffered injuries to his back in a workplace incident on 14 May 2016” (later corrected to 20 May 2016) and: On the day of the incident, Mr Agnello was using a spinner hard surface cleaner to clean sometimes, this involved rotating the pressurised machine with a twisting motion. We have enclosed photographs of the device at tab 23. While working he noticed sharp pains in his back and leg. He took the rest of the day off.
The plaintiff rejected the proposition that he did not tell the defendant that he fell during the workplace incident.
The plaintiff agreed he saw Dr Sergides around 6 February 2017 and that Dr Sergides would have asked him about how his injury occurred. Dr Sergides’ report recorded that “[h]e was using a machine called a “spinner” to clean a hard surface comprising of tiles. The action involved twisting and rotating the machine. He noticed a sudden pain in his back and leg and had to stop”. The plaintiff insisted that the pain (referred to in Dr Sergides’ report) was from the fall and that the pain he suffered on 20 May arose from the fall.
Dr Sergides’ report recorded that the plaintiff had an episode of lower back pain in 2011, and that the plaintiff had advised him that he was asymptomatic between that time and the incident in May 2016. The plaintiff could not recall whether he had an episode of lower back pain in 2011 stating “it could have been”. Mr Williams SC suggested to the plaintiff that he had back “problems” in the months prior to the toilet incident. The plaintiff confirmed that he would have had sore muscles from overworking stating: I'm not denying that I didn't have a sore back previous. When you physically work with your body, of course you're going to go through a sore back here and there but it was nothing th major than from the May 20 .
The plaintiff rejected the suggestion that he did not fall on 20 May 2016. He maintained that on 20 May he fell at work and on the following Sunday or Monday (early morning) he fell in the toilet.
The plaintiff agreed that the toilet collapse occurred about one year after the business had commenced with Frank Agresta “[o]n record, the partnership but we worked prior to that together”. The plaintiff explained that Rose Agresta performed much of the administration of the business and that she lived in NSW.
The plaintiff agreed that the primary record for the business was a physical work diary however explained that a majority of the bookings were handled through an iPad. The plaintiff agreed that Rose would sometimes send messages or telephone him regarding the upcoming bookings and explained that their iPads were “linked together” so he could see the upcoming jobs.
The plaintiff agreed that one of the two vehicles utilised by the business was a truck he originally had owned. The plaintiff was not able to provide any documentation which demonstrated that the vehicle was kept at the premises in Beard. The plaintiff confirmed that ‘Dominic’, the owner of the Beard premises, was like a brother to him until they had a “falling out”. The plaintiff agreed that there would have been other persons who could confirm that he had operated his truck from the Beard premises such as “[a]ll the friends, and all Dominic’s employees”.
The plaintiff agreed that the business obtained cleaning supplies from various places in the ACT and there would have been documentary evidence of that practice. He believed there would be receipts in the bookkeeping files. He did not recall who had the bookkeeping files at the time the business operated.
The plaintiff said he “wouldn’t have a clue” where the work diary was. He agreed he had provided Mr Bedi the work diary. Mr Williams SC suggested to the plaintiff that he provided Mr Bedi a spreadsheet extracted from the workbook however the plaintiff stated Mr Bedi created that spreadsheet. The plaintiff was shown a letter written by the defendant to the solicitors for the insurer which recorded that there was a ‘CD’ attached to the letter which contained an Excel document which was said to be the “raw data” provided to them by their client, obtained from bookkeeper Ms Sharon Oliver. The plaintiff confirmed Ms Oliver no longer resides in the ACT and he rarely has contact with her.
The plaintiff asserted that Mr Bedi had the spreadsheets on his computer which were prepared based upon information the plaintiff provided him. The plaintiff recalled he had his iPad and diary with him, and he provided Mr Bedi with information which would then be inserted into the spreadsheet.
The plaintiff could not recall whether he obtained the work diary from the bookkeeper. The plaintiff noted he had a physical diary as well as an iPad. Inside the physical diary he recorded the work he was doing each day which was one of the sources of information he brought to the meeting with Mr Bedi. The plaintiff confirmed the bookkeeper had also provided some of the information including “the wages”.
The plaintiff was taken through records from the week leading up to his incident. Mr Williams SC suggested that the record had him working 19 hours for the week. The plaintiff agreed that was recorded there, however could not recall if that was less than what he in fact worked that week. The plaintiff stated that sometimes they did a half day, and there would have been a day “here and there” that they did not work.
The plaintiff suggested that the number of hours recorded were not an accurate reflection of the actual work performed. Mr Williams SC took the plaintiff to a job which was recorded on 20 May 2016 in Ainslie, ACT. The plaintiff did not believe he attended that job stating “I don't know. It's a question mark. Maybe Rose went to quote it. I don't know if it was a job.”
The plaintiff was shown an ‘Initial Rehabilitation Assessment Report’ from Rehab Co, received by CGU Insurance on 26 June 2015. The plaintiff agreed the workers compensation claim at the heart of these proceedings was the second workers compensation claim he had made, following a claim for carpal tunnel syndrome. The report detailed the plaintiff had been treated by Dr Yates for his carpal tunnel symptoms. The plaintiff agreed that he was referred to neurosurgeon, Dr Pik, who performed operations on his left and right wrist. The Initial Rehabilitation Assessment Report recorded that he typically worked between 10 and 12 hours per week which the plaintiff believed to be inaccurate.
The plaintiff agreed that the excel spreadsheets (Exhibit D7) were produced to in an effort to persuade the workers compensation insurer that he was an ACT worker. The plaintiff could not recall that the solicitors had informed him that the insurer believed him to be a NSW worker, however noted “[h]e just said, 'Once we get your diary and your iPad we can tell’” (whether he was an ACT or NSW worker). The plaintiff did not recall any advice from the defendant that the workers compensation insurer had refused his claim on the basis that he was not an ACT worker. He agreed that he understood that it was necessary for his claim for him to demonstrate that he was in the ACT on the day of the incident and that he worked the majority of days in the ACT. The plaintiff described some of the operations of the business across NSW and the ACT.
The plaintiff agreed that a file note dated 11 July 2016 from the defendant firm recorded “ACT 36B” and further notations which recorded detail under four subheadings “usually work”, “usually based”, “P.P Business” and “injury in ACT” reflected the issues in his claim with respect to the ‘state of connection’. He agreed that it was necessary for him to prove that was an ACT worker and that this was explained to him by one or more of the defendant firm solicitors.
Mr Williams SC suggested to the plaintiff that his solicitor had explained to him that it was necessary to prove that he was an ACT worker. The plaintiff responded “[n]o, I had – he just – you know, he just said, 'We'll go through all your documents and we'll – that will determine if you're ACT or New South Wales’”. He agreed he had discussed the concept of looking at where he usually worked, where he was usually based, what the principal place of business was and where the injury had occurred. He did not recall a discussion about those issues in the context of explaining what needed to be demonstrated for him to be an ACT worker for the purposes of his claim.
The plaintiff did not recall being advised that he would also need to demonstrate that he was injured in the workplace.
He agreed there was some conversation regarding how much he earnt and recalled telling the solicitors he had drawings of $1,300 a week. He recalled agreeing to obtain documentation from his bookkeeper. The plaintiff stated that his wife would have obtained any documentation to do with his wage.
The plaintiff agreed that he could not afford physiotherapy as he was not in receipt of workers compensation payments. The plaintiff agreed that for two weeks after his injury the insurer paid workers compensation (two payments of $500) and that once the payments ceased he was unable to afford to go to the physiotherapist as “money was getting tight”. He agreed his business partner did extend to him $1,000 per week in good faith. He could not recall how long this payment continued thought noted that the payments “were like jobs that we did previously, commercial jobs, and I was a partner in the business”. The plaintiff did not agree that Frank went on to lend him money.
The plaintiff was shown an email authored by his wife dated 16 August 2016 where she explained the workers compensation policy is only an ACT workers compensation policy and wrote, “since May 2015 to the present, the number of jobs done in the ACT is 882 and 298 [were] done in NSW”. The plaintiff did not know how his wife had determined those figures.
The plaintiff was shown email correspondence from his wife to the workers compensation insurer where she requested a reconsideration of their decision to deny his claim. In response, the insurer provided: Unfortunately, there are several issues at play and although we declined your husbands claim based on the medical evidence of Dr Pik there are also other matters of contention in relation to liability, specifically we consider your husband to be a worker of NSW and not ACT [sic].
The plaintiff agreed that the two primary issues which the insurer was relying on to reject the claim were the circumstances of the injury and whether he was an ACT worker. He agreed that he discussed both of these issues with his solicitors including the evidence he could provide with respect to those matters. He agreed he provided them the evidence that he was able to provide.
The plaintiff agreed that there were days he worked in NSW, as well as days he worked in both the ACT and NSW. He was taken to a letter which was sent to the insurer’s lawyer which indicated the percentage of days in both NSW and the ACT was 55 per cent. The plaintiff did not agree that was the case, stating it may be “quite a bit less”. The plaintiff later agreed that it would be fair in general terms that he spent something like half the time working in both NSW and the ACT, or solely in NSW.
The plaintiff was shown an email from 9 February 2017 where Mr Bedi’s personal assistant informed Mr Bedi that the plaintiff had made telephone contact to provide an update. The email noted that the plaintiff had been in hospital for 12 days and had seen Dr Sergides. The email recorded that the plaintiff “[was] becoming very stressed about money and losing his business”. The plaintiff agreed that he would have been “stressed out” however did not believe he was concerned he would lose his business at that stage noting he had two business partners operating the business. The plaintiff agreed that as at the time of the email he had not worked since May 2016. The plaintiff did not agree that his business partners as at February 2017 wanted him to resign from the business.
Although the plaintiff did not agree that he was concerned about losing the business at this stage, he agreed that he did tell Mr Bedi’s personal assistant what was recorded in the email. He agreed that he was worried about many things at that time, especially with respect to his financial situation. He agreed that at this time he had a residential property that he owned but not an investment property because it had been sold prior to the May 2016 injury.
The plaintiff was shown his claim against the solicitors in these proceedings. He agreed that he has discussed these proceedings with his current solicitors and that the following was recorded in the Statement of Claim: 143. As a result of the breach of the Retainer and/or the breach of the duty of care owed and/or misleading and deceptive conduct by the Defendant, the plaintiff has suffered loss and damage. Particulars … d. Forced sale of family home; e. Forced sale of investment property;
The plaintiff stated that the sale of the family home occurred in 2017 or 2018 however he was not certain. The plaintiff agreed that there was no “forced sale” of an investment property in addition to his family residence at Maloney’s Beach.
The plaintiff agreed that at as the time of his workers compensation claim settlement, he owed money to Capital Finance as his truck was on lease. The plaintiff did not know how much the mortgage was on his house, nor did he know what the monthly repayments were, as his “wife dealt with all that”.
The plaintiff recalled speaking to Mr Bedi’s personal assistant on the phone, and he agreed he told her that his business partner had received a call from the lawyers for the insurer requesting to provide copies of statements, diaries and all other documents. He agreed that he wanted to discuss this issue with Mr Bedi, however, could not recall the exact detail.
The plaintiff did not recall receiving a letter on 6 March 2017 from his business partner asking him to resign as a director. He did recall Mr Bedi advising him to resign as a director so that his business partners could make decisions if he was in hospital. The plaintiff did not agree that he asked Mr Bedi if that would affect his compensation claim but rather contended that he asked if it would affect his stake in the business.
The plaintiff was taken to extracts from records produced by Dr Yates whom he was assessed by on 7 June 2016. Dr Yates recorded that the plaintiff had been “in hospital recently with severe lower back pain, started after lifting a tile cleaner on 20 May”. Mr Williams SC pointed out to the plaintiff that there was no record of any fall occurring in the report of Dr Yates. The plaintiff replied that he was “pretty sure I did tell him there was a fall”. The plaintiff rejected the suggestion that he did not tell Dr Yates that he had fallen. The plaintiff was taken to the letter from Dr Yates to Matrix Physiotherapy which read: Thank you for seeing Joe Agnello, aged 42 years, who presented with ongoing severe lower back pain following a lifting injury at work on 20 May.
Mr Williams SC asked the plaintiff whether he had told the doctor that he had suffered a lifting injury at work. The plaintiff stated he told the doctor “I was working the tile and grout cleaner, and I fell. How he's written it, I don't know”.
A notation from the appointment with Dr Yates read “refer to Dr Pik. Needs WC cert”. The plaintiff agreed one of the reasons he saw Dr Yates was to get a workers compensation certificate. The plaintiff confirmed that in that context Dr Yates was asking him how the injury had occurred so that he could complete the certificate that he requested for workers compensation purposes. The plaintiff stated that any reference to his injury as a “lifting” injury was inaccurate as he had slipped on 20 May 2016.
The plaintiff was also taken to another document under the hand of Dr Yates dated 21 June 2016 which was not addressed to a particular person. This document stated, “the pain commenced when he lifted a tile cleaner at work on 20 May 2016”. Mr Williams SC asked the plaintiff whether this information was wrong, the plaintiff answered “[n]o, I’m not saying – I’m saying that I was working the title and grout machine”.
The plaintiff clarified that the pain did not commence when he lifted a tile cleaner at work that day but rather the pain commenced when he fell over. Mr Williams SC asked, “it was not as if you experienced an episode of pain and then fell over, is it?”. The plaintiff answered: Well, I don't know. It's a hard – going back eight years now, but I – I fell over and that's when it – that was the last day of work.
Mr Williams SC asked the plaintiff whether the pain had occurred before the fall and the plaintiff replied, “not to my knowledge, no”. The plaintiff confirmed that the pain did not occur when he engaged in any twisting operation.
The plaintiff believed Dr Pik had asked him about how his injury had occurred. The plaintiff was taken to the following excerpt as recorded by Dr Pik in his report: On this occasion, Joe told me he was using the bathroom about three weeks ago when he experienced a sudden onset of very severe low back pain that dropped him to the floor.
The plaintiff confirmed that this was a description of the toilet collapse. Mr Williams SC suggested to the plaintiff that he did not tell Dr Pik about any incident at work. The plaintiff rejected the suggestion that he did not tell Dr Pik about the work injury. He accepted that Dr Pik’s report precipitated the insurer’s denial of liability and because “Dr Pik didn’t put the right ---“. The plaintiff accepted that he did not have a clear recollection of what he reported to Dr Pik but agreed that his appointment with Dr Pik was because he “did it” (the injury) at work. Mr Williams SC asked the plaintiff whether Dr Pik had been his treating doctor for his carpal tunnel syndrome. The plaintiff confirmed “[t]hat was before, yes”.

In an email sent by Mr Bedi on 14 March 2017 to the plaintiff and his wife, Mr Bedi wrote “[p]lease see resignation attached”. The attached document was described as “[r]esignation director Carpet Doctor Complete Surface Care”.
Mr Williams SC took the plaintiff to the document which began, “Dear Frank and Rose, I hereby resign as a director of the company” and referred to s 203A of the Corporations Act 2001 (Cth).
In the email, Mr Bedi wrote “this is technically not you resigning from your employment, just being a director” and that “we don’t see it necessary to specifically put that in and think it may cause trouble with financing if we did”.
The plaintiff explained that Frank and Rose were in the middle of “financing” at the time the email was sent. The plaintiff denied that there were discussions between him, Frank and Rose about what should happen to the business given his inability to work and that he had borrowed money from Frank and Rose around that time.
The plaintiff agreed that Frank and ‘Carpet Doctor’ had instituted proceedings against him in the ACT Magistrates Court on 9 January 2023. The particulars of the claim included that he owned or was represented to own certain assets of the business. A van bearing the registration JOJ 05L, and professional cleaning equipment were the subject of charges or encumbrances by Capital Finance. The plaintiff agreed that he was dealing with that litigation at the time of giving evidence and agreed that as of June 2017 he owed approximately $100,000 to Capital Finance for the van and equipment.
The plaintiff confirmed that an agreement was made in May 2015 which was to the effect that he and Frank would work together, the company would have use of the van and equipment, and Frank and the company would pay Capital Finance such amounts as were necessary to discharge the liability.
The plaintiff confirmed that the statement of claim in the proceedings involving Frank alleged that there was an agreement between them that following the finalisation of his workers compensation claim, that he would either make payments for outstanding business debts or transfer his interest to Frank and Rose Agresta. The plaintiff denied the existence of such an agreement.
The plaintiff denied debts in 2017 to various people. He initially denied owing $35,000 to Anita and Emilio Agnello in early 2017 however later accepted that he did indeed owe about $35,000 to Anita and Emilio Agnello in early 2017.
The plaintiff was taken to the allegation in the ‘Carpet Doctor’ statement of claim that on 3 March 2017, he had entered into an oral agreement with Frank to pay $6,000 to meet his personal liabilities. The plaintiff denied this was so saying that “[t]hey [Frank] were paying the lease payments” and “not [the plaintiff’s] personal liabilities”.
The plaintiff denied any agreement between himself and Frank and Rose Agresta that following the settlement of his workers compensation claim he would pay out a debt to them which he owed.

The plaintiff accepted that Mr Bedi made notes of the dispute resolution conference on 14 March 2017. The plaintiff agreed with the suggestion that he was advised that the insurers were not offering any money for his claim. The plaintiff confirmed that he was also advised that the insurers wanted to first deal with the question of whether he was an ACT worker. The plaintiff recalled that the there was discussion regarding a potential offer being put to the “other side” by him, but he was unable to remember the specific figure.
The plaintiff agreed that he was advised that there was the possibility of weekly payments or a lump sum settlement. The plaintiff did not recall advice to him that settlement for a lump sum would mean he would be responsible for financing his medical treatment thereafter. The plaintiff did recall that Mr Muller SC explained the possibility of accessing his private health insurance though it was not certain.
The plaintiff recalled that Mr Muller SC had advised him his options were to make an offer for a lump sum settlement or to get a hearing date to resolve the state of connection issue.
The plaintiff denied that he was advised by Mr Muller SC that if the matter did not settle for a lump sum, the next step would be a hearing date for the state of connection issue to be determined in some months, which could be followed by months awaiting a decision as well as the prospect of an appeal by the insurer. The plaintiff did not recall advice from Mr Muller SC that his claim may be able to be resolved on the basis of $500,000 to $600,000 plus costs if they were able to “jump all the hurdles” in his case.
The plaintiff did not believe that Mr Muller SC had told him that he thought he had a 70:30 chance of establishing that he was an ACT worker. The plaintiff did not recall being advised that Dr Pik’s report presented some issues for the establishment of his injury as work related or any discussion about accessing social security or superannuation.
The plaintiff was shown a reference to ‘36B’ in the file note from the 14 March 2017 and rejected there being any discussion about this issue stating “[t]here was no discussion because they - it all was pretty - that it was ACT.”
The plaintiff recalled that he was asked whether he wanted to make an offer to resolve the claim or if he wanted to first attempt to establish that he was an ACT worker. The plaintiff stated that “[t]hey had asked us to put a figure together”. The plaintiff disagreed that he had in fact instructed the defendant to make an offer of $400,000 plus costs on the day and stated he believed that his wife suggested an offer of $750,000.
The file note which recorded to “us” and “them” and then “$400,000 C plus” followed by “$300,000 in the hand” and then “not responded” was presented to the plaintiff. He responded, “the only thing I remember of that day, we put an offer in and John Little said '[i]f you got that I'll jump out the window'. And that's pretty much how it went”.
The plaintiff recalled “they said they had to redeem if I was New South Wales or ACT” and agreed that there was to be a “fight” about whether he was an ACT or NSW worker before any other offer was made. The plaintiff confirmed that he understood that a date was set down for the state of connection issue to be considered by the court.

The plaintiff did not recall attending a conference on 5 April 2017, the day prior to the court date, with the solicitors and Mr Muller SC. The plaintiff did not accept that at this conference he was told that there was no guaranteed outcome but that the insurer might be “prepared to pay some money”.
Mr Williams SC took the plaintiff to references in the file note from the conference which recorded that there was no “[n]o guarantee, but looks like insurer pay dollars” and “all or nothing”. The plaintiff did not agree that he was advised that it was an “all or nothing” case with respect to his status as an ACT worker because “[Mr Bedi] pretty much said I was a 90 – 99 per cent that I was an ACT worker”.
The plaintiff said he did not know if Mr Muller SC told him that he had a 70:30 prospect of winning the state of connection issue at this meeting. He did not recall having many conversations with Mr Muller SC.
Mr Williams SC suggested to the plaintiff that he was told the insurer had put $200,000 as an offer the day before the court hearing. The plaintiff was unable to recall the insurer making an offer the day before the court date. He could not recall any offers except at the mediation conference. When the plaintiff was reminded of earlier evidence, he gave that the insurer made no offers at the mediation conference, he responded “[l]ike I said, I can't remember exactly what went down all day, all those hours I was there. I thought they did – they – Andrew Muller as putting offers and that's when he said, 'We'll just go to court and redeem you as an ACT worker’”.
The plaintiff could not recall exact figures but recalled Mr Muller SC communicating a belief that the insurer was prepared to offer $300,000. The plaintiff was asked whether he had responded “[w]ell, that’s not enough” because he was in a difficult situation. The plaintiff said “[o]bviously it wasn't enough. It wouldn't even pay my medical bills”. The plaintiff confirmed that he was in a financially difficult situation at that stage including being unable to pay for physiotherapy.
Mr Williams SC suggested to the plaintiff that he had told his legal advisers that his doctors had told him that he could never return to work. The plaintiff accepted that he could have told the lawyers something to that effect because doctors had advised him that he “was in a bad way”.
The plaintiff accepted that he was told on 5 April 2017 that it was his decision whether “to accept or go to court”. The plaintiff could not recall any conversations with Mr Muller SC where advice was given that he “expected a satisfactory outcome if [the plaintiff] went to court on the ACT issue but there may be another fight about whether the insurer would be prepared to pay because of the injury and where it had occurred”. The plaintiff could only recall being advised that “we were going to court to get the tap turned back on with ACT workers comp”.
The plaintiff was taken to the file note from 5 April 2017 which recorded “when worked both ACT and New South Wales”, followed by “tricky for Joe”. The plaintiff did not accept that this reflected advice given to him that even if he succeeded on the state of connection issue his prospect of success on the claim remained “tricky” because of the challenge that would remain in establishing that his injury was work related.
The plaintiff did not agree that the file note “[w]arning. Could lose and be New South Wales” reflected advice given to him in clear terms that there was a real possibility he could lose on the state of connection issue.
The plaintiff could not recall providing any figures himself or talking about figures at the conference. The plaintiff disagreed that there was a discussion regarding how long it may take for him to return to work.
The plaintiff agreed that his wife had made some calculations that she brought along to the conference, and they were based on the plaintiff receiving $1,500 a week for five years. The plaintiff could not recall if she had told the lawyers about it in the conference or shown them the calculations.
The plaintiff confirmed that he had been hoping to get back to work in about 5 years time stating he was “expecting to have a miracle every day and return back to work”. When asked if a miracle had occurred, he responded “[n]o, not really”, asserting he had been living with chronic pain for eight years.
The plaintiff confirmed he assisted his wife with her business, ‘Papa Joe’s Catering’. He confirmed ‘Papa Joe’ was a reference to him. The plaintiff explained that he assisted his wife once a week at a market stall at the Southside Farmers Market, cooking for a couple hours. The plaintiff agreed that the business was established around March 2020 when the COVID pandemic commenced and he initially assisted by doing catering out of his home from a downstairs kitchen.
The plaintiff could not recall being advised that weekly workers compensation payments were subject to a limit, that he would not be compensated for “stress” or that he would not receive half of the equivalent of a five-year absence from work.
The plaintiff was shown a file note which recorded, “[i]f ACT, we will try to take them on an injury”. The plaintiff denied that this reflected the strategy which was recommended to him by his legal representatives at the time, being to first obtain a ruling that he was an ACT worker and then deal with the question of whether his injury had occurred at work.
The plaintiff rejected the suggestion that Mr Muller SC had told him settling a case such as his for a lump sum was a balancing exercise that involved a transfer of risk. The plaintiff denied that Mr Muller SC told him that if he was able to return to work in only two years a lump sum settlement might “see him ahead”. The plaintiff was taken to the file note which recorded “[n]o guarantee re win” and rejected the suggestion that he was told bluntly that there was no guarantee of a successful outcome for him. He accepted that he had “most probably” given instructions to reject any offer that was made on the basis that it was not enough.
The plaintiff said he worked at Papa Joe’s once a week performing varied tasks. He explained that at times when he has been hospitalised, he has not worked in the business however when he did feel well, he would work on a casual, perhaps once a week, basis at most.
The plaintiff explained that he operated the barbeque and would “make a bit of cream for cannoli”. He confirmed that most preparations occurred in the downstairs area of the family residence. The plaintiff denied it was ever his dream to operate a food van.
The plaintiff was taken to a referral to Professor Garrick dated 14 March 2018. The plaintiff confirmed Professor Garrick was his pain specialist and recalled seeing him almost two years after the workplace incident. The document recorded “Mr Agnello has been experiencing low back and bilateral leg pain since a fall at work in May 2015”. The plaintiff denied this was the first occasion he had reported to a medical practitioner that he had fallen at work.
The plaintiff confirmed, consistent with the detail contained in the referral document, that stepping away from the Carpet Doctor business caused significant financial strain and that his wife was working two jobs to meet their financial obligations. The plaintiff also confirmed that the assessment of his state of mind as recorded in the document was accurate because he was “in a bad way with depression”. The plaintiff was taken to an excerpt which recorded that his “goals include weaning off his analgesic medication, returning to work potentially in a driving role, and opening a food van”. When asked if he was able to fulfil his goal of opening a food van he stated “no, my wife did”. He confirmed he was not paid a wage for his work with the food van, and that any money realised from the business went directly to his wife.

Video footage of the plaintiff engaging in work and physical activity, captured in January 2024, was produced in cross-examination. Counsel for the plaintiff objected to reliance on this footage. I will come to the admissibility of the footage in due course.
The footage captured the plaintiff performing numerous acts of physical labour with apparent ease which included unloading items from a van, carrying and lifting a full gas bottle onto the truck, opening a freezer, bending over, reaching up to retrieve an item from a shelf, erecting a ladder, climbing the ladder, reaching up and around to handle and put in place a tarpaulin, cooking, bending, operating signage, lifting steel weight and preparing food for the barbeque.
The plaintiff insisted that he was in significant pain when he was performing the tasks captured in the footage. Mr Williams SC suggested to him he appeared to be walking with a “relatively normal gait”. The plaintiff insisted that he was in pain and “popping the pain tablets when I worked with the trailer” but that he had to help his wife, stating “I admit to it, I helped my wife. But did you see me after I finished doing all this?”.
The plaintiff confirmed that the physical activities he was captured performing in the video footage were activities he would do on each occasion he assisted with the food van, however, did not agree that he performed these activities with a relatively normal range of motion. He said that he was in pain, would take extra painkillers on days that he helped his wife and that his “normal” was different. When asked if he presented a lot better in that video than in court giving his evidence the plaintiff noted that he had recently had surgery. The plaintiff confirmed that the footage reflected the physical condition that he was in prior to his most recent surgery.
Mr Williams SC suggested to him that he had been warned by several surgeons not to have any more surgery, and that he had been telling doctors that he believed there was something “undiscovered” in his back which required medical intervention. He denied both suggestions and maintained that it was medical professionals who had indicated to him there was something “undiscovered” in his back. He explained that he had seen several surgeons to get a second opinion, not in an effort to identify a doctor find who would operate on his back at his request.
The plaintiff denied that he and Mrs Agnello were operating the food van business as a type of joint venture or partnership, despite posts on social media where they referred to “their” customers and presented themselves as operating the business together. The plaintiff insisted that he was only assisting his wife to operate the business.
The plaintiff rejected the proposition that he was walking “straighter” before his recent surgery than at the time of giving his evidence. The plaintiff stated that he was taking a “cocktail of medication back then” and that he would be “struggling” after assisting with the van and would “go to bed very early”. He accepted that despite the effect upon him of the physical activities that he engaged in captured on the footage, the day after assisting with the operation of the van he was able to perform normal activities and again, assist with the operation of the food van.
The plaintiff was played footage captured the day after the first clip was recorded. The footage captured him engaging in similar physical activities as depicted (and described above at [186]) in the first clip. Mr Williams SC suggested to the plaintiff that he was not physically struggling to perform the tasks he could be observed engaging in on the video footage and that he was carrying out the activities depicted in the video without any apparent physical difficulty. The plaintiff responded that he “had to do what I had to do to survive”. He rejected the description of him as not physically struggling when performing the activities.

Mr Williams SC returned to the suggestion that the plaintiff had received advice from various doctors warning him that further surgery was unlikely to solve his problems. Mr Williams SC took the plaintiff to a report of Dr Richard Parkinson dated 20 June 2018 which recorded “[i]t is difficult to tell whether there's any neurological injury. I do not think that further surgery would be appropriate or reasonable”. The plaintiff could not recall this advice. The plaintiff was asked if he could recall an appointment with his GP where he asked to see another doctor notwithstanding the advice from Dr Parkinson. The plaintiff responded, “I saw a lot of doctors that had different opinions”.
The plaintiff recalled seeing Dr Martine O’Neill. In her report dated 27 November 2018, Dr O’Neill recorded the following: Joe remains somatically focussed and is convinced that there is a problem with his spinal fusion hardware. … He was insistent today that he have another MRI scan and a referral to a second neurosurgeon for opinion. … In his own words, he told me, "I'm a concreter and I know there is a problem". … Although Joe remains convinced that further spinal surgery will cure his problems, my own feeling is that an intensive pain management program would be the best way forward.
The plaintiff confirmed that he was concerned that there was something wrong with his spinal fusion hardware and agreed he had insisted on being referred to a second neurosurgeon but did not recall stating something to the effect of “I'm a concreter and I know there is a problem”. The plaintiff stated he was not made aware of the view of the pain specialist at that time explaining “[n]o, I had no confidence in the health system in Canberra” and he could not recall any conversation where an opinion was given that intensive pain management would be the best way forward.
The plaintiff was taken to the reports of Dr Andrew Cree who recorded the following in his report dated 20 February 2019: This gentleman has an ongoing severe pain syndrome. It seems unlikely, at this point, that satisfactory outcome could be achieved with further surgical intervention. … Today, he has returned to my consulting rooms requesting to proceed with a further surgical procedure. … I've been quite frank with Mr Agnello and his wife today that I do not feel that further surgery is likely to substantially improve the situation, and yet I feel compelled to offer him the benefit of the doubt.
The plaintiff explained that it was Dr Cree who “actually said he wouldn't be able to tell until he went in how was it fused after the surgery. That was his words”. The plaintiff denied pressing Dr Cree to do further surgery notwithstanding advice he had received as to the utility of further surgery. The plaintiff stated, “he asked me to go back to Dr Winder to give him the benefit of the doubt and Dr Winder said, 'I believe I've done everything,' and then Dr Cree said, 'It's a gamble but we won't know until we go in.' Long story short, I wasn't fused properly”.
The plaintiff was taken to a second report of Dr Cree dated 7 June 2023 which recorded: I think any decision to extend the fusion here would be extremely unpredictable with regard to outcome. … Plainly, there is a pattern here of repeated spinal surgical undertakings with some improvement in overall stance, mobility and symptoms but the likelihood of improving him at this stage with extension of the fusion to the sacrum is unpredictable, at best. Furthermore, with a history of previous synovial cyst formation at L1-2, if we were to extend the fusion to the sacrum at some stage, we would anticipate having to further extend the fusion proximal as well’. … As previously, I've tried to slow down this pattern of repeated spinal surgical undertakings and do not think a period of further observation is appropriate.
Mr Williams SC suggested to the plaintiff to he was told by Dr Cree that he did not believe repeated spinal surgical intervention in the future was the appropriate way to approach his pain. The plaintiff disagreed and stated Dr Cree advised him to get another opinion. The plaintiff confirmed that he was able to identify another doctor who was willing to perform surgery on his back.

Mrs Katarina Agnello, the plaintiff’s wife, recalled that Frank and the plaintiff called her to advise that the plaintiff had a fall at work in May 2016. Frank told her that he would drop the plaintiff home. The plaintiff told Mrs Agnello that he was in “so much pain” and explained to her that he had slipped over and fallen at work whilst he was operating a machine.
Mrs Agnello agreed that the plaintiff had also fallen sometime after the work incident at home. She described the fall in the toilet as follows: He was calling out to me. I believe it was like at around 2:00 o'clock in the morning. I could hear him, 'Cat, Cat,' and he was on the floor facedown about, like, sort of in between the ensuite and the bedroom, and I said to him, 'What's happened?' and he said he was weeing and he's fallen. He collapsed. His legs gave way. That's what he said to me. I called the ambulance and then I called my parents to come to watch the kids.
Mrs Agnello could not recall whether the plaintiff had given any account of the history of his injury to the ambulance officers when they were called following his toilet fall. She described at the hospital he was: [P]retty incoherent. Like, just in agony, like, wailing from the pain. And then the next thing, they came in and gave him a shot of ketamine in his arm which was probably the most – the worst thing that could have happened because then he couldn't see. He was screaming out for his mum. He was just – I've never seen anything like it which made me then kind of panic.
Mrs Agnello said the plaintiff and his workers compensation broker completed the forms together to report the workplace injury.
Mrs Agnello detailed medical appointments she attended with the plaintiff and engagements with the defendant following the cancellation of workers compensation payments. She noted that if the defendant had provided the plaintiff with written advice, she would have read it to the plaintiff and that if there had been any misunderstanding, she would have told him to seek clarification from the defendant.
Mrs Agnello agreed that she had calculated the five-year period cost to the plaintiff to see to his medical expenses and to receive a wage. She recalled that the total figure she initially provided to Mr Muller SC was $750,000 or $780,000. The figure she said was based on $1,000 a week for five years for earnings.
She recalled a mediation conference, and the advice provided in relation to the offer made by the insurer. Her evidence was that Mr Muller SC, Mr Bedi, Mr Little and “another lady” from MEJ came into the room and advised that the insurer was in another room, and that they would be going back and forth to get offers. She stated that she gave Mr Muller SC her calculations. Her evidence was that Mr Little said to him after he looked at it, “[i]f you think you’re going to get that” or “if you get that, I will jump out of this window”.
Mrs Agnello recalled that offers were made. She could not recall the exact offers but thought the last one which came back to them was approximately $250,000. She could not recall the plaintiff making an offer.
Mrs Agnello could not recall being given any advice about what would occur if the case was settled and what “rights” this would involve for the plaintiff.
She said that she had not seen the report from Dr Sergides.
Mrs Agnello said that the defendant had given advice to her husband prior to the hearing on 6 April 2017 about whether the plaintiff was an ACT worker, the effect of which was that the defendant was “99 per cent sure that we would be deemed an ACT worker”. Mrs Agnello gave an account of the offers made on the day prior to the settlement. She said it was a “bit of a blur” because they did not really know what was happening as the lawyers were moving back and forth making offers. She said she had a firm recollection that “when it got down to the final offer of the 420,000 or whatever it was, that's when John Little was, like, 'If you go in those court doors now, you will, like, likely to get nothing’”.
Mrs Agnello indicated that they were not given any advice as to what would have happened if the matter proceeded to hearing and the plaintiff was classed as an ACT worker.
In cross-examination, Mrs Agnello accepted that she had some difficulty in remembering what happened in conferences with the defendant and noted that whilst she was able to remember the detail of what occurred on some occasions, others she did not recall. She was able to recall the initial consultation with Mr Little to discuss “whether [they] had a case”. Mrs Agnello recalled providing paperwork from the doctors and hospitals shortly after meeting with Mr Bedi, however, could not recall any further details.
Mrs Agnello recalled a meeting Mr Bedi to discuss the matter however could not remember what was discussed on that occasion. Mrs Agnello additionally remembered attending a meeting with Mr Bedi herself when the plaintiff could not, to discuss the state of connection issue. She recalled discussing what was needed from the plaintiff including his “books and diaries” and “that [she] wouldn't be able to provide that; that he would have to get Joe and [Rose] to do that”. She was unable to recall anything further that was discussed.
Mrs Agnello explained that it was her understanding that various criteria needed to be considered to determine the state of connection issue. Mrs Agnello agreed that this issue was the purpose behind Mr Bedi requesting the books so they could determine where the plaintiff worked the majority of the time. Mrs Agnello did not accept that she was advised what the plaintiff would need to establish, rather she “was just told to ask Joe to bring in the paperwork because I was not told either, or it was bring in the diaries and – but I didn't have access to that so I couldn't give that to him at that time”.
Mrs Agnello’s recollection of the mediation conference and other events including the day at court was tested at length. She did not recall any offers made by her husband at the mediation conference. Her recollection was that the insurer made an offer of $400,000 which was not accepted by the plaintiff.
Mrs Agnello accepted that it was possible her memory of events was incomplete.
Mrs Agnello was unable to recall any interactions with the defendant or Mr Muller SC on 5 April 2017, the day prior to the court hearing.
Mrs Agnello stated that the issue of whether the plaintiff was an ACT worker was not raised until the date of the court hearing. She confirmed that it was her understanding that this was the only issue to be determined by the court. She denied that they were given advice that there may also be “a fight” about the plaintiff’s injury which may also affect his prospect of success.
Mrs Agnello conceded that she could not recall many details of the conferences or interactions with the defendant and Mr Muller SC, though insisted that that Mr Bedi had advised them that they had a “99 per cent” chance of success on the state of connection issue.
Whilst Mrs Agnello did not recall advice that they could walk away with nothing that day or they could possibly settle for a certain lump sum, she agreed that they were advised on 6 April 2017 that if the state of connection was determined in the insurer’s favour they could “end up with nothing”. It was her recollection that the offers began as soon as they entered the court foyer.
Mrs Agnello recalled that two, possibly three, offers were exchanged but she was “not 100 per cent”. Mrs Agnello did not agree that nine offers were made. Mrs Agnello did not recall the following events taken from the file note: (a) An offer from insurer for $300,000 inclusive of past of out-of-pocket expenses. (b) A counteroffer from the plaintiff for $300,000 plus of past of out-of-pocket expenses. (c) A counteroffer from the insurer of $350,000 inclusive of past of out-of-pocket expenses by the other side. (d) An offer from the plaintiff for $280,000 plus past of out-of-pocket expenses.
Mrs Agnello recalled a figure of $420,000 including all out-of-pocket expenses towards the end of the exchanges. She conceded that she did not have an accurate recollection of the offers made before the final offer. She recalled Mr Muller SC was making offers on the plaintiff’s behalf and coming back with a counteroffer and obtaining instructions from the plaintiff on how to respond however she did not remember “them going back and forth that many times”.
Mrs Agnello was taken to a file note which read, “very uncertain: re the court outcome today”. Mrs Agnello did not recall this advice though did recall advice to the effect that “you could get what you want or walk away with nothing”. Mr Williams SC suggested that she must have understood that the outcome was uncertain. She recalled something like this being said before the final offer was accepted but did not recall being advised that it was the plaintiff’s “choice”.
She could not recall advice that 10 years of future weekly payments at present-day value was worth about $250,000 nor being advised that there was a limit to the statutory entitlement which did not translate to the value of the actual wage of the plaintiff. She could not recall being advised that private health insurance would be unlikely to pay any future out of pocket expenses. She similarly could not recall anything being said about the public health system, “only about [the] fight against the Canberra Hospital”.
Mr Williams SC showed Mrs Agnello the file note which recorded “[c]lient given instructions $300,000 costs plus and clear of past out of pockets. Witness: RB, Muller, JFL and Catarina [sic]”. Mrs Agnello accepted that she was present while those instructions were given.
Mr Williams SC suggested that “argument re Pik accepted” in the file note from the day indicated that there was reference to the effect of Dr Pik’s report. She could not recall anything about Dr Pik being mentioned on that day. She was unable to recall advice consistent with the file note which recorded that the solicitors were happy to run the case but noted “this is an outcome that will significantly affect [their] life”.
Mrs Agnello agreed the figure of $182,000 for out-of-pocket expenses had been worked out with Mr Bedi prior to the court date. She was aware there were amounts owed to Bupa and Medicare. She agreed that they had sought assistance from the insurer regarding the “high” Canberra Hospital account which had accrued significant interest and stood at “more than $48,000” in April 2017.
Mrs Agnello agreed that they understood that they “could either take [their] chances and run the application which was an all or nothing type result, or [they] could try and settle it for whatever sum the insurer might be prepared to offer”.
To the suggestion that the settled outcome was at the time “more palatable” than the risk of losing altogether, Mrs Agnello stated they “didn’t have any other options”.
Mrs Agnello accepted that they understood they could “run” the case and they may have “got nothing”, because “that’s what was pretty [sic] told us, we would get nothing”. Mrs Agnello acknowledged that the final offer of $420,00 included past out of pocket expenses. She accepted that this was what ultimately led to the request to Mr Muller SC for him to explore if there was room for further negotiation with respect to the amount owed to the Canberra Hospital. She agreed Mr Muller SC attempted to persuade the insurer to take a different approach to that debt, but he advised them that the insurer was not prepared to do anything other than include that debt in past out of pocket expenses. She agreed that Mr Muller SC said he would assist them to address that debt separately.
Mrs Agnello confirmed she understood that the workers compensation insurer was refusing to pay for the physiotherapy as well as any other medical expenses unless and until the state of connection issue had been dealt with or by way of the matter resolving via settlement. She agreed that the financial strain they were experiencing at the time included monies owing on the mortgage but did not include monies owing to a finance company as that was a “totally separate matter” which she said was a business matter, not a personal one.
Mrs Agnello denied the plaintiff had complained of having a sore back pain in the months prior to the toilet incident. Mrs Agnello did not agree that the plaintiff had a whole financial year (2013 to 2014) where he did not work and believed this period was when he started a business, being the Complete Surface Care & Cleaning Business.
Mrs Agnello stated she called the ambulance immediately after the plaintiff had his fall on the toilet. She clarified he was in between the bedroom and ensuite when he was picked up by the ambulance officers. Mrs Agnello said she was told that ketamine was administered to the plaintiff.
Mrs Agnello agreed she went with the plaintiff to the appointment with Dr Pik. She said she told Dr Pik, “he had fallen at work on the Friday and that he collapsed again on the Sunday night and was taken to hospital”.
Mrs Agnello agreed that she and the plaintiff had “possibly” talked about what had happened that weekend over the years. Mrs Agnello agreed that it was “a massive turning point in their life”.
Mr Williams SC suggested to Mrs Agnello that they had managed to convince themselves that this was a work injury, when what occurred was that the incident that caused this problem occurred during the toilet incident. Mrs Agnello disagreed. Mr Williams SC further suggested that there was no incident of any substance that occurred on the Friday before the toilet incident, to which Mrs Agnello replied “[w]ell, Mr Williams, Frank, his business partner, was there when it happened. Frank brought him home on that day and he called me as soon as it happened”.

Mr David Lander was called by the plaintiff as an expert in workers compensation claims. Two reports authored by him dated 31 May 2021 and 8 November 2022 were tendered. The reports considered whether it was likely that the plaintiff would have been deemed an ACT worker and the plaintiffs entitlements under the workers compensation regime.
I do not intend to summarise his evidence to any significant degree as, unsurprisingly given the overall effect of his evidence, the plaintiff did not rely at all on any evidence adduced from Mr Lander.
Mr Lander told the court he was a solicitor and barrister with 32 years of experience. He agreed a large part of his practice was in the Comcare jurisdiction, but a significant portion was also in the area of workers compensation. He detailed the last time he had a workers compensation matter in the ACT jurisdiction was “[t]his year”. Mr Lander agreed that to ascertain a worker’s entitlement to compensation under the Workers Compensation Act, it is first necessary to establish that the ACT was the territory or state of connection for the purposes of employment, which is determined in accordance with s 36B of the Workers Compensation Act. Mr Lander agreed this is determined by three main tests. Mr Williams suggested to him that he had not set out or dealt with any of those three tests in his report, which he agreed “technically, [that is] correct. Substantively, I differ”.
His recollection was that stage one involved consideration of whether there was a connection through employment. He stated he understood that the plaintiff primarily worked on commercial and residential cleaning contracts in the ACT and was injured in the ACT, which established in his mind there was a “clear connection”. Mr Lander’s evidence was this conclusion arose from the first stage of the test. Mr Williams SC suggested that was not the first stage of test. Mr Lander responded: Well, the – the – I don't have the act here, but the act talked about someone who usually worked in a jurisdiction, habitually, customarily, regularly worked in a jurisdiction, and I was provided with instructions that, and I read material that he worked, you know, he worked regularly in the ACT on commercial and residential sites, so I didn't go any further than that because that was sufficient.
Mr Lander denied that was the extent of his analysis, but “it was something which I then took to mean, as I had for 30-odd years, that that created the connection”. Mr Williams SC suggested to Mr Lander that if the answer to stage one of the test was that the plaintiff usually worked in the ACT but may have also usually worked in NSW, it would mean a default to stage two of the test, which Mr Lander accepted. Mr Lander accepted he had not fully explained the process. He agreed that in his report he had assumed the plaintiff fell within the first stage, and that “may be wrong. It may be inadequate. It may not be”. When challenged by Mr Williams SC that he could no longer tell the court that in his opinion the plaintiff would have been satisfied by the first stage in the test to determine if he was an ACT worker, Mr Lander stated: Well, I'm not sure that's right or wrong. I don't know the answer to that because in my 30-something years of practice I'd never had a case where somebody who worked directly in the ACT and was injured in the ACT was ever challenged by any insurer on the grounds of a jurisdictional point, so perhaps my experience had led me to believe that that was sufficient.
Mr Lander conceded he did not identify the accurate test to be applied and therefore did not apply the relevant test in his report. Mr Lander conceded he was not familiar with any of the case law in the area of s 36B of the Workers Compensation Act. Mr Lander conceded he could not recall a case in the “probably 50 to 100 cases” he has done which had a jurisdictional issue.
With respect to the entitlements under the Workers Compensation Act, Mr Lander conceded he made no independent investigations with respect to what was the appropriate weekly figure to use. He assumed the weekly figure was $3,800 per week which “almost certainly would've been above the statutory figure”. Mr Lander agreed that if the plaintiff’s actual weekly earnings were below the statutory floor, then for the first six months the appropriate figure would be a lesser figure than the statutory floor. Mr Lander agreed that the statutory rate he applied, a reduction of two thirds of his ordinary earnings, was incorrect, as the statutory rate was 65 per cent.
Mr Lander conceded he had missed a step in his analysis as he failed to separately analyse the second six-month period. However, he stated that if the plaintiff was totally incapacitated it would not make any difference. Mr Williams SC asked if he had made the assumption the plaintiff was totally incapacitated, which he agreed he had assumed based on the material he was given. He agreed that assumption was necessary to be made before he skipped the second six-month analysis.
Mr Lander agreed that there was no mechanism under the ACT legislation to go to court for adjudication as to the lump sum for weekly payments for an injured worker with respect to the figure available if one commuted their rights, except for in cases where there was permanent impairment. Mr Lander ultimately agreed he was mixing up the ACT workers compensation legislation with what occurs at common law. He agreed he was asked to assess what the plaintiff’s entitlements were under the ACT workers compensation legislation. He agreed there was no entitlement to any lump sum under that legislative framework, nor any circumstance in which a court would go about assessing vicissitudes. Mr Lander agreed that the introduction of the notion of vicissitudes in his expert report was not an accurate depiction of what the plaintiff’s entitlements were. He ultimately conceded he had mixed up his answers in respect of the plaintiff’s entitlements in workers compensation with those potential entitlements at common law.
Mr Lander noted that he had enormous success in the field of workers compensation claims both in the private and public sector. He confirmed that he has only appeared in one or two cases in his entire career which have not settled in respect of the workers compensation scheme. James Bodel
Dr James Bodel, an orthopaedic surgeon, was called by the plaintiff. Dr Bodel prepared three thorough reports dated 9 September 2021, 28 March 2024 and 16 April 2024. These reports made the following diagnoses and prognoses: (a) In his 9 September 2021 report, Dr Bodel concluded that the plaintiff had “a disc rupture at the L4/5 level and also at L3/4 and the aggravation, acceleration, exacerbation and deterioration of the underlying degenerative disc disease in those regions [which was] caused by that accident at work”. Dr Bodel recorded that the plaintiff’s overall prognosis “remains guarded because of the persisting levels of pain following the extensive surgical interventions and the pain management protocols which are mentioned in the body of this report”. The report recorded the injury as occurring when the plaintiff was “moving a heavy piece of machinery when he developed sudden severe pain in the back and right leg pain initially but later some left leg pain as well. He had one more job to do that day and he could not complete that”. (b) In the 28 March 2024 report, Dr Bodel assessed the plaintiff as follows: [S]till has injury arising at the L4/5 level caused by the event at work on 20 May 2016. He now has a much wider spinal involvement and the totality of the causation is for that is not clear to me at this time. As I indicated, extension to adjacent disc disease, one or two levels above or below, I would causally link directly to the event that occurred on 20 May 2016 but I find it difficult to understand why it has extended to such a high level requiring the fusion done recently. Dr Bodel recorded the plaintiff’s prognosis in this report as remaining “guarded” but noted “in fact, it has become worse since I saw him last”. The report recorded the injury as having occurred when the plaintiff was “moving a heavy piece of machinery”. (c) In his supplementary report dated 16 April 2024, Dr Bodel clarified the “subtly different history” recorded for the mechanism of injury. This history now included the plaintiff commencing the task of “cleaning tiles” and as he was coming out of the laundry, he “fell” and “landed” on his “back, like [his] bum”. Dr Bodel opined that medically, both mechanisms of injury are equally capable of causing disc pathology in the lumbosacral junction or the type that the plaintiff suffered. Dr Bodel noted that either mechanism could cause disc prolapse in a man in his early forties, as the plaintiff was, at the time of injury.
Dr Bodel’s evidence in cross-examination was that when he assessed the plaintiff on 9 September 2021, the plaintiff made no mention of a fall with respect to the workplace incident. Dr Bodel confirmed that he recorded initially that the plaintiff had suffered his injury while moving heavy machinery at work.
Dr Bodel gave evidence that he was not informed about the specific detail of the toilet collapse at the time he prepared his initial reports in September 2021 and March 2024. He recorded in those reports that the subsequent “collapse” occurred when the plaintiff attempted a return to work. Dr Bodel agreed that he was not advised by the plaintiff of any error in the history recorded at the time of the second assessment and that the plaintiff confirmed that the history of the injury was correct insofar as it had occurred whilst he was moving a piece of heavy machinery.
Dr Bodel explained that he was advised of a difference in the mechanism of injury in the days prior to giving evidence in the proceedings and he was “asked to write a particular response to a quotation of the account and that's why they're different”. Dr Bodel confirmed he was not provided with any history from the plaintiff of back pain in the two months preceding the injury, noting that he would want a thorough understanding of the nature and extent of that back pain in order to prepare his opinion: If I had been given any inkling that there was anything before the index date that this starts with on 20 May, I would have taken as much index history as I could have to see the significance of the history given as to whether it was a significant history, such as things like did this patient with this history of intermittent problems before need time off work? Did he need to see a doctor? Did he need any investigations? Did he need any treatment? Those issues are really very important to try and quantify the severity of any event that may later occur and I was not given anything to take me down that line of enquiry.
It was suggested by Mr Williams SC that the workplace event occurred on a Friday, and it did not cause the plaintiff to seek any medical treatment at the time to which Dr Bodel replied: That – that appears to be the case until after this further event which I had misunderstood occurred at work but, in fact, it occurred at home. Yes.
Dr Bodel confirmed that he was not provided with any of this background information and noted “it would be lovely to be able to be given as much relevant information to be able to allow me to then go through that mentally and make my decisions medically. I wasn't given that information”.
Dr Bodel was played the surveillance video footage of the plaintiff engaging in work and physical activity recorded in January 2024 after which he expressed a view that the plaintiff demonstrated a good range of physical movement.
Dr Bodel stated, in light of the plaintiff’s pathology and surgical history, he did not think it was wise for him to engage in unrestricted heavy labouring work, however he considered the footage revealed that the plaintiff was clearly physically capable of such work.
Dr Bodel specifically observed in response to footage which captured the plaintiff bending forward with no apparent difficulty: [T]here’s no facial grimacing. No sudden putting of hand on back. There’s no sign that this is causing any trouble at all. And doing the right things, away from his body which is not really a smart thing to do with his spine but he’s doing it.
Dr Bodel agreed that “a picture can tell a thousand words” remarking “particularly when the person who is being photographed is unaware of it”. Dr Bodel stated that the plaintiff appeared in the footage to be “a person of that age doing what a person of that age should be able to do with his age” and “if you didn’t know about the history of what’s going on with his back you’d be – I am surprised that he is capable of this, yes.”
In considering the plaintiff’s more recent surgical intervention Dr Bodel remarked, “it would have been nice if his treating surgeon who did the next surgical procedure had seen this and he might have changed his mind”.
By reference to his 28 March 2024 report where he concluded that “the inherent nature of the work that he was doing is very heavy and inappropriate for his spinal condition”, Dr Bodel conceded that “clearly his mobility is better than I had anticipated at the time”. Dr Bodel went on to conclude that the plaintiff was “clearly capable of more than he would lead me to believe on a face-to-face clinical presentation”.
Dr Bodel accepted that the plaintiff has working capacity and should be capable of most ordinary physical activities. Regarding the recovery, Dr Bodel said: He has had medically a lot of stuff done with his back but he appears to function at a better level than he would lead us to believe. But I would still be very cautious about him doing any of those things that I saw him do there because inevitably the whole structure is going to break down and cause him to be in pain again. He still has the mentality of thinking that he’s bullet proof and that he knows what’s right for himself and I think that’s a misinformed view of his medical condition. So, yes, he can do it but should he, is a different issue, and I believe that he should return to work with some assistance to be careful of how he does work and have some restrictions on his activities to try and prevent a deterioration of his …(inaudible)… Andrew Muller SC
Mr Andrew Muller SC gave evidence regarding his involvement with the plaintiff’s workers compensation claim in his capacity as the barrister engaged by the defendant.
Mr Muller SC was assisted in his evidence by reference to the fee note he had rendered for his involvement in the matter, as well as contemporaneous file notes recorded by Mr Bedi (who was not called to give evidence in these proceedings).
Mr Muller SC recalled a phone call with Mr Bedi where he was seeking guidance on the plaintiff’s claim about the ‘state of connection’ issue. Specifically, regarding the factual matters Mr Bedi ought to be considering in advising the plaintiff about his prospects.
Mr Muller SC gave detailed evidence with respect to the first conference on 16 August 2016. In particular, he recalled enquiries were made of the plaintiff about where his work was usually performed, which was “mostly in the ACT, 20 per cent in surrounding New South Wales which was described as a weekly occurrence, the relevance of the weekly occurrence indication from the plaintiff that it was mostly, being with reference to the habitual and customary aspect of the first limb of the state of connection test”.
Mr Muller SC also agreed that the file note reflected a discussion regarding the plaintiff being an NSW worker and “a prospective negligence claim against the broker who had arranged the insurance, and presumably, had only arranged an ACT policy”.
Mr Muller SC appeared at the dispute resolution conference on 14 March 2017. He agreed that he had reviewed the file note of this date and that it had assisted his recollection. Mr Muller SC explained that based on the material being a five-volume brief, a large amount of work had been done to marshal the factual material which he had asked for in the initial conference. Mr Muller SC recalled being at court for participation in the dispute resolution conference and “discussing the claim with the client and the solicitor, and also with the solicitor for the insurance company”. Mr Muller SC was able to recall having had a discussion regarding the case and issues though could not recall the substance of that discussion without reference to the file note.
Mr Muller SC recalled shortly after arriving at the court having a conversation with Ms Emma Reilly, the lawyer for the insurer, who indicated to him that the insurer was motivated to contest the claim. He recalled a discussion with respect to the s 36B issue and the prospect of seeking a determination on that issue separately to the main compensation claim. His evidence was that these were things discussed in the conference with the plaintiff. He also recalled discussion with respect to the onset of the plaintiff’s symptoms (and the delay in seeking medical treatment after the workplace incident) and the state of connection issue. Mr Muller SC recalled that he advised the plaintiff the “insurer had real reservations about settling the case but that they knew it was prospectively an expensive claim because of the seriousness of the condition that [the plaintiff] suffered from and therefore there was going to be scope, I thought, to get some leverage from the significance of the claim”.
Mr Muller SC recalled discussion with the plaintiff about lump sum figure that he thought the insurer might contemplate and that he explained to the plaintiff the risks associated with accepting a lump sum figure. Mr Muller SC recalled that the plaintiff expressed concerns about to continuing to draw a wage from the business whilst he was not working. Mr Muller SC stated: I do remember that Mr Agnello was under some financial stress and he was anxious to get his payments reinstated or anxious to get some outcome, even if that outcome was a lump sum outcome but he had his own ideas about what he would like in that regard and I can remember giving him some advice about what I thought an insurer might pay in the context of his claim.
Mr Muller SC explained the legislative regime and the operation of the statutory floor, noting the plaintiff would not have “gone up” but would have continued to receive his full weekly wage. Mr Muller SC further explained the file note reflected that instructions were given at the conference to put an offer of $400,000 clear of payments plus costs. He could not recall if it was him, or his solicitor, who advised the plaintiff that it was his decision.
Mr Muller SC explained that he gave advice regarding what the insurer may be prepared to offer if the plaintiff had “jumped all the hurdles”, being an amount in the range of $500,000 to $600,000. Mr Muller SC continued: I expressed a view about the prospects on the section 36B issue and I've mentioned a 70:30 percentage. With injured workers, my usual practice is to say, 'You've got a very strong case' or 'It's finely balanced. It's a 50:50 case'. If I think they've got a better than even case I will usually say 70:30 and it appears that's what I've said here, and that the prospects were reduced because of the injury causation issue and there's a note there about the ACT Health records and Dr Pik's report and that jogs my memory that there was some inconsistency in that material in terms of the history of symptom onset. There were some occasions where a work incident hadn't been mentioned at all. There were differences in the timing of the incident. There were differences in the mechanism of injury and all of those – and there was the issue that I've already discussed about the onset of what appeared to be radicular symptoms whilst at home on the toilet, so they were all factors that were causing me to have some concern about the – about establishing causation even if we got past the – the 36B hurdle.
Mr Muller SC noted the file note reflected the offer put of $400,000 clear of payments plus costs had not seen any response from the insurer. Mr Muller SC agreed that the matter was on 6 April 2017 and that there was a plan to conference with the plaintiff, conference with the Agresta’s and for Mrs Agnello to be “proofed”.
On 30 March 2017 Mr Muller SC had a conference with the Agresta’s and Mr Bedi. Mr Muller SC could not recall the detail of the conference.
Mr Muller SC agreed there was a conference with Mr Bedi and the plaintiff on 5 April 2017, the day prior to the court listing. He agreed Mrs Agnello may also have been present, but Mr Muller SC explained it was his practice to conference the plaintiff separately in the pre-hearing conference. Mr Muller SC agreed that discussions were had with the plaintiff, Mrs Agnello and Mr Bedi.
Mr Muller SC had some recollection of a discussion with the plaintiff regarding the evidence he would give about the state of connection issue. Mr Muller SC recalled by reference to a file note from this date, there was suggestion that there had been an offer made by the insurer in the sum of $200,000 which he assumed was on the same basis clear of payments plus costs and that he had expressed a view he thought they “probably had $300,000”. Mr Muller SC could not recall why he had expressed that view though noted that the plaintiff had expressed a view that sum was not enough on the basis that it was a “hard situation for him that he was spending $650 a month on treatment” and had sought physiotherapy which he could not afford. Mr Muller SC confirmed that there was reference to the plaintiff being told he would not ever return to work.
A notation in the file note of the conference recording the expression “all or nothing” prompted Mr Muller SC to state: Only that that would be entirely consistent with the advice that I give in these cases. That if we were successful in establishing he was an ACT worker we would be passed a significant hurdle in establishing an entitlement to compensation but that if we failed, he was going to be stuck with the New South Wales system which in his case would offer him nothing.
Mr Muller SC confirmed that he had significant experience in state of connection matters having appeared in “a lot of cases dealing with the state of connection issue”. Mr Muller SC articulated a brief history of the state of connection legislation and an understanding of the leading authorities in both other jurisdictions and the ACT. Mr Muller SC gave a detailed account of the matters necessary to establish a state of connection in the context of a workers compensation claim.
Mr Muller SC explained that the file note from 5 April 2017 reflected advice he gave the plaintiff that “it was his decision” observing the following: [C]onsistent with what I said earlier about the 70/30 prospect, that I expected to satisfy the court that he was an ACT worker, that if that happened, I anticipated another fight before they would start paying and that is a reference to the – the residual causation issue. And I've made the observation that if we get past the state of connection hurdle, you may be in a better position in terms of negotiating a lump sum settlement. At the bottom of that page, I don't know what that is but if it's advice to the effect that in New South Wales he'd be entitled of a maximum of two years' payments and medicals and all that, that may have been the case if he qualified as being entitled to compensation in New South Wales but there was the insurance issue I've mentioned already.
Mr Muller SC was confident (consistent with the file note) that the best argument for the plaintiff was there being “no ‘usual base’, get through the ASIC principal place of business issue and drop down into having an entitlement on the basis of the injury happening in the ACT”.
In respect of the $300,000 that Mr Muller SC had suggested the insurer “probably had”, he confirmed that he explained to the plaintiff that it would be a good figure for him if he had intensive treatment and was able to get back to work in twelve months. Mr Muller SC observed this was consistent with the usual advice he would give clients in these kinds of situations, explaining: [W]here a particular lump sum is offered, you know if – turned it into equivalent years of payments and then say, all right, well, if you’re – if you’re still off work and injured in ten years, you’re going to be behind by taking the lump sum. If you’re back at work in a few years, you’re going to be ahead.
Mr Muller SC recalled that the plaintiff had calculated his own figures and had advised that he had full drawings of $1,500 a week. Mr Muller SC observed “the information before me didn’t reflect anything like that by way of drawings and there was then a discussion where I explained that that didn’t reflect the way the legislation worked”. Mr Muller SC noted that he explained to the plaintiff that realistically, a lump sum of the kind the plaintiff sought was not going to be offered in this case. Mr Muller SC was confident that he explained to the plaintiff that a settlement involved a “balancing exercise” and “transfer of risk”. Mr Muller SC explained that cases such as the plaintiff’s always necessitated advice that there was no guarantee of a ‘win’.
Mr Muller SC stated that on 6 April 2017 the plaintiff, Mr Little and Mr Bedi were seated in the public area of the Magistrates Court. He recalled “talking to them and to the client and getting instructions and going backwards and forwards and negotiating with Mr Pilkington who turned up for the insurer”. Mr Muller SC recalled the matter resolved for $420,000 plus costs, clear of payments.
He further recalled there was discussions, consistent with those that had occurred previously with the plaintiff, that there was “real uncertainty” about the outcome, the opportunity to resolve on a lump sum basis and have some certainty, and the risk of proceeding with the application and that the plaintiff might “walk away with nothing”.
Mr Muller SC observed the file note was consistent with this advice was given and that the plaintiff understood that the outcome was very uncertain and that it was his choice as to which pathway the matter took.
Mr Muller SC noted that there was, consistent with his practice, a recording in the file note of the value of ten years’ worth of payments being just $250,000. He recalled he would usually perform “a net present value calculation to get those figures so some discounting for the fact that the money is turning up today rather than being meted out over the years to come”. Further, he recalled there was some advice given to the plaintiff about the plaintiff’s medical issues noting that it was known that the plaintiff was not at the end of his treatments (and there was treatment that he expected he was going to need and wanted to have). Mr Muller SC recalled discussion about whether the plaintiff could access the public health system for future treatment.
Mr Muller SC noted that there was a recording of a series of settlement offers on the file note, which was consistent with his memory that there was some “toing and froing”. He agreed negotiation proceeded in a short space of time resulting in the settlement of the claim for $420,000. He recalled instructions were provided to make an offer of $300,000 clear of payments but also clear of the outstanding medical expenses to the Canberra Hospital. Mr Muller SC recalled some discussion of about exploring with The Canberra Hospital a waiver of their fees, noting the plaintiff had an unsatisfactory outcome from his treatment there and ended up having further treatment at St Vincents Hospital.
Mr Muller SC recalled that at the time of settlement, the two issues, namely the state of connection and causation were “live”. He explained this was: [N]ecessarily because parties can't, by agreement, resolve a state of connection issue. It is a matter for determination by the court.
Mr Muller SC confirmed the Agnello’s were being appraised of the offers going between the parties and providing instructions accordingly. He also recalled that there had been advice given at the end of settlement discussions about the ‘risk transfer’ involved in the exercise. Mr Muller SC was confident that the plaintiff was provided with advice, which clearly communicated to him that it was his choice whether to settle the claim, that there were risks involved in resolving his claim by lump sum settlement and the meaning of the lump sum in compensation terms.
In cross-examination, Mr Muller SC explained that once he was briefed in the matter and had received the brief material, he was comfortable he was on top of all the critical issues for the purpose of the state of the connection issue that was going to be “hived off” in advance of the dispute resolution conference.
Mr Muller SC agreed that the state of the connection issue was one primary issue in the proceeding, and whether the injury occurred in the course of work was essentially raised in the answer filed by the respondent in those proceedings. He agreed these were the two issues in his mind when he was briefed. He agreed the question of commutation of future rights was often a consideration.
Mr Muller SC gave extensive evidence that he would expect that the defendant had given proper advice and taken instructions on any matter which appeared relevant to those issues. Mr Muller SC confirmed that the defendant was to give advice on both the s 36B issue and the causation issue.
Mr Muller SC did not accept that a client would always require written advice. He expressed a view that this “depends very much on the client”. Mr Muller SC stated that in the case of this particular plaintiff he did not consider that the provision of written advice was appropriate based on his interactions with the plaintiff.
Mr Muller SC agreed that an opinion suggesting the plaintiff’s medical situation had not stabilised (such as the opinion contained in the Sergides report) was something which the plaintiff needed to understand and consider in the context of weighing the risks involved in lump sum settlement: Mr Lloyd SC: It would be necessary for the solicitor who had the views expressed in the 12 March email and who knew about the contents of Dr Sergides to give clear 25 advice about the risks posed to Mr Agnello by commuting forever all of his rights. Do you agree with me? Mr Muller SC: It would be necessary for Mr Agnello to have a clear understanding of the fact that if he commuted his rights he was giving up any prospective entitlements, yes. If that’s what you’re asking, yes. I agree. Mr Lloyd SC: No. And in circumstances where the solicitor with carriage had the view that his condition was seriously unstable and that view had been confirmed by the report of Dr Sergides in effect. That he hadn’t plateaued. That would have to be conveyed to him by the solicitor with that knowledge, wouldn’t it? Mr Muller SC: It would be important for him to understand the risk in that context. Yes. Mr Lloyd SC: Because multiple times here there’s references in the note, and you’ve mentioned it yourself, where may I say quite proper advice is given, ‘It’s your decision.’ Because cases start by parties, every decision made in the litigation is theirs. Correct? Mr Muller SC: Yes. Mr Lloyd SC: Including when to commence and to terminate. The job of the lawyers, tell me if you agree, is to make sure when the client is making those decisions, it’s made on a fully-informed basis? Mr Muller SC: Yes.
In responding to questions about the significance of certain matters to the success of the plaintiff’s claim Mr Muller SC observed: And I think the other thing I do need to say at this point, and it is not an unusual experience, but my assessment of Mr Agnello's evidence on this topic was that it evolved as his understanding of the importance of some of these matters evolved.
Mr Lloyd SC challenged Mr Muller SC on this observation and Mr Muller SC confirmed this was his impression of the plaintiff: Mr Lloyd SC: Mr Muller, you don't have a actual recollection of what you just said? Mr Muller SC: I – I do.
Mr Muller SC agreed that the statutory declaration from Mr Agresta as an “eyewitness” to the work injury might have corroborated the mechanism of injury the plaintiff had described in considering the causation issue. However, he made clear that the significance of Mr Agresta’s version “would depend on what version of the injury event the plaintiff gave” noting “there were different versions of the circumstances in which symptom onset occurred from Mr Agnello. Different to that version”.
Mr Muller SC accepted that the statements of Mr and Mrs Agresta may have been “helpful in the contest under s 36B with reference to the criteria” but observed it was not the mere existence of the statements but rather the substance of their accounts which may have been of assistance to the plaintiff. Mr Muller SC noted the statements made by the Agresta’s prior to their conference with him 2017 did not automatically strengthen the plaintiff’s case.

The plaintiff objected to the defendant testing the plaintiff’s account that his injury arose from an incident at work. The objection to the “spirited attack” upon the plaintiff was on the basis that, in effect, the defendant was alleging a fraud by the plaintiff in presenting himself to the Industrial Court in 2017 and to this Court as having been injured at work when he pursued the workers compensation claim. The plaintiff relied on the absence of a specific pleading with respect to fraud (and accordingly, a lack of fair notice) and further submitted that the evidence was not relevant to the issue of causation. I do not agree.
There are several matters to observe.
First, a contest as to the injury arising out of the plaintiff’s employment was identified in the answer by the insurer filed in 2017 to the plaintiff’s workers compensation claim. Whilst it can be readily accepted that ‘fraud’ was not part of the filed defence in this matter, the defendant has never conceded that the back injury suffered by the plaintiff arose from an injury he suffered while at work.
In circumstances where the defendant did not admit that the back injury relied upon as the foundation for the plaintiff’s workers compensation claim arose from an incident at work, the plaintiff’s capacity to have established that aspect of his claim is a matter the defendant was entitled to test in these proceedings. As the defendant pointed out, the mechanism of injury was a matter directly relevant to the insurer’s denial of liability arising, at least in part, from the 2016 report from Dr Pik. That there was to be some contest as to that aspect of these proceedings in my view should not have come as a surprise to the plaintiff. I do not consider that this approach by the defendant “is or is tantamount to a case that the plaintiff falsely brought his case in the Industrial Court (and in this Court) by contending that he was injured at work when he was not”.
The defendant submitted that in coming to assess causation for the purposes of these proceedings the plaintiff must establish on the balance of probabilities that he suffered a work-related injury; an aspect of the 2016 claim which was fundamental to the success of his workers compensation claim. In support of this submission, the defendant cited a decision which the plaintiff also referenced, Sharif & Ors v Garrett & Co (a firm) [2002] 1 WLR 3118 at 3124-3125 (per Tuckey LJ with Simon Brown and Chadwick LJJ agreeing) as setting out the applicable principles in a case such as this relevantly as follows: The legal burden lies on the plaintiff to prove that in losing the lost opportunity to pursue his claim, he has lost something of value i.e. that his claim (or defence) had a real and substantial rather merely negligible prospect of success… … If and when the court decides that the plaintiff’s chances in the original action were more than merely negligible, it will then have to evaluate them. That requires the court to make a realistic assessment of what would have been the prospects of success had the original litigation been fought out.
Part of the task in coming to assess the plaintiff’s case for negligence against the defendant, in order to assess causation, requires consideration of the capacity for the plaintiff to establish a fundamental pillar of his case, namely, that he suffered a work-related injury. The variation in accounts given by the plaintiff as to the mechanism and circumstances of injury was a matter known to Mr Muller SC and to the defendant in circumstances, where on the plaintiff’s own account, there was a fall in the toilet some days later which precipitated his admission to hospital, as well as a variation in the mechanism of injury that he had provided and a denial of any traumatic event once in hospital.
Additionally, variations in the plaintiff’s account were not confined to a specific period or circumstance, for example, the days after his emergency transfer to hospital on 23 May 2016. Dr Bodel’s evidence and other versions subsequent to those initial record of the plaintiff’s account (that might have been explained by pain, medication and other considerations; a matter to which I will come) provided a basis to conclude that the plaintiff’s version (some of which were closer in time to these proceedings) featured variations. That evidence was relevant to an assessment of the plaintiff’s credibility and reliability.
I do not accept that in testing the capacity for the plaintiff to establish that the injury was work related the defendant was seeking to establish that the defendant had brought his workers compensation claim falsely or fraudulently. In my view, the line of questioning (and the answers adduced) which sought to test plaintiff’s capacity to establish that the injury to his back arose from a work-related incident on 20 May 2016 was relevant to the plaintiff’s credibility and to the question of causation and/or damages.
To the extent that it was necessary to plead the contest about the establishment of the injury as arising from the plaintiff’s work, I am satisfied that the defendant did so and accordingly there was no unfairness to the plaintiff. The filed defence necessarily put into issue the establishment of the plaintiff’s injury as work related. This cannot have been a surprise to the plaintiff because it was in issue in 2017, made plain in the plaintiff’s statement of claim where it was identified that the ‘Answer by Respondent’ filed on behalf of the insurer on 9 January 2017 denied that the “plaintiff had suffered any injury arising in the course of his employment”.

The plaintiff’s recall of many significant events was limited. Where he did recall events, his recall of the detail of those events was consistently poor. Even allowing for the passage of time and what I accept is a history of numerous consultations with medical professionals over some years, a review of his evidence revealed his memory to be incomplete and/or inaccurate.
My strong impression of the plaintiff’s evidence was that where there were gaps in his memory that he perceived to be significant for his case, he was prepared to deliberately contour his version to advance his position in these proceedings. For example, in response to a question he would initially have limited recall or invoke numerous medical consultations as explanation for his limited recall and when pressed for detail he would give a version he perceived to be advantageous to his position in this proceedings or that sought to undermine the weight of matters recorded in contemporaneous records. When confronted with conflicting accounts, the plaintiff would invoke poor memory, explain it as the fault of the person who created the record or be unable to explain the apparent conflict.
In cross-examination Mr Muller SC said, “my assessment of Mr Agnello's evidence on this topic [the state of connection issue] was that it evolved as his understanding of the importance of some of these matters evolved”. When challenged about whether this was an actual memory of the plaintiff, Mr Muller SC insisted it was. There was no basis for me to reject Mr Muller SC’s observation in this regard. Indeed, it was consistent with my own impression of the plaintiff as a witness.
The following exchange with Mr Williams SC in cross-examination is an example of the observations I have made: Mr Williams SC: And over the page, the second paragraph, ‘I've been quite frank with Mr Agnello and his wife today that I do not feel that further surgery is likely to substantially improve the situation, and yet I feel compelled to offer him the benefit of the doubt’? The plaintiff: Yes. Mr Williams SC: So you were pressing Dr Cree to conduct further surgery in the hope that that might help, weren't you? The plaintiff: He actually said he wouldn't be able to tell until he went in how was it fused after the surgery. That was his words. Mr Williams SC: But you were pressing him to conduct further surgery notwithstanding the advice he was giving you? The plaintiff: No, he asked me to go back to Dr Winder to give him the benefit of the doubt and Dr Winder said, 'I believe I've done everything,' and then Dr Cree said, 'It's a gamble but we won't know until we go in.' Long story short, I wasn't fused properly. Mr Williams SC: Can we go then, please, to page 501? This is another report of Dr Andrew Cree of 7 June 2023? The plaintiff: Yes. Mr Williams SC: And you'll see that he's reporting to your general practitioner, Dr Yates? The plaintiff: Yes. Mr Williams SC: And then in the second last paragraph, ‘I think any decision to extend the fusion here would be extremely unpredictable with regard to outcome’. Do you see that? The plaintiff: Yes. Mr Williams SC: ‘Plainly, there is a pattern here of repeated spinal surgical undertakings with some improvement in overall stance, mobility and symptoms but the likelihood of improving him at this stage with extension of the fusion to the sacrum is unpredictable, at best’? The plaintiff: Yes. Mr Williams SC: ‘Furthermore, with a history of previous synovial cyst formation at L1-2, if we were to extend the fusion to the sacrum at some stage, we would anticipate having to further extend the fusion proximal as well’. Do you see that? The plaintiff: Yes. Mr Williams SC: Down the foot of the page, ‘As previously, I've tried to slow down this pattern of repeated spinal surgical undertakings and do not think a period of further observation is appropriate’. Do you see that? The plaintiff: Yes. Mr Williams SC: It's the case, isn't it, that you were informed by Dr Cree or your GP that Dr Cree didn't want to offer any further surgical solution by June of 2023? The plaintiff: No, he said if – he'd – he'd probably have to do one every year. He actually told me that I'd have a long relationship with him. … Mr Williams SC: The substance of what he told you is that he didn't think that repeated spinal surgical intervention in the future would be a good idea? The plaintiff: No, he told me to go get another opinion.
Again, in cross examination, the plaintiff, having previously described in examination in chief that the incident when he was working and injured on 20 May 2016 occurred at the point where he had performed a “quarter” of the job, there was this evidence: Mr Williams SC: Just back to the day you say you had the fall at work, 20 May 2016, was it the beginning of the job or the end of the job when you say the fall occurred? The plaintiff: I think it was probably in the middle of the job. Wasn't much to go to finish. Mr Williams SC: Do you realise that you've told me – that you told your barrister when he was asking you questions that it was a quarter of a way into the job, at transcript 248? The plaintiff: I don't remember. Mr Williams SC: Do you remember you told me that you'd just about finished the job, at transcript page 127? The plaintiff: It's going back a long time now.
The plaintiff did not accept that Mr Muller SC and Mr Little advised him of that, which I am satisfied was recorded in the contemporaneous files note, consistent with Mr Muller SC’s recollection of the advice provided, namely that the outcome on 6 April 2017 was “very uncertain”. The plaintiff described being “gobsmacked” because he thought they were going to court. At the same time the plaintiff accepted that he understood that the state of connection issue was “all or nothing” and he provided instructions to settle his claim.
The inescapable conclusion from the surveillance footage and Dr Bodel’s evidence is that the plaintiff deliberately exaggerated the nature and extent of his injury and its effect upon his physical capabilities to Dr Bodel. This was devastating to the plaintiff’s reliability as a witness.
Mrs Agnello was unable to recall many significant events in detail. In some instances, her memory was substantially inaccurate for example with respect to what occurred at the mediation conference (on 14 March 2017) and whether an offer was made by the plaintiff.
Neither Mr nor Mrs Agnello were able to recall the substance of some matters that were uncontroversial. For example, some of the advice that it can be accepted that they received. This was made plain not only in those matters recorded in the uncontroversial contemporaneous file notes but in a careful review of their evidence as to what they understood to be the issues raised by the workers compensation claim and in these proceedings.
Notwithstanding the difficulty they had with respect to recalling specific detail about significant events in the history of the workers compensation claim and advice they did receive both Mr and Mrs Agnello were certain about advice they did not receive. The reliability and accordingly the strength of their evidence as to the advice they did not receive from the defendant was significantly undermined by their failure to recall matters about which they were undoubtedly advised.
The effect of the video footage on the plaintiff’s reliability and credibility was significant. At the very least the footage revealed that he had understated, to a significant degree, his physical capability to, at least, Dr Bodel. This was done in circumstances where Dr Bodel was called in furtherance of his position in these proceedings.
Dr Bodel recorded the following observations about the plaintiff in his September 2021 report: He struggles with all the household maintenance and cleaning activities. He cannot do the garden or the lawn. He has increasing backache and right left buttock pain at this point and also on extension with a reduced range of lateral bending to the left. …he has difficulty even walking.
Dr Bodel observed in his March 2024 report: He struggles with all household maintenance and cleaning activities and has not been able to return to work. …. He is uncomfortable throughout the interview and rises slowly from the chair. He is quite severely incapacitated for engaging in social and leisure activities because of the residual effects of injury following the extensive spinal fusion. He cannot engage in any activity that requires body contact or bending, twisting, heavy lifting, running or jumping.
In evidence, the plaintiff explained that he performed the physical activities the video footage captured him engaging in, with pain.
I am conscious that it can be difficult to observe pain or discomfort which may attend to the performance of a physical task. But the fact is that the plaintiff did not report to Dr Bodel that he maintained a range of physical ability but could only perform physical tasks within that range with pain or discomfort or at a cost to his capacity to recovery from performing those tasks. Dr Bodel’s reports recorded that the plaintiff struggled to physically perform, or in some cases could not perform at all, many of the tasks he appeared to perform with physical ease in the video footage. Dr Bodel also observed an absence of indications in the plaintiff’s physical presentation in the surveillance footage which indicated the absence of pain or discomfort.
The plaintiff’s evidence was that the duties he was captured performing in the video footage were the tasks that he would perform when he assisted with the food van. He also stated that having performed those tasks on one day, he would perform them again the next day if required.
The inescapable conclusion is that the plaintiff was not entirely honest or accurate in his report to Dr Bodel as to the effect of his injury on his physical capacity noting the video footage was captured within months of Dr Bodel’s final report. Dr Bodel observed, “he's clearly capable of more than he would lead me to believe on a face-to-face clinical presentation”. This was a matter which undermined the plaintiff’s credibility and reliability to a significant degree.
I accept that there may be limited evidentiary value in an account provided by a person at a time when they were in significant pain or under the effect of medication for the reasons set out in Mason v Demasi [2009] NSWCA 227 per Basten JA at [2]. At [3], his Honour observed: The fact that, in the present case, none of the health professionals was called to give oral evidence as to the matters in issue may not itself be a point of significance. It is unlikely that cross-examination would have advanced any issue in dispute; the witness being likely to have no relevant recollection of taking the history, the oral testimony would largely be limited to an assertion of usual practice.
In this matter, it was not only reports and/or accounts that the plaintiff gave to health professionals proximate to his admission to hospital after his collapse in the toilet in May 2016 which bore out variations and inconsistencies in his account. Variations in the plaintiff’s account can be found beyond the plaintiff’s initial presentation to hospital when he was in pain and under the influence of medication. Indeed, Dr Bodel recorded in his reports (which he confirmed he compiled in part through oral interview with the plaintiff) many years after the 2016 injury that the plaintiff suffered his injury when he was moving a piece of machinery while working. This was consistent with other descriptions the plaintiff gave as to the mechanism of his injury.
Dr Bodel was unaware that there had been an incident on 23 May 2016 where the plaintiff collapsed at home in the toilet which was the event that saw him transferred to hospital by ambulance. Dr Bodel explained that he was made aware that this event had occurred at home after the plaintiff gave evidence in these proceedings. The toilet collapse was not an insignificant event in the plaintiff’s history.
Added to this was the positive assertion by the plaintiff to medical professionals once at the hospital that there had not been “any trauma” which would have contributed to his presentation to hospital after his collapse in the toilet; days after the workplace fall was said to have occurred.
The evidence revealed that the plaintiff persistently varied in his account of how his injury occurred though he insisted in evidence in these proceedings that he clearly remembered a fall as the mechanism by which his injury was caused in 2016.
Variations in the plaintiff’s account can be found in the following material: (a) Ambulance records from the plaintiff’s transfer to hospital on 23 May 2016 recorded that the “[patient] denies any lifting heavy objects [and] has had a sore back for some time”. (b) Queanbeyan District Hospital records from his May 2016 admission included that the plaintiff “denies any trauma. Started yesterday afternoon as a niggly pain and took two Nurofen”. They also recorded that the plaintiff “denies any lifting, twisting or holding heavy object” as well as “there was occasional lower back pain in the two months preceding presentation” and that there was “No lifting/twisting/heavy objects, no trauma. No red flags. Notably, he had occasional lower back pain in 2 months preceeding [sic] this presentation”. (c) The early injury notification form completed on 2 June 2016 whilst the plaintiff was in hospital with the assistance of Mr Martin recorded the ‘cause’ of the injury as the plaintiff “pulling the wand on steam cleaner/handling unit”. Mr Agresta was not identified as a witness to the incident, instead “n/a” was inserted in the section of the form which required the details of any witnesses. (d) The employee’s compensation claim form completed on 2 June 2016 by Mr Martin and signed by the plaintiff recorded that the injury occurred when the plaintiff was “unloading and using floor cleaning machinery”. The section of the form which requested the identification of any witnesses was left blank. (e) The employers report of injury claim form completed on 2 June 2016 with the assistance of Mr Martin recorded the injury as occurring when the plaintiff was “using machinery/unloading machinery from van truck”. Mr Agresta was not identified as a witness to the incident, instead “n/a” was inserted in the section of the form which required the details of any witnesses. (f) The record of the plaintiff’s initial contact with the defendant on 24 June 2016 recorded that the plaintiff advised that he “was cleaning tiles with a machine, while working he noticed sharp pains in his back and leg. Joe stopped working and took it easy for the rest of the day. At approximately 3am Joe went to the bathroom and collapsed while urinating, feeling stabbing pains in his leg and back”. (g) The plaintiff’s general practitioner, Dr Yates, recorded the workplace incident as having involved the lifting of a tile cleaner. Dr Yates made no record of the plaintiff falling. (h) Dr Pik, after a consultation with the plaintiff, recorded in his report of 10 June 2016 that the injury occurred when “he was using the bathroom about three weeks ago when he experienced a sudden onset of a very severe low back pain that dropped him to the floor”. Dr Pik’s report did not record an incident which had occurred at work on 20 May 2016. (i) The report of Dr Sergides on 6 February 2017, obtained in support of the plaintiff’s workers compensation claim, made no mention of the incident at work involving a fall. The injury was attributed to “twisting” and “rotating” that the plaintiff engaged in when operating a ‘spinner’ machine. (j) Dr Bodel’s reports (September 2021 and March 2024) did not record the workplace incident involving a fall.
The plaintiff explained the absence of ‘a fall’ from records which documented his injury as error on the part of the creators of the records suggesting in some cases that the authors of the records were simply “completely wrong”. The plaintiff, for example, was adamant that he informed Dr Pik about a fall whilst accepting that he did not have a “clear recollection” of his interaction with Dr Pik. I add here that Mrs Agnello suggested that she also told Dr Pik that the plaintiff fell over at work. It is difficult to accept that Dr Pik would entirely omit such a significant detail in a report he prepared in June 2016 which was to be provided to the plaintiff’s workers compensation insurer had both the plaintiff and Mrs Agnello reported the circumstances to him as they described.
The plaintiff accepted that the report of Dr Yates was to support his workers compensation claim and that Dr Yates had taken a history from him to ensure that the circumstances of the injury were accurate. The plaintiff was unequivocal that any suggestion that his injury occurred because of him lifting something would be completely inaccurate.
The workers compensation documentation completed by Mr Martin on 2 June 2016 on the instructions of the plaintiff did not record Mr Frank Agresta as a witness and did not describe the workplace incident as a fall. Mr Agresta was not nominated as a witness. The plaintiff insisted in evidence that Mr Agresta was an eyewitness to his fall and could not explain the variations contained in the documentation completed by Mr Martin on his instructions.
I am mindful of the caution necessary when assessing the significance of variations in accounts recorded by medical professionals who may be unaware of a need for precision or accuracy or the necessity of the inclusion of particular details for the purposes of future legal proceedings. I also bear in mind the effect of pain and/or medication on a patient providing the account. But the overwhelming effect of the evidence in this case is that numerous medical professionals as well as others (Mr Martin, for example) who were specifically tasked with taking an accurate history from him for the purposes of understanding his position with respect to workers compensation did not record a fall as the mechanism of injury. The plaintiff’s explanation that his description of the incident was simply and consistently recorded inaccurately by others cannot be accepted. The overwhelming effect of the evidence demonstrating variations in the plaintiff’s account is that the plaintiff inconsistently reported the mechanism of his injury.
I have taken all these matters into account in assessing the reliability and credibility of the plaintiff. I have also taken into account that there are records in which the plaintiff did assert a fall to be the mechanism for his injury. But the effect of the plaintiff’s failure to be completely frank with Dr Bodel (which can be the only conclusion of the effect of Dr Bodel’s evidence) and to consistently report the circumstances of his injury, combined with the other features of his evidence which I have identified leads to a conclusion that he cannot be relied upon.
The existence of records which corroborate the version he came to give about a fall cannot overcome the overwhelming effect of the evidence which demonstrated his inconsistency as the narrator of the circumstances of his own injury. Where the plaintiff’s account is not corroborated by other evidence, I have formed the view that he cannot be relied upon.
I am not satisfied that I can rely on Mrs Agnello to corroborate the plaintiff’s evidence.
Mrs Agnello’s recall was incomplete; a matter she readily conceded. Whilst I do not consider that Mrs Agnello deliberately contrived a version of events she considered most beneficial to her husband’s case, in my view, her evidence with respect to the advice given (or not given) by the defendant cannot be relied upon.
Despite Mrs Agnello’s concession that she had limited recall of specific detail of many of the events, like the plaintiff, she was definitive when it came to matters which were not the subject of advice. Her recollection of matters that she claimed were not the subject of advice was inconsistent with the understanding her evidence revealed that she had about the substantive issues in the workers compensation claim.
She demonstrated a preparedness when she did recall specific advice given to the plaintiff to recall it in a way that was favourable to the claim subject to these proceedings and which was contradicted by other evidence. The following exchange in cross examination bears out this observation. It occurred after Mrs Agnello recalled that Mr Little told the plaintiff in her presence that if they went into the courtroom on 6 April 2017 “they would end up with nothing”: Mr Williams SC: No one on that day told you were going to lose the state of connection issue, did they? Mrs Agnello: No, he said, 'If you lose.' Mr Williams SC: And you understood the advice to be that if you lost the state of connection issues you could end up with nothing? Mrs Agnello: Correct. Mr Williams SC: And you understood from what Mr Muller and Mr Little were saying to you that they couldn't guarantee you success on the state of connection issue? Mrs Agnello: Well, we didn't even get to go in there to establish that. Mr Williams SC: I appreciate that but what they were saying to you was that they couldn't guarantee success for you on the state of connection issue? Mrs Agnello: So – yes. It was a all or nothing. Mr Williams SC: Yes. And there were – you were advised that you could – the possibilities could be that you would walk away with nothing, or you could settle for a certain sum that day? Mrs Agnello: That was our final ultimatum. Yes. Mr Williams SC: Well, that was what the subject of advice before your husband gave instructions to make offers, I suggest? Mrs Agnello: That was the final – that was their final word. Not prior. Not – that was their final word. Mr Williams SC: Well, what I'm suggesting to you is you haven't remembered all that's occurred that day. Is that possible? Mrs Agnello: I remember that was their final words. It is all or nothing. You take this offer or if we go into that court room, you will most likely end up with nothing. Mr Williams SC: No, you could - - - ? Mrs Agnello: Or you could end up with nothing. Mr Williams SC: Yes. Now, that might be their final words, but I just want to - - -? Mrs Agnello: They were their final words. Mr Williams SC: Okay. Taking you back to earlier in the day, okay. Do you understand? Before offers are being made. Do you understand that I'm taking you back in time on that same day? Mrs Agnello: Okay. Mr Williams SC: And I want to suggest to you that before those offers were made, you were told that you could walk away with nothing that day or you could settle for a sum certain that day? Mrs Agnello: I don't recall that. I recall that the offers started as soon as we pretty much got into that court room – into the foyer, sorry. Mr Williams SC: And at some stage you were told, I suggest, that by way of example, 10 years' worth of future income stream for incapacity would amount to something in the order of $250,000? Mrs Agnello: I don't recall that at all. Mr Williams SC: You were told that so far as future treatment expenses were concerned, it's likely that Bupa wouldn't pay but you might have some possibility of getting them paid in the public system? Mrs Agnello: I don't recall that at all. Mr Williams SC: How many offers do you remember being exchanged that day? Mrs Agnello: I believe there were two offers. Three, possibly. I'm not 100 per cent. Mr Williams SC: I want to suggest that there were nine offers exchanged that day. Does that accord with your recollection? Mrs Agnello: Not at all.
Where the evidence of Mrs Agnello and the plaintiff as to the advice provided to them by the defendant is not supported by the contemporaneous file notes or the evidence of Mr Muller SC, I am not satisfied that I can rely upon it.

The defendant submitted that the plaintiff should not be permitted to expand his case beyond that which was pleaded case in the statement of claim, namely a failure to give proper legal advice.
Specifically, the defendant submitted that the following contentions advanced by the plaintiff in his closing submissions were not available in light of the case pleaded in the Statement of Claim: (a) That the s 36B ‘state of connection’ issue was conceded by the insurer on 6 April 2017. (b) That there were three distinct issues the defendant was required to advise the plaintiff about, which included taking all reasonable steps to initiate action or undertake enquiries in order to advance and protect the plaintiff’s issues. Those three issues were, namely: (i) The legal and factual considerations arising in relation to the state of connection of the accident to the ACT; (ii) The workers compensation insurer’s contention that the plaintiff was not injured at work on 20 May 2016; and (iii) The question of the factors relevant to the commutation of the plaintiff’s right to compensation. (c) That the defendant was duty bound to give advice about the relevant test with regard to the state of connection issue, advise Mr Muller SC about the statements of Mr and Mrs Agresta, and seek instructions about any factual matters that the plaintiff could have assisted with in respect to that question. (d) That the moment the plaintiff started receiving advice about commuting his rights, the defendant was required to give full and proper advice about the evidence available on the causation issue, which also required assembling the relevant material and evidence.
The Statement of Claim put the plaintiff’s case in the following terms (noting the case against Mr Muller SC was abandoned): 96. Prior to making the further offer, the Barrister, the Senior Solicitor nor the Junior Solicitor give any, or any proper, advice to the Plaintiff on: a. the prospects of success in the proceedings in light of the material available at that time; b. the categories of and extent of his potential entitlements pursuant to the [Workers Compensation Act]; c. that in the event he was not an ACT worker, he would be able to claim against the Nominal Insurer under the workers compensation scheme of New South Wales; d. the categories of and extent of his potential entitlements pursuant to the [Workers Compensation Act 1987 (NSW)]; e. the matters in the Sergides Report most relevant to assessing his potential ongoing needs; f. the risks of settling the claim and commuting his entitlements when his condition had not yet stabilised; g. alternatives to settling the claim and commuting his entitlements, including the opportunity to settle part of the claim or adjourn or discontinue the proceedings until his condition stabilised; or h. The payment of the plaintiff’s legal costs.
The function of pleadings and particulars can be readily accepted: see Dare v Pulham [1982] HCA 70; 148 CLR 658 at [6].
Turning first to the s 36B alleged state of connection concession. In his opening, Senior Counsel for the plaintiff referred to a file note from 6 April 2017: One of the things which it appears occurred on this day which might be thought to be significant appears from page 500 of this note where it appears, at least, in writing that the section 30B [sic] issue was conceded by the [insurer] at 10:35 on the day, that is, one of the two liability issues was the subject…of a concession. (Emphasis added.)
In reply, Senior Counsel for the defendant submitted: I just wanted to touch on…the two issues that were standing in the plaintiff’s way in terms of liability. And from the defendant’s point of view, both were alive and remained alive at the time this matter was settled. Your Honour has been shown some handwriting. Your Honour will hear some more about the handwriting, but your Honour should not necessarily assume that my friend’s interpolation of the handwriting is correct.
It was apparent from the openings that whether the state of connection issue had been conceded by the insurer was a matter the defendant understood to be in issue. Further, in Mr Muller SC’s examination-in-chief, Senior Counsel for the defendant put to Mr Muller SC: Mr Williams SC: So as far as you’re aware, was the two issues of causation and state of connection still alive at the time the matter was settled? Mr Muller SC: Yes, necessarily because parties can’t, by agreement, resolve a state of connection issue. It is a matter for determination by the Court.
The conduct of the case for the defendant revealed an understanding that the alleged concession was a matter the plaintiff would seek to rely upon. I am satisfied that the defendant had fair opportunity to appreciate this aspect of the plaintiff’s case in so far as it formed part of the failure to give proper advice.
It is convenient to deal with the alleged ‘concession’ at this stage as it became a significant feature of the plaintiff’s case. The alleged concession made by the insurer was a matter that the plaintiff was required to prove and not a matter for the defendant to explain or disprove. The plaintiff submitted that the inescapable conclusion from the file note, which he suggested could only be read as “s. 36B issue conceded by respondent”, was that on 6 April 2017 the insurer conceded this aspect of the plaintiff’s claim.
I have carefully reviewed the handwritten file notes. The first thing to observe is that the word which the plaintiff submitted could only be read as “conceded” could also potentially be read as “considered” or “concluded”.
There may be some support for the prospect of a ‘concession’ by the insurer in an email authored by Mr Bedi on 14 March 2017 where he observed “it seems that [the lawyer for the insurer] no longer takes issue on s 36B after John and I wrote a fantastic letter providing partix”. Mr Bedi followed this immediately with, “although I note that this is in conflict with her email to the employer sent on Friday pm”. It was open to the plaintiff to call Mr Bedi in the circumstances noted above at [345] to prove that the concession was made. The plaintiff elected not to do so.
Ultimately, I am not satisfied that the concession was made taking into account the following matters.
Mr Muller SC’s evidence was that he had no knowledge of a concession being made and indeed considered the issue was “live” as the extract above of his evidence demonstrated. Neither Mrs Agnello nor the plaintiff gave evidence that they were informed by anyone that the concession was made. Mr Bedi, the maker of the file note, was not called by the plaintiff to give evidence on the point and no other witness was called in support of the alleged concession.
Though Mr Muller SC accepted that he was “toing and froing” between the plaintiff and the defendant and counsel for the insurer as part of the negotiations on the day, his evidence otherwise did not support that a concession on this issue was made. His evidence as to the advice provided to the plaintiff, and indeed the understanding that Mrs Agnello and the plaintiff had about the issues revealed in their evidence, was that the s 36B issue remained in contest. Indeed, it was the issue for determination by the court on that day.
In light of Mr Muller SC’s evidence, the concession, if it was made, must have been made absent Mr Muller SC, either directly to Mr Bedi or within his hearing given he was the maker of the notation. It would be highly unusual for that concession to have been made by the insurer to Mr Bedi (or to Mr Little in Mr Bedi’s presence) but not to Mr Muller SC. If it was made to Mr Bedi or within his hearing to Mr Little, it would be absurd for it not to have been drawn to Mr Muller SC’s attention as counsel leading the negotiations with lawyers for the insurer.
Mr Muller SC’s advice to the plaintiff that he assessed there to be a 70 per cent prospect of success with respect to the state of connection issue, nonetheless accounted for some risk that the plaintiff would not succeed on this issue which was described as an “all or nothing” proposition. The plaintiff accepted that Mr Little had put the state of connection issue to him as “it could go either way”. This was consistent with a file note which recorded advice to the plaintiff that the outcome was “uncertain”. Mrs Agnello understood the advice on the state of connection issue was that he could be left with nothing if he lost with respect to it. None of this was consistent with the insurer conceding the very issue which was to be the subject of the court hearing on 6 April 2017.
The plaintiff’s insistence that he was advised by Mr Bedi that there was “99 per cent” certainty of success on the s 36B issue cannot be accepted for the reasons I have already identified with respect to the plaintiff’s reliability, as well as it being irreconcilable with the file note which recorded the outcome to be uncertain and the and advice of Mr Muller SC. I do not regard advice that the outcome was uncertain to conflict with Mr Muller SC’s 70:30 analysis in circumstances where, as Mr Muller SC explained, it was a matter to be determined by the court and not for agreement by the parties. On Mr Muller SC’s 70:30 analysis, there remained a risk that the plaintiff would lose and be ineligible for workers compensation entirely. In that respect, it was an ‘all or nothing’ issue.
I am not satisfied on the evidence that the plaintiff proved that the s 36B state of connection issue was conceded by the insurer on 6 April 2017.
Turning to the balance of the plaintiff’s submissions that the defendant contended was an expansion of the plaintiff’s case and accordingly not available to him to advance in light of the pleadings, I accept the argument made by the plaintiff that those matters were not relied upon as “standalone failures” but rather were necessarily part of the case pleaded that the defendant had failed to give proper advice to the plaintiff and came within the ambit of those matters particularised in the Statement of Claim at paragraphs 19, 71, 76, 79, 92, 96, 110 and 114.
The Statement of Claim sufficiently disclosed to the defendant the case the plaintiff alleged against them. In my view, the claim that the defendant failed to give proper advice necessarily encompassed the specific matters referred to in the plaintiff’s submissions with respect to the key issues which the workers compensation claim required him to establish and about which he claimed the defendant had failed to properly advise. I am satisfied that the pleadings and particulars furnished by the plaintiff in the Statement of Claim were sufficient to notify the defendant of the case he intended to advance.

There was no dispute that a duty of care was owed by the defendant to the plaintiff.
The existence of a duty of care between a solicitor and their client is well established: Badenach v Calvert [2016] HCA 18; 257 CLR 440 at [16]; Heydon v NRMA Ltd [2000] NSWCA 374; 51 NSWLR 1 at [146] per Malcolm AJA.
At s 40, the Civil Law (Wrongs) Act 2002 (ACT) defines negligence as a failure to exercise reasonable skill and care. The standard of care required is that of a reasonable person in the defendant’s position who was in possession of all the information that the defendant had, or ought reasonably to have had, at the time of the incident out of which harm arose: s 42 of the Civil Law (Wrongs) Act.
As McWilliam J observed in McLennan v Clapham & Ors [2019] ACTSC 1 at [47]-[50]: 47. A solicitor's duties will depend upon the terms and conditions of that retainer and any duty of care to be implied must be related to what he or she is instructed to do: Midland Bank Trust Co Ltd v Hett, Stubbs & Kemp [1979] Ch 384 at 402; Hill v Van Erp (1997) 188 CLR 159. … 49. It was also not in dispute that a solicitor owes a duty of care to those whom they advise, or for whom they act. The duty of a solicitor is to exercise reasonable care and skill in the provision of professional advice. In the case of practitioners professing to have a special skill in a particular area of law, the standard of care required is that of the ordinary skilled person exercising and professing to have that special skill: Heydon v NRMA Ltd [2000] NSWCA 374; 51 NSWLR 1 (Heydon v NRMA) at [146]. 50. A solicitor owes a general duty to explain legal documents to the client, or at least to ensure that the client understands the material parts. In particular, a solicitor should explain any unusual provisions or any provisions of particular relevance to the client’s proposed activities, or which might influence the client in deciding to enter the contract: Sykes v Midland Bank Executor & Trustee Co Ltd [1971] 1 QB 113, applied in Australia in Fox v Everingham (1983) 76 FLR 170 (Fox v Everingham) at 174.
In Short v Delaney [1999] NSWSC 1293 at [5] consistent with those matters observed by McWilliam J, the Court stated: Subject to the nature of any particular retainer and the ambit of any additional assumed responsibility, a solicitor has a duty of care to exercise a reasonable level of professional care and skill and take all reasonable steps to advise the client appropriately concerning all material aspects of the matter entrusted to the solicitor. Depending on the circumstances, this might involve advice as to the client’s rights and obligations as to matters in dispute between that client and another person, identifying material issues which ought to be apparent from the due exercise of the solicitor’s professional skill and experience, whether specifically sought by the client or not, and advising as to or undertaking necessary or desirable enquiries. The nature of the matter entrusted to the solicitor may require him or her not only to carry out the client’s specific instructions but the solicitor may need to initiate action or undertake enquiries in order properly to discharge the duty to the client and protect him or her from a real and foreseeable risk of economic loss. The standard of care usually applying is that of the ordinary skilled solicitor practising in the field relevant to the matter in respect of which the particular solicitor is retained and where the solicitor professes special expertise in a particular field of law to do work within that field, the relevant standard of care is that of the ordinary skilled solicitor who exercises and professes such special expertise. … Mere adherence to well-established practice may not excuse a solicitor from responsibility for avoidable damage which was reasonably foreseeable if the particular circumstances of the case as were known or ought to have been known to him or her required particular steps to be taken in order to avoid the risk of loss to the client.
Relevantly, in Seamez (Australia) Pty Ltd v McLaughin [1999] NSWSC 9 at [29]-[30] the Court stated the following with respect to settlement of a claim: A somewhat stricter approach has been adopted against plaintiffs in relation to claims which pertain to the settlement of a case. The courts have taken the view that because of the public policy interest in encouraging settlement of disputes “only in a clear and exceptional case…[can]…the decision of counsel to recommend settlement…be successfully assailed”: supra at per Anderson J; also see Studer v Boettcher supra at 16; Campbell v Gibson & Gibson supra; Maillet & Pothier v Haliburton & Comeau (1983) 114 APR 311, 315; Atwell v Michael Perry & Co (1998) 4 All ER 65. The approach applies equally where the advice is given by a solicitor. According to these decisions, a solicitor will only be in breach of duty in advising in favour of a settlement if the error alleged to have been made is an egregious one and, in particular, will not be liable for “an error of judgment based on an honest opinion as to the facts or on points of law of doubtful construction or of new occurrence”: Campbell v Gibson & Gibson supra at 264. Young J in Studer (supra) at 16 quoted with approval the following passage from the decision in Karpenko (at 387): “The courts do not interfere unless it can be seen that the view that the barrister or solicitor took was such that no reasonable solicitor or barrister could have come to in the circumstances”. This line of authority relates to a solicitor’s exercise of judgment in advising settlement. It does not relate to the provision of information to the client, known by or readily available to the solicitor, which is relevant to a decision by the client concerning settlement. No such caution is required in that regard.
In Studer v Boettcher [2000] NSWCA 263 Fitzgerald JA (agreeing with Handley JA) observed “[a]dvice to compromise is not negligent merely because a court subsequently considers that a more favourable outcome would or might have been obtained if the original dispute had been litigated to judgment (or a more favourable compromise would or might have become available later).” His Honour observed at [63]: A lawyer’s advice to a client to make or reject an available compromise is commonly not concerned only with the client’s rights, obligations and hopes. Usually, other matters must also be considered. For example, it is often impossible to predict the outcome of litigation with a high degree of confidence. Disagreements on the law occur even in the High Court. An apparently strong case can be lost if evidence is not accepted, and it is often difficult to forecast how a witness will act in the witness-box. Many steps in the curial process involve value judgments, discretionary decisions and other subjective determinations which are inherently unpredictable. Even well-organized, efficient courts cannot routinely produce quick decisions, and appeals further delay finality. Factors personal to a client and any inequality between the client and other parties to the dispute are also potentially material. Litigation is highly stressful for most people and notoriously expensive. An obligation on a litigant to pay the costs of another party in addition to his or her own costs can be financially ruinous. Further, time spent by parties and witnesses in connection with litigation cannot be devoted to other, productive activities. Consideration of a range of competing factors such as these can reasonably lead rational people to different conclusions concerning the best course to follow. Advice to compromise based on a variety of considerations is not negligent if a person exercising and professing to have a legal practitioner’s special skills could reasonably have given that advice.
There was no retainer agreement. In those circumstances, it was uncontroversial that the duty of a solicitor under retainer is to properly safeguard their client’s interests and to carry out the instructions of their client in all matters related to the retainer. Applied to this case, the retainer under which the defendant was operating required them to advise the plaintiff and protect his interests with respect to his workers compensation claim that was said to have arisen from an injury he suffered in May 2016. The defendant owed to the plaintiff the duties of an ordinary skilled solicitor professing and exercising expertise in the field of workers compensation law in the ACT.

The plaintiff submitted the defendant was “bound by general law duty and its retainer to advise Mr Agnello about the fact of those statements and to brief Mr Muller SC with them, and there is no evidence that this occurred. Accordingly, this was a failure to exercise reasonable precautions”.
The plaintiff’s evidence revealed (consistent with Mrs Agnello) that he knew that Frank and Rose Agresta had been “called in to do a statement” and that Rose Agresta had provided diaries and iPads to Mr Bedi for the purpose of establishing his work patterns.
Undoubtedly, the evidence of Mr and Mrs Agresta, as Mr Muller SC explained as two people involved in the day-to-day operation of the business, was potentially “helpful in the contest under s 36B with reference to the criteria”. Mr Muller SC was careful to explain, that which is common sense from a litigation point of view, namely that the substance of their evidence would determine the relevance or significance of their account to the plaintiff’s prospect of succeeding on the s 36B issue. It was not so much the existence of a statement from them which was significant, but rather the substance of their account which may have been important to understand. Mr Muller SC could not recall specifically whether the signed statutory declaration from Rose Agresta and the unsigned statutory declaration from Frank Agresta taken by the insurance investigator had in fact been provided to him by the defendant.
A review of the signed statement made by Rose Agresta on 28 March 2017 and the unsigned statement made by Mr Agresta on 29 March 2017 revealed that their accounts with respect to the geographical operations of the Carpet Doctor business were, for the most part, consistent with each other and the account of the plaintiff with respect to the operation of the Carpet Doctor.
Mr Muller SC participated in a conference with Mr and Mrs Agresta on 30 March 2017. The conference notes from that meeting in so far as they can be deciphered and to the extent that it was recalled by Mr Muller SC, demonstrated that matters going to s 36B were canvassed. The notes of the conference record “done statement but not [indecipherable]”. I am satisfied that Mr Muller SC was aware at the conference and at court on 6 April 2017 that the Agresta’s had provided statements to the insurer’s investigator. The mere existence of statements made by the Agresta’s just before their conference with Mr Muller SC on 30 March 2017 did not necessarily enhance the plaintiff’s case, as Mr Muller SC identified.
Mr Muller SC was clear that it was his view that the best case for the plaintiff (that which underpinned his 70:30 assessment) was to “steer the court” through the limbs of s 36B and if there was no success for the plaintiff on any of s 36B limbs, that the plaintiff would establish an “entitlement to compensation on the basis that the injury happened here”: s 36B(5) of the Workers Compensation Act. Mr Muller SC explained: There is a default position and – and that was where I thought we would end up in Mr Agnello's case if we were to succeed. There was no prospect of establishing that he usually worked in the ACT. He was clearly habitually doing work in both jurisdictions. Base was significantly problematic because the – the two families worked out of their homes, they had a place in the ACT where the truck was parked but they certainly didn't have a premises from which he was expected to operate anywhere so I was troubled that we wouldn't get there on base. And principal place of business, in terms of the indicators to which you had to have regard if there was one, it was arguably the Agrestas' home which was registered for ASIC purposes as the principal place of business for the company. My hope was if we'd run the case to steer the court through all three limbs and end up with what happens if you don't get an answer from those three limbs, which is establishing the entitlement to compensation on the basis that the injury had happened here. So that was – that was the strategy I had in mind.
The plaintiff did not challenge the wisdom of that strategy. The plaintiff’s evidence acknowledged that his “understanding was I had to show that I was working in the ACT that day and majority of days”. The plaintiff agreed that Mr Bedi had in fact assisted him and his wife to prepare two spreadsheets outlining the plaintiff’s work history in the lead up to the alleged incident.
I am satisfied that the plaintiff was aware that Mr and Mrs Agresta had provided an account of the operation in which he was involved and that their account was potentially relevant to his case with respect to the state of connection issue.
I am not satisfied that the evidence established that Mr Muller SC was not provided with a copy of the statements made by Mr and Mrs Agresta. That said, even if I were so satisfied in circumstances where Mr Muller SC conferenced with Mr and Mrs Agresta, I do not consider the failure to specifically draw the accounts taken by the insurer’s investigator to his attention was a breach of the defendant’s duty.
The evidence demonstrated that as at 6 April 2017 Mr Muller SC had conferenced with Mr and Mrs Agresta. His assessment as to the plaintiff’s prospect of success on the state of connection issue was founded on the view that he formed that the plaintiff had the best prospect of invoking the Workers Compensation Act on the basis that the injury occurred in the ACT. This was a view he formed after conferencing with Mr and Mrs Agresta and accordingly, “armed” with the information Mr and Mrs Agresta had to offer, he would “remain of the view that the best argument in Mr Agnello’s case was to fall through the three tiers and get to place of injury”.

For reasons already explained, I am not satisfied that the plaintiff has established that the insurer made a concession with respect to the state of connection issue. Accordingly, I am not satisfied there was a breach of the duty on the basis that the concession was not communicated to the plaintiff.
I have already recorded my view that the advice as to the uncertain nature of the outcome of the claim on 6 April 2017 was not inconsistent with the view taken by Mr Muller SC. Indeed, Mr Muller SC was present when the plaintiff was given that advice and did not consider it to be inconsistent with his 70:30 analysis. The 70 per cent chance of success with respect to s 36B nonetheless left open the prospect of failure. Failure for the plaintiff on this aspect of his claim was fatal to accessing any workers compensation at all because he was unable to access the NSW scheme. Mr Muller SC described warning the plaintiff with respect to the state of connection issue that “notwithstanding that I had an expectation that the case was a better than even case that he could lose and be a NSW worker” and was careful to reiterate that the state of connection was a matter to be determined by the Court. Unsurprisingly, the plaintiff (and Mrs Agnello) clearly understood that the s 36B issue was an “all or nothing” issue.
I am not satisfied that Mr Bedi did advise the plaintiff that the prospect of success on the state of connection issue was 90 to 99 per cent. This was entirely inconsistent with the file note from 6 April 2017 which I am satisfied recorded the plaintiff confirming his understanding in the court conference with Mr Muller SC and Mr Little that the outcome was “very uncertain”. This recording was consistent with Mr Muller SC’s advice and his recollection of the advice given to the plaintiff at the court on 6 April 2017. The plaintiff and Mrs Agnello’s account that Mr Bedi advised them the prospect of success on the state of connection issue was 90 to 99 per cent was inconsistent with the plaintiff’s assertion that Mr Little told him, “it could go either way”. It defies common sense that Mr Bedi, the most junior of the legal team advising the plaintiff, in the face of the advice he recorded from senior counsel and Mr Little as to there being a level of real “uncertainty” as to the outcome of the state of connection issue, would at the same time advise the plaintiff that he had almost no chance of losing the state of connection issue.
Even if I had accepted the plaintiff’s evidence that Mr Bedi had advised the plaintiff that he had a “90 percent chance” on the state of connection issue, that advice could not stand once Mr Muller SC had expressed his view as to the prospect of succeeding on that aspect of the plaintiff’s case. Mr Muller SC did not give advice consistent with a 90 to 99 per cent chance of success. Mr Muller SC was not challenged on his repeated assertion that he gave clear advice to the plaintiff as to his 70:30 chance on the state of connection issue.
The advice to the plaintiff on 6 April 2017 that the outcome was very uncertain was not a breach of the defendant’s duty.

The plaintiff contended that proper advice was not provided to him on this aspect of his claim because of the failure by the defendant to attend to the following matters: (a) Compiling a proper proof of evidence from Mr Agnello with respect to what was said to Dr Pik on 10 June 2016 and the circumstances of the entries made in the Queanbeyan Hospital notes on 23 May 2016. (b) Compiling a proper proof of evidence from Mrs Agnello as to any contemporaneous communications with Mr Agnello about the workplace incident on 20 May 2016 and the disclosures to medical professionals on 23 May 2016 and Dr Pik on 10 June 2016. (c) Drawing to the attention of Mr Muller SC the eye-witness account of Frank Agresta of the workplace incident contained in the unsigned statutory declaration made to the insurer’s investigator on 29 March 2017 and Mrs Agresta’s contemporaneous conversation with Mr Agresta about the workplace incidence contained in her signed statutory declaration of 28 March 2017. (d) Advise the plaintiff about the matters contained in the email composed by Mr Bedi on 12 March 2017 or the assessment of compensation sent to Mr Muller SC. (e) Advise the plaintiff as to the significance of the report by Dr Yanni Sergides dated 6 February 2017. (f) Advise the plaintiff as to the risk posed to him in commuting his right to workers compensation in light of his hospitalisation proximate to 6 April 2017. (g) Advise the plaintiff that it was open to him to have the state of connection issue determined on 6 April 2017 and defer causation and the question of commutation when he had achieved greater stability in his medical condition.
The plaintiff submitted that these specific failings were compounded by the advice given by Mr Little on 6 April 2017 that the $420,000 offer was the “best” the plaintiff could expect to receive.
As I have already recorded, the plaintiff, perhaps sensibly, did not rely on the evidence adduced from Mr Lander. Instead, the evidence adduced from Mr Muller SC (initially over objection) as to the issues faced by the plaintiff in establishing his entitlement to workers compensation under the ACT scheme was embraced by the plaintiff. The plaintiff accepted that Mr Muller SC was “preeminent in the area of workers compensation rights in the ACT”.
It is convenient to address first the submission as to the ultimate advice said to have been given by Mr Little that $420,000 was the “best” the plaintiff could expect in the circumstances. The only evidence that this advice was given came from the plaintiff and Mrs Agnello. I cannot be satisfied that the advice was given in the precise terms they attributed to Mr Little. Mr Muller SC did not recall it being said by Mr Little in his presence and observed that if it were said by Mr Little “in isolation” it would be “inappropriate” but that he would “need to know more about what its context was”. There is no record in the file note which would correlate with advice in those terms being given by Mr Little. Indeed, a decipherable file note which I am satisfied recorded Mr Little as saying to the plaintiff that Mr Little “is happy to do what you tell us. Can run it but outcome will sig affect your life”.
For reasons already recorded as to their reliability I cannot accept the plaintiff and Mrs Agnello’s evidence that Mr Little specifically advised the plaintiff that the offer of $420,000 was the “best” that the plaintiff could expect to receive. At the risk of repetition, the capacity of the plaintiff and Mrs Agnello to recall specific detail was limited. There was no explanation for why it was that they were able to specifically recall this advice from Mr Little but were unable to recall other advice it was clear they were given or events that plainly occurred. I am of the view that in their attempt to build a case that the advice given (or not) to them by the defendant was negligent, they filled gaps in their memory based on what they perceived would advance that case, rather than what they in fact recalled from their memory.
Mr Muller SC considered the s 36B issue to be significant in part because of the “all or nothing” consequences for the plaintiff of failure on that issue. Mr Muller SC noted that at the time of the plaintiff’s case in 2017 “the law was pretty settled about ‘usually works’ but there was still some – some uncertainty about, you know, what the factual limitations were in terms of making out a case for being 'usually based' and there was, as best as I can recall at that time, little or no authority on the third limb of the test”.
But Mr Muller SC was also careful to explain that the establishment of the plaintiff’s back injury as having occurred at work was not straightforward. Relevantly, Mr Muller SC said: I expressed a view about the prospects on the section 36B issue and I've mentioned a 70:30 percentage. With injured workers, my usual practice is to say, 'You've got a very strong case' or 'It's finely balanced. It's a 50:50 case'. If I think they've got a better than even case I will usually say 70:30 and it appears that's what I've said here, and that the prospects were reduced because of the injury causation issue and there's a note there about the ACT Health records and Dr Pik's report and that jogs my memory that there was some inconsistency in that material in terms of the history of symptom onset. There were some occasions where a work incident hadn't been mentioned at all. There were differences in the timing of the incident. There were differences in the mechanism of injury and all of those – and there was the issue that I've already discussed about the onset of what appeared to be radicular symptoms whilst at home on the toilet, so they were all factors that were causing me to have some concern about the – about establishing causation even if we got past the – the 36B hurdle.
Mr Muller SC explained that even if the s 36B had resolved in the plaintiff’s favour he “anticipated another fight before they would start paying and that is a reference to the – the residual causation issue”. The s 36B issue, Mr Muller SC said, was the issue that “more than anything was the issue that carried the risk for him of receiving some compensation for his injury or receiving nothing, so that issue, in my mind, was the pre-eminent issue to be satisfied that he had a clear understanding of risk”. He went on to say: [B]ut that is not to downplay the significance of other issues. And I had some real reservations about the causation issue because of the variation in what had been recorded at difference times about the injury circumstances and because of what Mr Agnello had told me about the onset of radicular symptoms on the toilet.
In Darvall McCutcheon v H K Frost Holdings Pty Ltd [2002] VSCA 85; 4 VR 570, Chernov JA (Ormiston and Callaway JJA agreeing) observed at [29]: A plaintiff, who claims damages on the basis that the defendant’s negligence or breach of retainer caused it to lose a valuable opportunity to undertake a particular cause of action, must establish on the balance of probabilities, that the defendant’s negligence caused the loss of that opportunity and that the opportunity was real as distinct from being fanciful (or, put another way, that the opportunity had some value, not being a negligible value). Once the plaintiff establishes these matters to the required standard, the value of extent of that loss is to be ascertained by reference to the degrees of probabilities and possibilities: see Stellar v Adelaide Petroleum NL; Price Higgins & Fidge v Drysdale.
Next, for reasons also already expressed I do not consider that the defendant failed to give proper advice on this aspect of the plaintiff’s claim on the basis that they failed to draw to Mr Muller SC’s attention the existence of the statements made by Mr and Mrs Agresta. First, I am not satisfied that this did not happen and secondly, I am satisfied Mr Muller SC conferenced with Mr and Mrs Agresta himself. Notwithstanding his conference with them, Mr Muller SC was clear that he retained concerns about the consistency in the plaintiff’s version of how the injury occurred as well as the onset of his symptoms with the occurrence of the toilet collapse.
The plaintiff and his wife participated in numerous conferences with the defendant and upon his involvement, conferences with Mr Muller SC. Mr Muller SC understood that the report from Dr Pik presented a difficultly and formed his own view as to the challenge the plaintiff’s ‘evolving’ account might present to establishing the injury.
The file notes recorded a reference to the report of Dr Pik in the course of giving the plaintiff advice. Indeed, it was Dr Pik’s report that saw a change in the initial position of the insurer with respect to the plaintiff’s claim. It was against this background (which included knowledge as to the plaintiff’s collapse in the toilet that saw him admitted to hospital) that Mr Muller SC “anticipated another fight” if the state of connection issue was resolved in the plaintiff’s favour and it was against this background that he crafted his advice to the plaintiff as to the ‘risk’ of commuting his rights on the day that settlement was reached.
I am not satisfied that the plaintiff established that the defendant failed to take instructions from him and conference with Mrs Agnello as to the circumstances of the appointment with Dr Pik and recording of the history of the plaintiff’s injury by Dr Pik or the circumstances of his injury. Mr Muller SC accepted the evidence of the plaintiff and Mrs Agnello to be relevant to the injury aspect of the plaintiff’s claim and the capacity for him to meet the challenge of the history of the plaintiff’s injury as recorded by Dr Pik in his report. On the evidence I am not satisfied that these matters were not canvassed with the plaintiff and Mrs Agnello. The reference to the report of Dr Pik in the file notes and in Mr Muller SC’s evidence support there being an understanding of its significance to the insurers position and the need to understand the plaintiff’s position with respect to it. Neither the plaintiff nor Mrs Agnello can be accurately relied upon to determine whether issues were or were not raised with them by the defendant.

Mr Bedi sent an email to Mr Muller SC on 12 March 2017 in which he expressed an opinion as to the value of the plaintiff’s claim, noted the uncertainty of the plaintiff’s medical position and it being “too early for [the plaintiff] to commute/settle his rights”. The email included an assessment of compensation range which the plaintiff might expect to receive.
The plaintiff contended that the failure to give him advice consistent with the terms of Mr Bedi’s email was a breach of the duty owed to him by the defendant. It seems to me that this ignores two significant matters. First, the timing of the email and secondly and relatedly, Mr Muller SC’s involvement.
The email sent by Mr Bedi came prior to the dispute resolution conference. Mr Bedi was the most junior lawyer involved in advising the plaintiff. Whilst the email included Mr Little, there was no evidence he had checked or endorsed the content of it for accuracy.
Mr Muller SC agreed with the general proposition put to him that if the solicitor with “day to day” carriage of a matter formed a view that it would be “risky” for a client to commute their right to workers compensation payments that advice should be given to the client. Mr Muller SC explained that there were some “numbers” in Mr Bedi’s table that he considered “entirely unrealistic” and he “wouldn’t be conveying this to the client”. Mr Muller SC was also careful to explain that if the opinions expressed by the defendant (via Mr Bedi) in the 12 March email were “maintained” after a dialogue with him about the issues in the case then “it ought to have been communicated to the client”. There was no evidence that Mr Bedi’s opinion with respect to the compensation range was maintained after advice from Mr Muller SC. Indeed, Mr Muller SC’s evidence would suggest otherwise.
Whilst Mr Muller SC accepted that the question of whether to engage in commutation sat apart from the two legal issues in the plaintiff’s claim, he was careful to explain the following in an exchange with Mr Lloyd SC: Mr Lloyd SC: No, but Mr Muller here – here we’re talking about the commutation question? Mr Muller SC: We are. Mr Lloyd SC: And whether this was a case where it was open on the present position to engage in the exercise of commutation? Mr Muller SC: True. Mr Lloyd SC: As opposed to dealing with the two issues raised in the proceedings? Mr Muller SC: But – but part of that – you can’t divorce the two where part of that analysis is necessarily risk. You have to make sure that the client understands that proceeding with the application, accepting all of the concerns about - about continuing medical issues and medical treatment, proceeding with the application had the risk of complete failure.
The defendant was entitled, in my view, to defer to the expertise and advice of Mr Muller SC. There was no evidence that Mr Little or Mr Bedi disagreed with the advice Mr Muller SC gave to the plaintiff. I am satisfied Mr Muller SC was at pains to explain to the plaintiff the transfer of risk which a commutation represented. The contemporaneous notes in combination with the evidence of Mr Muller SC, as well as the accurate understanding that the plaintiff and Mrs Agnello had with respect to the legal issues in the claim do not support a finding that the plaintiff was not given proper advice by reference to the 12 March 2017 email compensation assessment range.
I turn to consider the effect of the Sergides Report on the remaining matter about which Mr Bedi expressed an opinion; the risk of commuting in the context of the plaintiff’s “extremely” unstable medical position.

Dr Sergides’ report dated 6 February was provided to Ms Emma Reilly (solicitor for the insurer), copied in an email to Mr Muller SC at 1:14pm on 14 March 2017. The conference commenced on 1:25pm on 14 March 2017. Mr Muller SC had no independent memory of seeing the contents of the report though accepted it was provided to him.
The report was provided to the plaintiff at the conference that same day. However, as I have already outlined, this position (although was accepted in the pleaded case) was not accepted by the plaintiff.
In the report, Dr Sergides relevantly concluded that the plaintiff’s symptoms had not plateaued to their full potential and that he should be further assessed after an additional period (6 months).
Mr Muller SC agreed that the Sergides report was “critical for the client to have an understanding of this opinion as part of that decision making process” and that the risk that a condition might worsen in the future is a risk that should always be explained in the context of a claim and commutation.
The plaintiff submitted that the receipt of Dr Sergides’ opinion obliged the defendant to give detailed advice to him about the effect of the report, as well as the prospect of having the state of connection issue determined and awaiting the achievement of some stability (or not) in his medical condition.
The instability in the plaintiff’s condition was demonstrated, he submitted, by the exacerbation of his pain in the lead up to the 6 April 2017 hearing which had resulted in an admission to hospital. The following evidence was said to have revealed the uncertainty which surrounded the plaintiff’s medical position (consistent with the view Mr Bedi formed and with the content of the Sergides’ report): (a) The plaintiff’s evidence that he recalled a conversation with the defendant’s firm about whether he was well enough to go to court; (b) A phone call between Mrs Agnello and the defendant on 30 March 2017 where she communicated that Mr Agnello was having a CT and bone scan to see if his more recent operation had been successful and he was “still in heaps of pain”; (c) An email from the defendant to the solicitor for the insurer, Ms Reilly, on 30 March 2017 which informed her that the plaintiff was “currently at St Vincent’s hospital receiving treatment for the work injury” and expressed the defendant’s concern that it was unknown whether the plaintiff “will be released/fit to give evidence next Thursday”; and (d) A telephone conversation between the plaintiff and the defendant on 31 March 2017 where the plaintiff informed the defendant that he should be “out” of hospital the following night and that it was his understanding that he would “have to wait to heal” and that he had a “3D scan”.
The plaintiff submitted that advice should have been given to him by the defendant in those circumstances that it was not possible to give him proper advice about the risks posed to him by commutation on that day in light of those events exacerbating his back pain. I do not agree with this contention. The plaintiff, the defendant and Mr Muller SC all had access to the Sergides report. The plaintiff, the defendant and Mr Muller SC were aware of his more recent hospital admissions. Had the plaintiff been given advice by the defendant as to the significance of the Sergides report, I am satisfied that proper advice about the risks posed to him by commutation was possible on the day the plaintiff settled his claim.
The plaintiff submitted that the defendant was obliged to advise the plaintiff about the risk in commuting his rights and brief Mr Muller SC on the evidence which demonstrated the instability of the plaintiff’s medical condition. Mr Muller SC supported this general proposition, and I agree that the scope of the defendant’s duty required advice to him and a briefing to Mr Muller SC on significant events which went to the plaintiff’s medical position.
Whilst the Statement of Claim accepted that the plaintiff had been given a copy of the Sergides report, there was no evidence that he had ever been given advice by the defendant as to the significance of the report with respect to the risk to him of commutation in light of the conclusions contained therein. Whilst I am satisfied his evidence demonstrated awareness on Mr Muller SC’s part that there was uncertainty as to the plaintiff’s medical position (likely informed by the provision of the Sergides report to him), his evidence did not establish that specific advice was given to the plaintiff on this issue by reference to the Sergides report nor did any of the file notes record the provision of advice as to the significance of the contents of the Sergides report.
The failure to provide to the plaintiff specific advice as to the significance of the Sergides report breach cannot be cured by what I am satisfied was comprehensive advice as to the risk of commutation provided to the plaintiff by Mr Muller SC the effect of which I will come. Whilst I accept that the involvement of (pre-eminent) counsel resulted in the plaintiff receiving advice from the defendant and Mr Muller SC, and that the defendant was entitled to defer to Mr Muller SC’s expertise, the scope of the defendant’s duty required them to specifically attend to the Sergides report and provide to the plaintiff advice as to its effect on his claim and commuting his entitlement to workers compensation payments. Notwithstanding Mr Muller SC’s involvement, the defendant was obliged to provide advice to the plaintiff as to the potential effect of the Sergides report, and I am satisfied they did not.
The plaintiff has demonstrated a breach of the defendant’s duty by the failure to advise him (between the receipt of the report and 6 April 2017) about the potential effect of the Sergides report; specifically, that it supported a need for further time to understand the nature and extent of his medical condition and that the uncertainty in his medical condition supported by the Sergides report was a factor to consider in considering the risk of commutation.
That said, I am not satisfied that the breach extends to the failure to brief Mr Muller SC about matters which went to the uncertainty of the plaintiff’s medical position and the risk to him of commutation. Mr Muller SC’s evidence demonstrated that he was provided with a copy of the Sergides report by the defendant and he was acutely aware that the plaintiff’s medical position was uncertain and that further treatment was in his future. Mr Muller SC, not unreasonably, could not recall the content of the Sergides report but I am satisfied that what he recalled as to the content of his advice was necessarily informed at the time by his knowledge of what it contained. Mr Muller SC stated: [I]t's just consistent with the discussions that had been had previously that there was real uncertainty about the outcome, that there was an opportunity to resolve on a lump sum basis and have some certainty and there was the risk that we could proceed with the application and the risk that we would walk away with nothing. And there’s a recording of the fact that Mr Agnello understood it was very uncertain and that it was his choice whether he accepted the transfer of risk to him and took a lump sum or if he proceeded with the – with the state of connection hearing … [T]here was advice about the medical issues because it was undoubtedly – it was something I remember being discussed that from Mr Agnello’s perspective he wasn’t at the end of his treatment. There was treatment that he expected he was going to need and indeed that he wanted to have and discussing about him being able to, to some extent, access the public health system in that regard. … There was advice given at the end of the settlement discussions about the risk transfer exercise again. … I am confident that [the advice] would have been to convey to Mr Agnello that it was a matter of choice for him whether he resolved, that was risks in receiving and what the meaning of the lump sum was in terms of equivalent compensation terms. (Emphasis added.)
I am satisfied that the advice of Mr Muller SC included setting out for the defendant the advantages and disadvantages of the options available to him and the risk involved with each option. Plainly, the plaintiff does not take issue with the advice provided to him by Mr Muller SC.
The plaintiff has not established that he was not advised that he had the option of resolving the state of connection issue on 6 April 2017 and waiting to consider any stabilisation in his medical condition as referred to in the medical Sergides report. The plaintiff and Mrs Agnello’s evidence revealed their understanding of the two discrete legal issues that required resolution. They both understood that 6 April 2017 was intended to resolve the state of connection issue alone and that this would not resolve the outcome of the claim entirely. They both understood the significance of the state of connection issue and it being an “all or nothing” issue. Mrs Agnello described their “assumption” that the process would be to determine the state of connection issue and “after that, if that was to be determined we would go from there”. It was also clear that the plaintiff understood that which was recorded in the file note, namely, that the decision to settle his claim on that day was his choice.

Having found that the defendant failed to provide the plaintiff with advice about the Sergides report, I turn now to consider whether the plaintiff has established factual causation.
For the reasons that follow, the plaintiff has not established that he would not have instructed the defendant to settle his claim on 6 April 2017 had he received advice from the defendant about the Sergides report.
Section 45 of the Civil Law (Wrongs) Act governs causation of loss: 45 General principles (1) A decision that negligence caused particular harm comprises the following elements: (a) that the negligence was a necessary condition of the happening of the harm (‘factual causation’); (b) that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (the scope of liability). (2) However, if a person (the plaintiff) has been negligently exposed to a similar risk of harm by a number of different people (the defendants) and it is not possible to assign responsibility for causing the harm to 1 or more of them— (a) the court may continue to apply the established common law principle under which responsibility may be assigned to the defendants for causing the harm; but (b) the court must consider the position of each defendant individually and state the reasons for bringing the defendant within the scope of liability. (3) In deciding the scope of liability, the court must consider (among other relevant things) whether or not, and why, responsibility for the harm should be imposed on the negligent party
The plaintiff bears the burden of proving, on the balance of probabilities, any fact relevant to the issue of causation. A consideration of factual causation requires a practical, commonsense approach and the application of the ‘but-for’ test explained by Kirby J in Chappel v Hart [1998] HCA 55; 195 CLR 232 at [93] as follows: The "but for" consideration: If, but for the negligent act or omission, the actual damage suffered by a plaintiff would not have occurred, it will often be possible, as a practical matter, to conclude the issue of causation in the plaintiff's favour. Similarly, where the damage would probably have happened anyway, it will often be possible to conclude that the act or omission was not the cause for legal purpose. In this sense, the "but for" test, so qualified, remains a relevant criterion for determining whether the breach of duty demonstrated is a cause of the plaintiff's damage. However, it is not the exclusive test. Nor is it sufficient on its own to demonstrate the causal link for legal purposes. It is a mistake to read this Court's cautionary words about the "but for" test as an expulsion of that notion from consideration where the question of causation is in contest. On the contrary, a sufficient causal connection will, generally speaking, be established if it appears that the plaintiff would not have suffered the damage complained of but for the defendant's breach of duty. The Court has simply added the warning that it is necessary to temper the results thereby produced with "value judgments" and "policy considerations". This qualification has been expressed lest a party, shown to have been in breach of duty, is forever thereafter to be liable for every misfortune that follows in time whatever the breach demonstrated and however irrelevant it may appear to the damage which ensued. (Citations omitted.)
In Badenach v Calvert at [39]-[41] French CJ, Kiefel and Keane JJ observed: It may be accepted that an opportunity which is lost may be compensable in tort. But that is because the opportunity is itself of some value. An opportunity will be of value where there is a substantial, and not a merely speculative, prospect that a benefit will be acquired or a detriment avoided. It remains necessary to prove, to the usual standard, that there was a substantial prospect of a beneficial outcome. This requires evidence of what would have been done if the opportunity had been afforded. The respondent has not established that there is a substantial prospect that the client would have chosen to undertake the inter vivos transactions. Therefore, the respondent has not proven that there was any loss of a valuable opportunity. The onus of proving causation of loss is not discharged by a finding that there was more than a negligible chance that the outcome would be favourable, or even by a finding that there was a substantial chance of such an outcome. The onus is only discharged where a plaintiff can prove that it was more probable than not that they would have received a valuable opportunity. To the extent that the majority in Allied Maples Group Ltd v Simmons & Simmons holds that proof of a substantial chance of a beneficial outcome is sufficient on the issue of causation of loss, as distinct from the assessment of damages, it is not consistent with authority in Australia and is contrary to the requirements of s 13(1)(a) of the Civil Liability Act.
In this case the question of factual causation is to be determined by considering what the plaintiff would have done if the defendant had provided him advice about the Sergides report. To succeed, the plaintiff must prove on the balance of probabilities that ‘but for’ the defendant’s failure to provide him advice about the Sergides report he would have instructed the defendant to pursue a ruling on the s 36B issue first and await the stabilisation of his medical condition in order to properly assess the risk involved in commutation. A more valuable opportunity for the plaintiff in this case involved succeeding on both aspects of his workers compensation claim and then engaging the insurer to commute his entitlement to weekly compensation payments to a lump sum greater than that which he achieved in 2017.
The evidence of Mr Muller SC was that the plaintiff had a greater than negligible chance of the state of connection issue resolving in his favour. Despite what I am satisfied were substantial challenges for the plaintiff in successfully establishing that his medical condition arose from an incident at work on 20 May 2016, I am satisfied that his prospects overall with respect to his claim were more than merely negligible.
Whilst the defendant’s breach cannot be cured by the advice provided by Mr Muller SC, I am satisfied that the plaintiff did receive comprehensive advice from Mr Muller SC about the risk of commutation which took into account the substantial uncertainty which attended to his medical condition and the prospect of future treatment as at 6 April 2017.
Having received that advice, the plaintiff agreed to the terms of the settlement on 6 April 2017.
It cannot be ignored that the plaintiff himself considered that the effect of Dr Sergides’ opinion was that he “was in a bad way”. After the plaintiff’s consultation with Dr Sergides he was recorded by the defendant to have reported in a telephone call “the appointment was okay but the doctor said he’s not going to recover and potentially not go back to work”.
I am satisfied that the plaintiff and Mrs Agnello were well aware on 6 April 2017 that he had only recently been discharged from hospital, that his medical condition had not stabilised, that he very likely required further medical treatment and that he may not be able to return to work. These matters were all known to the plaintiff absent specific advice to him from the defendant about the Sergides report.
At the time he agreed to settle his claim on 6 April 2017 I am satisfied that the plaintiff was in an extremely difficult financial situation which significantly bore upon his approach to the settlement of his claim. The plaintiff accepted that by 6 April 2017 he was in a “difficult position” and that he was “struggling” financially.
It was not a financial situation brought about only by virtue of the existence of the debt owed to The Canberra Hospital. Mrs Agnello’s evidence was that as by 6 April 2017, in the face of understanding that the claim was “all or nothing”, the plaintiff’s agreement to settle his workers compensation claim “was almost a no brainer for us”. Despite evidence that there were alternative sources of financial support to them, in cross examination the following evidence was adduced from Mrs Agnello: Mr Williams SC: And although looking at it now, you’re not happy with the amount that was received by way of that negotiation at the time it was more palatable as an outcome than losing the case, wasn’t it? Mrs Agnello: Well we didn’t have any other options.
As at 6 April 2017 the plaintiff was not in receipt of weekly workers compensation payments and had not been receiving an income from some time.
In addition, by that time the plaintiff was being pursued by a debt collector for money he owed to the Canberra Hospital and to a physiotherapist for a sum of money in the amount of $183,000. The plaintiff was not engaging in further treatment because he could not afford it. A further sum of $163,264 was said to be owed to Mr and Mrs Agresta related to the business venture and other agreements with respect to money. The family were entirely reliant on Mrs Agnello for financial support. The plaintiff submitted that his financial situation by 6 April 2017 was “temporary”, but it is difficult to see how this was so, given the many months he had been without an income and the advice the plaintiff had received from medical professionals about the state of his medical condition and his prospect of returning to work. The plaintiff certainly appreciated that his return to any kind of work was unlikely to be imminent.
Even accepting the suggestion of family support for some of the debt, the plaintiff and his wife clearly saw their own financial position as at 6 April 2017 as dire. So much so that Mrs Agnello considered settlement of the claim on that day as a “no brainer”. The following records revealed the plaintiff’s financial position as follows: (a) The Queanbeyan District Hospital’s Discharge Referral Baseline report from June 2016 recorded the plaintiff to have “dire financial stress presently”. (b) The Queanbeyan District Hospital Progress Notes from June 2016 noted “[c]lient states that he cannot work in his line of business (carpet cleaning) with a bad back. He has concerns regarding his family livelihood. He has lost a previous concreting business where he lost his home as he had to pay out his 40 employees. The stress could be compacting the pain” and “client now feels this is dejavu” and “doesn’t want to lose everything all over again”. (c) The file note of the plaintiff’s initial contact with the defendant in June 2016 recorded that the financial stress of not receiving any workers compensation payments and not earning a wage had resulted in the plaintiff being “prescribed anti-depressants”. (d) An email sent from Mr Bedi’s personal assistant to Mr Bedi on 9 February 2017 reported the plaintiff “becoming very stressed about money and losing his business. He is concerned he has a mortgage and 2 kids with no incoming [sic] coming in. Things are becoming very tight”. (e) In March 2017 Mrs Agnello sent an email to Mr Bedi in which she reported “I have been working 2 jobs at the moment to keep us afloat”. (f) In March 2017 the plaintiff sent an email to Mr Bedi stating “do you think it all going to work out for us I feel so sick thinking about it feels like my life is hanging by a string.”.
The submission that the counterfactual, which involved the plaintiff receiving ‘proper advice’ about the stabilisation of his medical condition and the prospect of ‘hiving off’ a ruling on the s 36B issue, would have resulted in instructions from the plaintiff to the defendant to press ahead with a determination of the state of connection issue and await stabilisation in his medical condition, did not grapple with the risks of that litigation strategy which the evidence suggested the plaintiff’s financial position could ill afford. For example, an appeal to this Court by the insurer if the s 36B issue was determined in the plaintiff’s favour, and the ongoing uncertainty of establishing the mechanism of his injury all while the ‘tap was turned off’ from weekly workers compensation payments and the plaintiff was incapable of work.
‘Proper’ advice to the plaintiff would have included the risk of him being without any form of compensation or income given the insurer’s approach to liability and the uncertainty of his capacity to return to work. There was no entitlement for the plaintiff to access workers compensation until both aspects of his claim were finally resolved in his favour and there was no guarantee of a favourable timeline. I am satisfied that the plaintiff instructed the defendant to settle his claim on 6 April 2017 in full knowledge of the issues which attended to the pursuit of his claim.
As the defendant highlighted, in the four-year period leading up to 2017 the plaintiff on average earned $20,301.25 per year. It is against this background and the debt he owed as at April 2017 (added to which was the potential of him not returning to work) that he agreed to settle his claim for $420,000.
As Mr Muller SC carefully explained (which the plaintiff’s submissions embraced) an insurer in agreeing to commute a workers compensation claim “buys out the worker’s right for an amount which is considerably less than a calculation of the entitlements of that person to workers compensation”. For a claimant, in addition to access to a lump sum amount, the settlement of a claim relieves them of the burden of engaging with the insurer and having their entitlement to workers compensation reviewed. The value of a lump sum settlement should not only be measured against the total amount of compensation a worker may receive if they were to remain on weekly compensation payments.
All of which is to say, the preparedness of a claimant to accept a lump sum settlement represents a preparedness to accept or have “transferred” to them the risk that the lump sum settlement may not cover the full ‘cost’ or ‘value’ of their injury. I am satisfied this advice was given clearly to the plaintiff. Mr Muller SC stressed the importance of “experience-based advice” because “there is a market rate for commutations of these claims and when you work in the system, you develop a good understanding of what insurers might be prepared to offer”. Mr Muller SC valued the plaintiff’s claim in 2017 as “worth” $500,000 to $600,000 if he was able to establish both aspects of his claim. The plaintiff’s assertion that he would have accepted proper advice to deal with the s 36B issue first, must be viewed through the prism of the financial pressures which plainly existed on 6 April 2017 and in the context of the matters which were known to him when he determined to settle his claim on that day. Despite a recording in the file note of 5 April 2017 to “not engage with offers” in so far as it may have represented the plaintiff’s position, he did engage with numerous offers on 6 April 2017.
The advice to the plaintiff was provided in circumstances where he knew that his medical condition had yet to stabilise, he knew that he was likely to require further medical treatment and he knew that his capacity for work in the future was entirely unknown. These were all matters raised by the Sergides report. The defendant’s advice to the plaintiff despite their failure to specifically advise him on the Sergides report took account of all those factors. Likewise, Mr Muller SC’s advice. In the face of that advice the plaintiff determined to settle his claim for a lump sum and Mr Muller SC signed off on the terms of settlement certifying that the agreed lump sum settlement was not manifestly inadequate.
The exigencies of the plaintiff’s circumstances were such that I cannot accept that had he received ‘proper advice’ from the defendant about the Sergides report he would have instructed the defendant on 6 April 2017 to delay resolution of his claim, on an unknown timeline. Put another way, based on the circumstances revealed by the evidence, I am not satisfied that had the defendant specifically advised him about the Sergides report, the plaintiff would have given instructions to first seek a ruling on the s 36B issue and await the stabilisation of his medical condition.

The plaintiff characterised his lost opportunity as the lost opportunity to engage in a market valuation by the workers compensation insurer, where the insurer buys out the worker’s rights for an amount which is considerably less than a calculation of the entitlements of that person to workers compensation.
The plaintiff accepted the evidence of Mr Muller SC that the ‘market’ for commuting his rights did not necessarily reflect what might have been the sum of his entitlements. A permanently incapacitated worker might see an insurer prepared to settle for a sum, that is ‘buy out’ the future weekly earnings of the worker for a particular period, depending on the nature and extent of their injury. The preparedness of an insurer to ‘buy out’ a worker’s entitlement to compensation therefore includes an assessment of the period that the insurer would otherwise be required to make workers compensation payments. For an injured worker, it might include an assessment of the prospect of a return to work, the ‘cost’ of ongoing engagement with the insurer (including any necessary litigation) and an analysis of the need for and cost of future medical treatment.
The plaintiff amended the ‘notional date of commutation’ (identified initially as 30 June 2021) in the quantification of the value of his lost opportunity, relying on the evidence of Mr Muller SC with respect to the market for the ‘risk transfer’ which attends to the willingness to commute. A worker can only determine to commute their entitlements to compensation if the insurer is willing.
The appropriate time for the valuation of the lost opportunity to commute was said by the plaintiff to be “probably in February 2019 once his condition had stabilised, in circumstances where he was a person who the insurer was likely to want to engage in a commutation with”. The plaintiff further relied on the evidence of Mr Muller SC when he estimated a market figure of $500,000 to $600,000 in March 2017 and accepted that by February 2019 in light of the plaintiff’s medical situation the figure would have risen in his quantification of the lost opportunity. The plaintiff submitted that the evidence of events after February 2019 (adopting that date as the reasonable time for commutation) is therefore irrelevant.
The admission of evidence “of later events” was considered in Johnson v Perex [1988] HCA 64; 166 CLR 351 at [368]-[369] per Wilson, Toohey and Gaudron JJ who observed that later evidence may be relevant “in a number of ways”. Relevantly, it may assist the court to place itself in the position of the trial judge at the notional trial when “a judgment was to be made of the likely losses that would be suffered” and to piece together “the case that could, but for the negligence of the solicitor, have been made out in the trial of the earlier action”.
The defendant pressed the relevance of the evidence of later events to the assessment of quantification of the value of the lost opportunity for three reasons: (a) The absence of evidence which demonstrated that either the insurer or the plaintiff would have sought or were able to consider commutation in February 2019. The defendant drew attention to the surgery performed on the plaintiff in March 2019 and beyond, including as recently as February 2024. (b) The evidence of ‘later events’ goes to a critical issue namely, the plaintiff’s work capacity and permits the court to ‘piece together’ the plaintiff’s medical condition at the time of any notional trial date. This was said to be particularly relevant because of the plaintiff’s consistent and unequivocal assertion that he has been unable to work since 2016. (c) The general rule as to the timing of the assessment of the quantification of the loss must give way when it is necessary in the interests of justice. Here the defendant relied on the observation of Mason CJ in Johnson v Perez at 357: The general rule that damages are assessed as at the date of breach or when the cause of action arose has been applied more uniformly in contract than in tort and for good reason. But even in contract cases courts depart form the general rule whenever it is necessary to do so in the interests of justice.
I accept that plaintiff’s submission that the evidence of Dr Bodel as to the plaintiff’s “clear” capacity to work as captured by the surveillance footage does not significantly influence an assessment of any lost opportunity to commute. The ‘risk transfer’ represented by commutation necessarily includes the possibility that a worker may return to work. Even a worker assessed as completely incapacitated at the time that commutation occurs. Mr Muller SC’s evidence demonstrated that an assessment of the possibility of a return to work informs the willingness of the insurer to ‘buy out’ the worker’s claim and the willingness of the worker to be ‘bought out’ by the insurer.
Dr Bodel concluded that the plaintiff was “clearly capable of work” and presented in the surveillance footage as “being functional at normal, or near normal, capacity for a person of his age. He has had medically a lot of stuff done with his back but he appears to function at a better level than he would lead us to believe”. As I have already observed this evidence was plainly relevant to the plaintiff’s reliability overall and specifically with respect to his representations as to the nature and extent of his injury which in turn influences an assessment of probability of his compensation claim succeeding.

The assessment of Mr Muller SC that the plaintiff had a 70:30 chance of the state of connection issue can be accepted. But this assessment attached to only one aspect of the plaintiff’s case. The position on medical causation for the plaintiff was very different. Consistent with Mr Muller SC’s evidence about this aspect of the case, medical causation represented another “fight” for the plaintiff to successfully establish his workers compensation claim.
I do not accept the plaintiff’s contention that it was Mr Muller SC’s view that the medical causation aspect of the plaintiff’s claim was “less significant” than the state of connection issue.
Mr Muller SC’s description of the state of connection issue as the “all or nothing” issue reflected the necessity for the plaintiff to succeed on that issue. Losing the state of connection issue did extinguish any hope the plaintiff might have had for workers compensation. Mr Muller SC was nonetheless very careful to explain that he considered there were real challenges for the plaintiff in establishing that the injury had occurred at work (see his evidence extracted above at [406]). This view was formed having conferenced with Mr and Mrs Agresta as well as understanding that it was the toilet collapse which had precipitated the plaintiff’s admission to hospital in the context of identifying variations in the plaintiff’s account.
I do not accept the plaintiff’s characterisation of the evidence which went to establishing that his injury occurred at work as “powerful”.
There was certainly evidence which supported the plaintiff’s version that he had suffered an incident while working on 20 May 2016. The evidence of Mr Agresta supported what became the plaintiff’s account of that incident to a degree, so too the evidence of Mrs Agnello. According to her statement, Mrs Agresta was also made aware of the incident.
It is unnecessary to repeat my conclusions about the significance of variations in the plaintiff’s account. The combined effect of the variations in those accounts was significantly detrimental to the plaintiff’s case on liability. As I have already observed Dr Bodel’s evidence in light of the surveillance footage was devastating to the plaintiff’s reliability; a significant factor in coming to assess the probability that he would succeed on his claim.
I formed this view acknowledging the existence of records in which the plaintiff asserted a fall. Those records could not overcome the combined weight of the inconsistencies in the plaintiff’s account.
In addition, the evidence which supported there being some incident at work did not confront the significance of the plaintiff’s collapse in the toilet to the injury with which he presented.
The plaintiff did not seek medical treatment at all until his collapse in the toilet which saw his transport to hospital. There were no medical assessments or observations made of his physical presentation between the time of the workplace incident and his presentation to hospital, days later, after he collapsed in the toilet and could not move.
None of the medical evidence squarely addressed the significance of the toilet collapse with respect to the plaintiff’s injury. In Dr Bodel’s case for example, it was not a matter drawn to his attention by the plaintiff. There was scant medical evidence which addressed any contribution of, or significance that might attach to, the toilet collapse to the plaintiff’s injury.
Dr Sergides did conclude that the plaintiff’s injury arose as a result of the ‘accident’ reported to him by the plaintiff. The plaintiff told Dr Sergides that after the workplace accident he had taken a day off work and then collapsed in the toilet while urinating. But the ‘accident’ the plaintiff described to Dr Sergides was not the same accident he came to describe in his evidence and elsewhere. Dr Sergides recorded the accident as occurring when the plaintiff noticed “sudden pain in his back and leg and had to stop” after engaging in “twisting and rotating” a “spinner” machine to clean a hard surface which comprised of tiles. Of course, in his evidence the plaintiff was adamant that the injury arose from a fall at work. The plaintiff’s collapse in the toilet, he explained in these proceedings, came two days after the workplace incident, he and his wife having travelled away for the weekend with some friends. The conclusion contained in the Sergides report was undermined by the variation it supported in the plaintiff’s version of events.
The nomination of February 2019 as a reasonable date for commutation is difficult to reconcile with the surgery the plaintiff went on to have in March 2019, June 2020 and February 2024. The plaintiff attended upon Dr Cree’s rooms in 2019 requesting further surgery because of his “ongoing severe pain syndrome”. Despite Dr Cree’s reservation about the capacity for further surgery to improve the plaintiff’s situation, Dr Cree was compelled to “give him the benefit of the doubt” and subsequently the surgery was performed. Despite this the plaintiff himself does not appear to have ever reached a point where he considered his medical position to be stabilised. Dr Bodel observed in his September 2021 report that the plaintiff did not consider that surgery had “helped” his medical condition.
The plaintiff’s contention that his case on the work-related injury was “powerful” seems to me to ignore, or at least gloss over, the significance of the plaintiff’s collapse in the toilet which precipitated his transfer to hospital in the assessment of his prospect of success on medical causation.
The occurrence of the toilet collapse was critical even without consideration of the issues which influenced the plaintiff’s reliability. In combination with the plaintiff’s reliability issues, the toilet collapse represented a major hurdle for the plaintiff’s prospects of establishing that the workplace incident was the cause of his injury.
The value of the lost opportunity requires substantial discount because, notwithstanding the 70:30 prospect of success on the state of connection issue, the probability of the plaintiff succeeding on the liability aspect of his claim, for the reasons I have identified, was low.
It should also be recalled that a determination of the state of connection issue in the plaintiff’s favour would not have resulted in an automatic reinstatement of weekly compensation payments or necessarily translated into a willingness on the insurers part to engage the plaintiff in commutation. The insurer had initially denied liability because of medical causation. For there to be a reinstatement of workers compensation payments the plaintiff needed to succeed on the liability issue as well.
It suffices to say that had I been required to quantify the plaintiff’s loss I would have applied the approach contended for by the defendant and applied a very substantial discount to the valuation of the lost opportunity to reflect my assessment of the combined effect of s 36B and medical causation on the plaintiff’s claim. The amended date of notional commutation put forward by the plaintiff, in my view, was not supported by the evidence. I would have applied the June 2021 date originally nominated by the plaintiff as the date for notional commutation and based on Mr Muller SC’s evidence with respect to the market value of the plaintiff’s claim in 2017, adopted the sum of $650,000 for the lost opportunity to commute. Given the conclusion I have made with respect to the establishment of causation on the breach of the duty owed by the defendant, to go into any further detail with respect to the figures contended for by the parties in my view is too artificial to be of any real utility.

Agnello v Maliganis Edwards Johnson

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