Alan Donald v Rail Corporation of New South Wales

Supreme Court of NSW|2015-06-24|Before: Campbell J

Solicitors: Acorn Lawyers (Plaintiff); Hicksons (First Defendant); Moray & Agnew (Second Defendant) File Number(s): 2010/349997

judgment

The plaintiff (Mr Donald) claims damages for personal injury allegedly suffered in the course of his employment in May and June 2008. This was labouring work involving jack hammering, the exertion of effort and strain in manhandling railway sleepers, and moving bags of rubble produced by the jackhammering. He claims to have suffered severe injury to his back.
The defendants are Rail Corporation New South Wales (Rail Corp) and Staff Innovations Pty Ltd (Staff Innovations). Mr Donald was a direct employee of Staff Innovations who hired his labour to Rail Corp to work under its supervision and system of work in maintaining the City Circle of the Sydney Metropolitan Railway Line.
Although Mr Donald has been paid workers' compensation for his injuries and their consequences since around August 2008, almost everything is said to be in issue according to the joint memorandum of issues in dispute, prepared by the legal representatives of the parties and filed on 27 April 2015. It is easier to say what is not in dispute: each defendant was an incorporated company; the plaintiff was employed by Staff Innovations; his labour was hired to Rail Corp; and he worked under Rail Corp's supervision in maintenance work involving the removal and installation of sleepers.

The issues

Several factual issues were strongly contested. Fundamentally, the first and second defendants join issue with the plaintiff that the back injury was sustained in the manner alleged, that is, that he suffered a back injury during the course of his employment with Staff Innovations while working under the supervision, and on the premises, of Rail Corp. Expert evidence attests to the existence of a spinal injury. Images of a left-sided disc prolapse at the L5/S1 level were observed on scans in late June 2008. While subsequent scans suggested that there had been some re-absorption of the protrusion, his condition was such that in April 2010 a spinal fusion at the L5/S1 was recommended and carried out.
Both defendants submit that the injury did not occur at work. They contend that the credibility of the plaintiff is limited and draw attention to the allegedly inconsistent accounts of his back injury provided to various medical practitioners prior to and after May 2008. The credibility of Mr Price, who was called to corroborate the plaintiff's account of events in May and June 2008, was also impugned.
Both defendants also take issue with the plaintiff's enunciation of the nature and content of their respective duties of care. The plaintiff argues that each defendant owed a duty to institute and maintain a safe system of work which, in this case, extended to ensuring that the work included a system of task rotation, such that no individual worker would operate the jackhammer for longer than 20 minutes at a time. Rail Corp responded that workers were allowed to take as many breaks as they wished and that such a system of work rotation was already in place. The men (there were no women) were required to work in teams of two so that they would alternate between tasks, and each worker had the opportunity for a 5-20 minute break after using the jackhammer while subsequent necessary tasks could be carried out.
Staff Innovations maintain that it was not negligent. It accepts, as direct employer, that it owed a non-delegable duty of care. However, its case is that was not in a position to exercise control of the work even by simply making enquires about, or inspections of, the system of work let alone by actually prescribing the system and enforcing its maintenance to ensure task rotation. Staff Innovations further relies on the circumstance that Rail Corp was in possession of the worksite; in control of the work; and devised the system of work to assert that any injury suffered by the plaintiff by departure from the system prescribed was not the materialisation of a risk of harm reasonably foreseeable by an employer in its position.
It is the plaintiff's case that the failure to ensure rotation of work tasks was a necessary condition of his back injury. Rail Corp joins issue with this, maintaining that Mr Donald suffered no such injury whilst at work. Rather, it says that the back pain complained of was caused by a serious assault in 2001. Rail Corp acknowledges that he reported an incident at work in May 2008, but he lost only one shift from work, returning with a medical clearance for his usual work. Thereafter the plaintiff performed that usual work until it was withdrawn in June 2008; kept up his frequent gym attendances, sometimes twice on one day, where he lifted weights; and later performed similar work on the railway with another labour hire firm.
Staff Innovations says that even had it made enquires about, or inspections of, the working conditions, it would have been told, or ascertained, that the system of work required task-rotation. Such enquiries, therefore, would not have disclosed the risk of injury, and they were in no position to take reasonable care to obviate it.
Both defendants insist that the plaintiff was himself negligent. The plaintiff had a duty to do the work only as trained and, if his account is believed, he did not follow that training. Moreover, he was under a duty to take all reasonable steps to avoid injury. If he was injured because he failed to rotate his work tasks with his workmate, that was his own fault. Accordingly, there should be a finding of contributory negligence, assessed in the range of 15%- 20%. The Mr Donald argues that for such a claim to be made out, the defendants must prove disobedience by him of directions from them about how the work was to be performed. The plaintiff says there is no evidence of this.
The defendants disagree about the apportionment of any liability I might find. Staff Innovations maintains that if liable their share should be much less than that of Rail Corp. Rail Corp was the occupier of the premises, with control and management of them. Rail Corp organised the system of work and provided all plant and equipment for use by the workers. Rail Corp exercised actual control of the workers. As such, Staff Innovations submit that their share of any liability should be assessed as 0%.
Conversely, Rail Corp argues that Staff Innovations were directly involved in the work. This is evidenced by the plaintiff's frequent communication with Staff Innovations, through Mr Bamford, who controlled the company. Mr Bamford regularly attended the work site.
There is the usual array of issues about quantum.

Mr Donald's background

To resolve the issues in this case, it is necessary to say something now about Mr Donald's background. Mr Donald was born on 16 August 1975 and accordingly was aged 32 years when he last worked at Rail Corp; 40 at the date of hearing; and 41 now. It is fair to say that he has had something of a difficult, indeed troubled background. He was not a good scholar. Family changes led to frequent changes of school. Although he completed year 10 of high school, he was not awarded a school certificate. He had difficulties with the basics of reading, writing and maths.
After leaving school he worked as a deckhand on a fishing trawler out of Wollongong Harbour for 6 or 7 years. He eventually left that work because he was dissatisfied with his earnings. He was later trained by his father in work as a machine operator. His father operated a tipper-truck and bobcat as an excavation sub-contractor. When his father died suddenly in about 2002, Mr Donald took over the excavation business and continued in that work until he found it uneconomical to repair the equipment. He was able to sell the truck and bobcat. He began working as a machine operator for wages for various employers until around 2007 when he decided to work as a labourer. He put his name down with a number of labour hire companies including Drake Personnel, Multi Civil and Rail and Staff Innovations.
He started on the work with Staff Innovations replacing sleepers in the City Circle tunnels on 25 August 2007. He continued in this work until 14 June 2008.
I think it can be said without any fear of contradiction, that in his late teens and early twenties, Mr Donald developed a real problem with alcohol. When intoxicated he became very aggressive and was involved in a number of fights. A summary of the records of Wollongong Hospital tendered in evidence discloses as many as 16 attendances at its Emergency Department between 20 August 1995 and 21 December 2008 for consequences of drunken violence of one kind or another. There were many other attendances for injury and illness.
Of the 16 attendances I have mentioned, that of 25 August 2001 assumed some significance in the case. Rail Corp argued, based on a history recorded in the Illawarra Brain Injury Service (IBIS) notes of 21 and 25 June 2008, that the assault of 25 August 2001 was the cause and origin of any back injury. For Mr Donald it was argued that his obvious difficulties as a witness, in particular, his overt combativeness, was due to a closed head injury suffered in this assault.
Mr Donald's account is that he was a victim of a vicious assault outside the Harp Hotel in Wollongong. He describes being set upon by a large group of people and ending up in hospital. He says he woke up four days after the assault with no recollection of the lost time. He believes he suffered head injuries including traumatic brain damage.
Wollongong Hospital's records show that Mr Donald was brought in by ambulance following an assault. He had been unconscious at the scene with facial injuries. He was obviously intoxicated. He was unresponsive to verbal stimuli, but responded to touch. He was treated as an inpatient between 25 and 30 August 2001. The diagnosis was of seizures following head injury. Three CT scans of the brain did not show any focal lesion or frank injury to the brain. He did not co-operate with the administration of the post traumatic amnesia assessment (PTA) on 29 August 2001, seeking to discharge himself contrary to the advice of his doctors and family. He was discharged on 30 August 2001 with a PTA score of 6/7. He was said to be unsure of the day of the week. A further CT scan of the brain on 14 February 2002, when he was admitted following another altercation in which he fell on his left elbow, again showed no focal lesion. Nor did a further CT scan of 12 March 2002.
It is also relevant to record here that his propensity to drunken violence brought him into contact with the criminal justice system, including the parole and probation service. It was this service that referred him to IBIS.

Was the plaintiff injured working for Rail Corp

The plaintiff's case is that he suffered back injury because of the nature and conditions of his employment at Rail Corp. It will be necessary to descend into some detail about the nature of this work in dealing with negligence issues. For present purposes, it is sufficient to say that, in my judgment, it is very heavy labouring work. The work involved the removal of old timber sleepers and their replacement with polymer sleepers. The old sleepers were released from their concrete beds by jackhammer. They were then cut by chain-saw, and manhandled out of position. Their former beds were cleaned up with the jackhammer to prepare for replacement with the new polymer sleepers. They too were manhandled into position and formed-up for concreting them into place. The rubble produced by the jackhammering was shovelled into bags. This also struck me as heavy work. Mr Donald said some of the bags weighed 30kg when filled. The bags were then moved by hand to one side of the track. They had to be picked up later onto the back of a truck for disposal.
Mr Donald worked on the nightshift. The hours of actual work were mostly limited by the consideration that only restricted "possession" of the track was available to the work teams. The team Mr Donald worked in assembled in Wollongong and travelled to Sydney where they remained on standby until "possession" could be taken of the section of track to be worked on that night. It may be that on many, if not most nights, only about 4 hours of physical labour was required. Mr Donald usually worked 32 hours per week but weekend overtime, dayshift work was available from time to time and these shifts were longer. Mr Donald took the available overtime.
The jackhammer weighed 41 kilograms. The new sleepers were mostly half sleepers with a full sleeper installed at regular intervals. They also were heavy according to Mr Donald, weighing about 20 kilograms. The old timber sleepers were said to weigh about 80 kilograms, which does not sound right. Before they were removed, as I have said, a worker cut a section from their middle with a chain saw, so they were removed in three sections. The middle section was somewhat shorter than the ends. Rail Corp's expert ergonomist, Mr Horrigan (Exhibit 1D13(A)) estimated the weight of the end section of a timber sleeper at 30 kilograms and the polymer short sleepers at 20 kilograms.

The plaintiff's case on injury

A case pleaded as a "nature and conditions count" normally implies the absence of a frank injury. Such a case is one of injury received through the accumulation of minor traumata. Notwithstanding his pleading, Mr Donald relies upon the occurrence of two incidents at work. The first is said to have occurred on the night of 12 May 2008, in reality the early hours of 13 May 2008. He said (Exhibit A1): "I felt my back getting sore. It was like a "twinge". I reported it to my boss." Mr Donald said he finished his shift, but his back was still sore when he woke up and he attended a Dr Hofer, because he could not get in to see his usual doctor, Dr Ajam.
A WorkCover medical certificate under the hand of Dr Hofer is attached to Exhibit A1. In the section to "be completed by the injured worker", the question "how the injury occurred" has been left blank. Dr Hofer diagnosed a lower back strain, and certified Mr Donald as unfit for the shift of 13 May 2008 but fit for pre-injury duties from 14 May 2008, which latter date the certificate bears. I interpolate that there was a conversation between Mr Donald and Staff Innovations' Mr Bamford about him missing the shift of 13 May 2008. I infer that Mr Bamford told Mr Donald he needed a clearance for work if he intended to return to work that night. I also accept that Mr Donald was keen to work and to minimise any loss of time. I accept that when he signed in for work on 14 May, he signed, what I will refer to as, the time sheet, indicating that he had no injury or disability affecting his fitness for work.
As I will deal with below, part of Mr Donald's case is that the partner with whom he had worked since his commencement on the work in the tunnels, Mr Gonzales, was an older man who, in Mr Donald's terms, "refused to do any jackhammering" (Exhibit A1 [35]). Within a couple of days of his return to work, Mr Donald said he was given a new co-worker, Albert Price. Mr Donald and Mr Price had known each other previously. Mr Donald said that he had requested to be paired with him on occasions prior to 'the alleged injury.' After they were teamed up, Mr Donald said "Mr Price did all the jackhammering" (Exhibit A1 [89]).
The second incident that Mr Donald relies upon is said to have occurred on 12 June 2008. I infer from his evidence that notwithstanding his return to work on normal duties with a clearance, his back continued to bother him in the performance of his work. Mr Donald's evidence is (Exhibit A1 [90]): "After a few weeks, on or about 12 June 2008, I was feeling better from the break from jackhammering and I was also feeling guilty that Albert had been carrying me for the last few weeks and I asked Albert to let me have a go on the hammer. I was only able to do 1 sleeper, and didn't even finish that, before I realised I couldn't go any further." He had to stop and sit down. He said, "I couldn't move and I was in agony". He said he reported the injury to a Rail Corp employee he knew as "Pincho" (Mr Steve Thompson) and lay down in the truck until the completion of the shift, without performing any further work. He also said that this was his last shift working for Rail Corp. I should interpolate that the records show that 12 June was a Thursday and that his last shift was Saturday 14 June 2008. He was supposed to work on Sunday 15 June, but failed to attend (59.35 - 61.25T).
Mr Albert Price was called to corroborate some of these circumstances. Giving evidence on 2 November 2015, Mr Price remembered Mr Donald complaining about having a "sore back" because Mr Donald "was doing all the jackhammering" (306.35 - .50T). Mr Price said that this was just before he became his partner "to help him" (307.15T). After about "a month" (308.25T) of this arrangement, Mr Donald "wanted (a) turn (on) the hammer" (308.40T). Mr Price said (308.50T - 309.5T): "Within a few minutes ‑ that I've just got in the drain and he's laying beside me with a hammer almost on top of him screaming in pain. Q. Did he say anything A. Yeah. "My back. My back." Something along them lines. (sic) Q. So he's laying in the drain you said? A. Yeah." There is a drainage ditch below the track in the middle of the line. He said that Mr Gonzales and Mr Thompson were there, I infer in the near vicinity, and Mr Thompson asked Mr Donald to get up (309.50T). Mr Price said that Mr Thompson coaxed Mr Donald to his feet and said "we're going to have to report this, Alan". Mr Donald went to the truck. Mr Price did not see him at work again.
Mr Burbidge QC, who appeared with Mr Casselden for Rail Corp, cross-examined Mr Price with a rhetorical air of incredulity. But he did not put to him that he was lying about the dramatic circumstances of the injury he described. Nonetheless, it is self-evident that the circumstances described by the plaintiff and Mr Price in relation to the second incident, had they occurred as they recounted, could hardly have gone unnoticed by others and one would expect they would have been reported contemporaneously if Mr Thompson had taken Mr Donald away for that purpose and to rest in the truck. But no such records were put in evidence. I flag here, however, that Mr Campbell SC, who appeared with Mr Longhurst for Mr Donald, made complaints about what he regarded as inadequate compliance by Rail Corp with a subpoena or notice to produce.

Rail Corp's contemporaneous records

Rail Corp relied upon a variety of circumstances to resist Mr Donald's case in relation to the occurrence of injury. I think it fair to say that Rail Corp was prepared to accept that something relatively minor, or inconsequential, may have occurred on 13 May 2008, but it strenuously resisted the suggestion that the plaintiff had proved any injury, let alone significant injury occurring on or about 12 June 2008. Among these circumstances it is convenient to start with Rail Corp's records.
Rail Corp read a statement from Darin Ramaswmy (Exhibit 1D [16]) employed as a team leader in its Injury and Claims Management Team. He described the system for reporting injuries and produced a computer printout of a report of injury at 1am on 13 May 2008 by a person working jackhammering sleepers in the Sydney underground. The person is identified as "anonymous" indicating in the recording system that he was the employee of a contractor. The injury was said to have been reported to Mr Steve Thompson and the "notifier name" is "Alan Donald". This is clearly a report of injury by Mr Donald at that time and on that day, probably facilitated by Mr Steve Thompson.
Mr Ramaswmy searched for records of injury "in the Circular Quay tunnel on 13 and or 14 June 2008". He stated there was no record of any injury to Mr Donald for those dates.
Mr Ramaswmy also provided a spreadsheet on DVD of all injury reports for 2008 including to workers in the underground tunnel in 2008. Mr Donald's injury of 13 May 2008 is recorded with the number, 1536. The nature of the injury, i.e. back injury, does not appear. There appear to be no other reports of injury "jackhammering sleepers". I do note in passing, however, that there are other complaints of lower back injury from manual-handling work. See, for example, 1487 and 1488 on 9 May 2008.

Mr Thompson's evidence

In his statement (Exhibit 1D [11] at [47]) Mr Thompson said: "I think Alan said something about his back at the end of the night being sore and I told him to take it easy and lie down in the truck. It is the first and only time he told me anything about his back. He did not say he had injured himself". (My emphasis.) He dated this complaint to "around May/June 2008" at [65].
In cross-examination Mr Thompson said that Mr Donald "came to me and said he had a sore back" (551.25T). He only remembered Mr Donald coming to him; something about a sore back; him lying down in the truck; and mentioning the hotline (to report the injury). He cannot remember the details because "it was too far back" (551.40 - .45T). Although his recollection was, understandably, somewhat vague, he seems sure that "a sore back" was mentioned by Mr McDonald once only. When asked whether it was possible that there were two such reports, he answered "no, it was just once".
To my mind this sounds more like what is said to have happened on 13 May 2008 than 12 June 2008. But it is significant to my mind that he recalls telling Mr Donald to take a break from work by lying down in the truck.

Records of Illawarra Brain Injury Service

Mr Donald was referred to the IBIS, by Wollongong Probation and Parole Service on 18 April 2008 for investigation of ongoing difficulties which may have been related to the assault of 25 August 2001 (Exhibit 1D [24]), which I infer was part of the latter service's supervision of Mr Donald pursuant to a bond. The initial assessment form dated 30 May 2008 records the nature of his injury as a traumatic brain injury following the assault on 25 August 2001, and current medical issues as "lower back pain on left side with sciatic pain". I interpolate this is just over two weeks after the alleged incident of 13 May 2008. The records also recorded that he was claiming, or had claimed, Victims Compensation.
I would not have regarded this entry as indicating a history received from Mr Donald of back injury on 25 August 2001. The current medical issue is not connected to the history of the incident.
Ms Emma Calvert, a speech pathologist and IBIS's rehabilitation co-ordinator reported to Mr Donald's former GP, Dr De Silva, on 12 June 2008. Ms Calvert reports a complaint of left side back pain, but does not expressly relate it to the earlier assault. She records that Mr Donald "more recently does a lot of jackhammering in his labouring work for the railways" and recommends that he be seen by Dr Jonathon Wyatt, a rehabilitation specialist, to investigate, inter alia, the back pain.
Dr Wyatt's handwritten note of 25 June 2008 is almost impossible for me to decipher. But in a report to the same GP, bearing that date, he records: "I reviewed Alan Donald, aged 34 in the Illawarra Brain Injury Out Patients Department today at the request of his case manager, in regards to his ongoing low back pain following an assault in 2001 resulting in a head injury. In brief, Alan describes ongoing back pain since the assault in 2001. He denies any back pain prior to the assault". The report also records: "Alan works part-time for Rail Corp as a labourer which involves using a jackhammer, which significantly increases his pain. He apparently does have a workers' compensation case pending, although he is unclear on the details." There was no workers' compensation claim at that time. Dr Wyatt diagnosed "significant mechanical/discogenic low back pain as a result of the assault".
I interpolate that the GP replied that Mr Donald had last consulted him on 24 November 2003 and that he knew nothing of any "work related injury" or "pending workers' compensation case". Mr Donald saw Dr Wyatt again on 29 October 2008 and did not give any further history. He continued to see Dr Wyatt on a number of subsequent occasions.
On 3 October 2008 Mr Donald spoke to Ms Calvert by telephone reporting a "recent back injury at work" and stated that he was off work with a medical certificate on workers' compensation. In her Discharge Summary prepared on or about 11 June 2009, Ms Calvert recorded the following: "On 3 October 2008, Alan reported a workplace back injury which he stated occurred several weeks prior. He reported that he was off work with a medical certificate from his GP for at least one month. He reported severe back pain since then and has been unable to participate in a rehabilitation program through IBIS as planned due to pain, anxiety and tendency to become easily overwhelmed with intervention. His girlfriend has since clarified that the workplace injury actually occurred on 15/5/08 (i.e. prior to his initial contact with IBIS). Alan chose not to declare this information to myself or Dr Wyatt during initial case histories, therefore the back pain reported by Alan, was attributed to the assault which occurred in 2001, not the workplace injury in 2008. This was based on the information Alan provided at the time." (My emphasis) I interpolate, it is clear that there was no history of any incident of 12 June 2008 given to IBIS at any time.
Rail Corp argued that this material supported its argument that the incident of 13 May 2008 was inconsequential and no incident like that described by Mr Donald occurred on 12 June 2008. It went further and argued that I could not be satisfied on the balance of probabilities that Mr Donald's back injury was not caused by the assault of 25 August 2001.

Evidence of Mr Donald and his partner, Ms Stevens, about contact with IBIS

When cross-examined about the history recorded in the IBIS notes of back pain since 2001, the plaintiff denied giving IBIS any account of back pain and then said: "not that I know of" (84.5T). He agreed that he "made no reference whatsoever when sitting down with the initial consultation with the IBIS people … of any workplace accident" (85.15T). Although his memory was faulty, he was seeing IBIS about his brain injury and he accepted that he probably did not mention a work injury until 3 October 2008 (86.20T). He then said "I am not sure, I can't remember back that far" (86.45T). I note that he did in fact mention the effect of heavy jackhammering on his back when he saw Dr Wyatt on 25 June 2008.
Ms Tara Stevens was cross-examined about her contact with IBIS. She said she became aware that Mr Donald's back injury was being attributed by IBIS to the 2001 incident when she was reviewing Mr Donald's workers' compensation documents for him: (379.23 - 31T). She says she took the opportunity to clarify the date (374.34T).

The pattern of the plaintiff's gym attendance

During 2007 and 2008, Mr Donald was a member of the University Recreation and Acquatic Centre. Rail Corp tendered a record of his attendances at that gym between 27 September 2007 and 8 October 2008. He was a very frequent attender. It was said that this indicates that he must have had no back injury (Exhibit 1D1); although I note that the records of IBIS (Exhibit 1D24) record a history of a gym program prescribed as part of his rehabilitation after the work injury.
He attended the gym at 9:50 on 12 May 2008 and not again until 19 May 2008. This is an unusual gap. He did not attend between 11 and 16 June 2008, but on the latter date he attended twice. He attended twice again on 16 July 2008 and he attended frequently on consecutive days. Over the period of about 12 months he attended 124 times.

Other medical histories

As I have already recorded, Dr Hoffer, who was in practice with Dr Ajam, recorded a history as strained lower back at work on 12 May 2018. Mr Donald consulted Dr Ajam about this matter on 18 June 2008. His record is as follows: Works with a jackhammer - 70 kilograms and he bends forward for most of the day and as the pick has been sharpened regularly which shortens it and hence he needs to bend more each time he does. (sic)
Dr Ajam provided Mr Donald with a WorkCover Certificate (see exhibit W) which gave the date of injury as 12 May 2008 and the history: Worked with jackhammer, lots of forward bending Dr Ajam's diagnosis was acute back injury/query lumbar disc protrusion/sacro iliac strain.
After a period of conservative treatment, Dr Ajam referred Mr Donald to Dr Cherukuri, a neurosurgeon, in the early part of 2009. In his report of 17 March 2009, the specialist records (Exhibit 1D28): Many thanks for referring Mr Donald who presents to my rooms with a history of acute onset of back pain when he was working on the railway sleepers in May 2008 using a jackhammer. He had intense onset of pain and has stopped work. For the past 3 months he noticed the pain radiating down the left leg up to the knee. He also reports paraesthesia in the left leg, predominantly involving the little toe. There is no history of numbness. It's convenient to interpolate that on examination, Dr Cherukuri found "a minimal weakness of the left extensor halluces longus, which could be partially contributed by pain. He has diminished sensation over left S1 dermatomal distribution and minimal altered sensation over the left L5 dermatomal distribution. The reflexes are elicited well and are symmetrical." Dr Cherukuri noticed evidence of lumbar spondylosis and left L5/S1 disc protrusion on CT Scan. He concluded: I have advised MRI scan for Mr Donald in view of persistent left sided sciatica and recent worsening of his symptoms with radiculopathy.
In addition, Dr Manahor who saw Mr Donald on 23 May 2009 received a history of injury on 12 May 2008 "working on the jackhammer". Dr Bodel, who first saw Mr Donald on 11 May 2009 for the workers' compensation insurer, received a history of injury on 13 May 2008. Dr Bodel's history was of a steady build-up of pain for a week and a sudden deterioration on 13 May 2008.
Mr Donald saw Dr Maxwell for Rail Corp on 12 January 2011. Dr Maxwell received a very similar history to that received by Dr Bodel of a development of back pain in early May 2008 while jackhammering, which was getting gradually worse. He received a history of worsening on 13 May 2008 in circumstances which sound very much like Mr Donald's evidence about what happened on 12 June 2008.
I will not detail all of the medical reports which were referred to by Rail Corp in its submissions on this point. But other than an assessment report of 15 December 2009, which simply records a report of lower back injury on 13 June 2008 whilst performing jackhammer duties, the overwhelming impression from considering the medical reports, voluminous as they are in this case, is that the date of injury given by Mr Donald in medical histories is around 13 May 2008 and not 12 (or 13) June 2008.

The circumstances of the plaintiff leaving employment

I have already said that the evidence shows that the plaintiff's last day of employment was 14 June, not 12 June, 2008. He accepted that he was supposed to work on 15 June, but did not. He also accepted that he put this down to the flu, not his back, when he spoke to Mr Bamford. Mr Bamford's statement was admitted as Exhibit 1D26.
Mr Bamford states (page 5 [28]) that Jim Iordanidis, a Rail Corp supervisor who also gave evidence, telephoned to inform Mr Bamford that Mr Donald had suffered an injury. This is the injury of 13 May 2008. Mr Steve Thompson had reported to Mr Iordanidis that Mr Donald had complained of a sore back jackhammering. Mr Bamford entered the details in the Staff Innovations Injury Register (Exhibit 1D [26] I) and subsequently completed an Accident Investigation Report (Exhibit 1D [26] J), although that latter document was not completed until 30 June 2008.
Mr Bamford spoke to Mr Donald about the matter and was told the latter felt better after a hot shower and Dencorub. Mr Donald expressed the intention of returning to work that evening. But Mr Bamford said "you should not go to work this evening. Go and see a doctor and get the all clear before you return to work." Mr Donald provided him with a copy of Dr Hofer's WorkCover Certificate on a later date.
Mr Bamford heard nothing further about any back injury before receiving a complaint about Mr Donald's non-attendance on 15 June 2008. At the same time, he was informed that the sleeper replacement work would be suspended during the period of the World Youth Day Festival. It had also been determined that two workers would need to be stood down for an additional three weeks due to budgetary restraints. One of those nominated was Mr Donald.
When Mr Bamford spoke to Mr Donald he informed him that he would not be required to work for the next six weeks. Mr Donald called him back on 17 June, this was before he saw Dr Ajam, telling him that he would face financial difficulty and that he intended to make a claim for the back injury sustained on 13 May 2008 (there was no mention of 12 June). He informed him that he was going to see a doctor about the matter. As will be recalled Mr Donald did see Dr Ajam the following day, 18 June 2008.
As I mentioned above, one of the labour hire companies Mr Donald signed up with was Multi Civil and Rail Services Pty Ltd. It is not without significance that its records show that Mr Donald earned $900 gross for 20 hours work with that company during the pay period 16 June 2008 to 22 June 2008. This work was performed on the weekend of 20 and 21 June 2008. This circumstance is not necessarily inconsistent with injury, but it does seem to be inconsistent with a dramatic event occurring on 12 June 2008 after which the plaintiff could not work again.
It should also be said when cross-examined about this topic, Mr Donald freely admitted performing the 2 days of work each of 10 hours on the weekend shift with this company (122.5 - .25T). I accept it may have been the case that he performed the work with difficulty.

Workers' compensation form

Mr Donald signed a workers' injury claim form on 7 July 2008. Apparently it was not received by Staff Innovations until 22 August 2008 (Exhibit 1D2). It gave the date and time of injury as 12 May 2008 at 2am and the cause of injury as jackhammering sleepers in tunnel. Mr Price was said to be a witness.

Findings on evidence

This body of evidence referred to by Rail Corp is by and large based upon contemporaneous records. The evidence of Mr Donald and Mr Price is based upon their recollection of events when giving evidence 7 years later. Mr Donald received a significant head injury which apparently affects his powers of recall. Mr Price had not been asked to consider his recollection until many years after the events.
In my view, this body of evidence is overwhelming. In the face of it, I am not persuaded on the balance of probabilities that any injury occurred on 12 June 2008 in the Circular Quay tunnel, and certainly not an injury occurring in circumstances as dramatic as those described by Mr Donald and Mr Price. Rather, it seems clear that Mr Donald worked up until 14 June 2008, was absent from work on 15 June for reasons unconnected with a back injury and then was informed by Mr Bamford on 17 June 2008 that he was being stood down for a number of weeks due to budgetary constraints and the cessation of work during what I infer was an expected tourist surge on the train network around World Youth Day in 2008. The circumstance that he was able to work, in some fashion or another with Civil Multi and Rail the following weekend is also significantly inconsistent with Mr Donald's version of events about what occurred on 12 June 2008. He was surprisingly slow completing and lodging his claim for workers' compensation in circumstances where he was obviously keen to keep earning. This is a minor, but not insignificant factor in making a finding that no injury occurred on 12 June 2008.
Conversely, much of this same contemporaneous material strongly points to the occurrence of an injury, or the culmination of an injurious process, on 13 May 2008. It is apparent that Mr Steve Thompson was aware of it and facilitated Mr Donald's compliance with procedures by reporting the matter to the "injury hotline". A contemporaneous record of that report was made. Moreover, Exhibit A to Mr Ramasawmy's statement demonstrates that a record of injury has been maintained. Mr Iordanidis reported the matter to Mr Bamford of Staff Innovations who created a record of it. Mr Bamford also spoke to Mr Donald about it and received contemporaneous confirmation from him that the injury had occurred. At Mr Bamford's insistence, Mr Donald attended Dr Hoffer; made a report of injury; and received a medical certificate for the one shift he lost together with a clearance to return to work.
Moreover, all of the contemporaneous records and histories given to doctors around this time are consistent with the plaintiff's evidence about what happened on 13 May 2008, namely that he suffered some sort of back injury jackhammering. Notwithstanding that in some of his evidence Dr Maxwell (714.5 - .30T) took the stance that "hard work never hurt anyone", it is not implausible that performance of heavy labouring work of the type Mr Donald was required to perform in the course of his work at Rail Corp will produce a back injury.
Dr Bodel was of a different view to Dr Maxwell (706.5 - .35T). Notwithstanding his more robust approach, Dr Maxwell accepted that "labourers do hurt their backs at work" and that there may be "a connection between the back injury and the work" (708.35 - .45T). In my view, this accords with common experience.
Indeed, in their joint report of 11 April 2013 (forming part of Exhibit 1D 14A) both Dr Bodel and Dr Maxwell agreed: … the initial diagnosis was an L5/S1 disc protrusion to the left, which from the history provided appears to have occurred on or about 8 May 2008.
They both agreed "that there is probably a pre-existing degenerative condition at the L5/S1 level, which may have been partially responsible for the original disc protrusion …". Dr Maxwell later resiled from this agreement because he formed a different view of the MRI scan performed on 27 March 2009 once he viewed the actual scan rather than the report (see report 18/6/2013 part of Exhibit 14A), however, the point at this stage is that implicit in the agreement is the consideration that the type of work Mr Donald was performing on 13 May 2008 was capable of causing an injury to the spinous processes of his lower back.
I find that Mr Donald did suffer low back injury in the course of his employment on 13 May 2008. The nature and the extent of the injury will be discussed later in these reasons. But given Mr Thompson's evidence it was probably more significant than Mr Donald's own account suggests.

Did Mr Donald injure his back in 2001?

I turn then to whether Mr Donald has satisfied me on the balance of probabilities that he did not suffer back injury on 25 August 2001 when he was assaulted. It must be said that the two are not mutually exclusive. It is conceptually possible that he may have suffered the original injury on 25 August 2001 which was later aggravated on 13 May 2008 in a material way. There may have been separate injuries on each of those days. However, I have concluded that he did not suffer a back injury on 25 August 2001.
Due to Mr Donald's difficulties as a witness, and the great effluxion of time since all of these events occurred, I have relied as far as possible on contemporaneous records, at least to the extent to which they, from their context, seem reliable.
There is no suggestion that Mr Donald suffered a back injury in 2001 until after the occurrence of 13 May 2008. None of the many subsequent attendances at Wollongong Hospital for various matters after his discharge on 30 August 2001 reveal any complaint about any back pain. When Ms Calvert first looked at his file on 23 April 2008, the only matter of interest was the clarification of the likelihood of a traumatic brain injury. When she spoke to Mr Donald on 30 April 2008, two weeks before the injury, she took a very detailed history of his difficulties, which seemed to relate to apparent cognitive and psychological issues such as ongoing memory difficulties, increased stress and anger and mood fluctuations. At that time she recorded: Continues to work three night shifts on railways - no problems reported. I emphasise, there is no record of any back injury anywhere at that time. The first mention of back injury is in her initial assessment form of 30 May 2008. As I have already said, at that time under the heading "Current Medical Issues" she records a complaint of lower back pain on his left side with sciatic pain. It's not apparent at that time that Mr Donald was relating that matter to the 2001 assault, although given Ms Calvert's letter to Dr De Silva, she may have thought he was. This seems to me likely given the explanation proffered by Ms Calvert in the discharge summary quoted above. By the time Mr Donald saw Dr Wyatt on 25 June, it's hard to conclude other than that he was content for IBIS to associate the back injury with the assault on 25 August 2001. And there is force in Rail Corp's submission that he must have considered he had something to gain from maintaining that position. There does seem to be something in the argument that he attempted to quarantine any workers' compensation claim from whatever he hoped to get from his involvement with IBIS. At the same time, he did mention the jackhammering made his back pain worse (as at 25 June 2008) and he was bringing a workers' compensation claim in respect of it. Of course, at that time he hadn't even lodged a claim form, although he then intended to, which might explain a degree of "caginess" about that topic.
By the time he tried to unravel these matters on or about 3 October 2008, he was hardly clear about it, which may in part relate to his other issues. However, I accept that when Ms Stevens spoke to IBIS about this confusion, she was well-motivated, attempting to clarify the confusion which she appreciated had been engendered by Mr Donald.
A further matter is that it seems clear that Mr Donald was able to perform hard physical semi-skilled and unskilled work over the intervening period between August 2001 and May 2008. This is not of itself a very significant matter in the circumstances of this case given that he persisted at Rail Corp after 13 May 2008, only ceasing that work when it was withdrawn and even attempting other labouring work the following weekend. Still, it has its part to play in my thinking.
Essentially, the absence of any contemporaneous suggestion of back injury because of the assault on 25 August 2001, but also for the other reasons I have expressed, lead me to conclude that no back injury was suffered at that time.

Mr Donald's credit

That, however, raises other issues. Juries are commonly directed that they may accept and reject different parts of a witness's evidence. Essentially, that is what I have done in my findings on injury. I have certainly rejected the evidence of Mr Price, that is to say, I am not persuaded on the balance of probabilities that his account of injury to Mr Donald is reliable. It follows that not all of the evidence of Mr Donald is reliable. In particular, making every allowance for whatever pre-existing cognitive and emotional problems Mr Donald may suffer, which may account for his combative demeanour and poor memory, I have a lingering suspicion that he is liable to say what he thinks might help his case as he sees it and this makes it difficult to accept what he says at face value. It was not put to him that he was deliberately lying and I make no such finding. But credibility involves reliability and, for the various reasons I have discussed, there are questions about Mr Donald's credit which I will bear in mind as I address the other issues in the case.

Issues of legal liability

In my opinion the relationship amongst the parties in this case is on all fours with the category of case discussed by the Court of Appeal in TNT Australia Pty Ltd v Christie (2003) 65 NSWLR 1; [2003] NSWCA 47. That is to say, Mr Donald was an employee of Staff Innovations whose services were lent to Rail Corp to work under the latter's supervision and in a system of work devised, instituted and maintained by it. Rail Corp owed Mr Donald a duty of care analogous to the duty owed by an employer to an employee. Basten JA discussed Christie and subsequent cases in Bostik Australia Pty Ltd v Liddiard & Anor [2009] NSWCA 167. At [139] his Honour distilled the following principle: "The fact that an employer may be obliged to take reasonable steps to provide a worker with a safe system of work, does not preclude the existence of a duty owed by others to take reasonable care in their dealings with the worker, whether they be other employees, independent contractors, the occupier of premises which the worker is required to attend in the course of employment or other road users encountered in the course of travel. Where work is undertaken on the premises of a third party, that party may have a duty, which commonly arises from: the degree of control or direction exercised or which the third party is entitled to exercise over the worker; the condition of plant or premises under the control of the third party, or the activities of others on the site, generally for the purposes of the third party's undertaking or business." And at [143]: "In TNT Australia Pty Ltd v Christie … in relation to the plaintiff, whose labour was provided to TNT by his employer, Mason P stated at [41]: TNT exercised day-to-day control over the plaintiff's work activities, treating him to all intents the same as its employees as regards work on the factory floor … It can be seen that the plaintiff and TNT placed themselves in a relationship, day in and day out, indistinguishable from that of employee and employer … [H]ere the plaintiff had for months been under the daily control of TNT and its managerial staff at the brewery. He was a relatively unskilled labourer. He reported daily to the brewery and everything that he did there was done under the full control of TNT."
It can be seen, in the totality of the relationship between Rail Corp and Mr Donald, that each of the three common factors relevant to the existence of a duty of care as described by Basten JA at Bostik [139] is present. Rail Corp exercised control over Mr Donald in the performance of his work; it supplied the plant and the premises which at all times remained under Rail Corp's control; and the activities of the contract labour, like Mr Donald, were for the purpose of Rail Corp's undertaking.
There can be no doubt that Rail Corp owed Mr Donald a duty analogous to that owed by an employer to an employee.
The High Court of Australia described the content of the employer's duty of care in Czatyrko v Edith Cowen University [2005] HCA 14 at [12] - [13] in the following terms: "The appellant relied in this court on these basic general principles. An employer owes a non-delegable duty of care to its employees to take reasonable care to avoid exposing them to unnecessary risks of injury. If there is a real risk of an injury to an employee in the performance of a task in a workplace, the employer must take reasonable care to avoid the risk by devising a method of operation for the performance of the task that eliminates the risk, or by the provision of adequate safeguards. The employer must take into account the possibility of thoughtlessness, or inadvertence, or carelessness, particularly in a case of repetitive work. The appellant's reliance on these principles is well founded." [Footnotes omitted]
This statement of principle applies to both Rail Corp and Staff Innovations.
However, questions of breach differ. The question of whether Rail Corp has breached the duty of care it owed to Mr Donald depends upon the application of the provisions of Part 1A of Civil Liability Act 2002 (NSW). Questions of breach on the part of Staff Innovations are to be determined by an assessment made in the manner described by Mason J in Wyong Council v Shirt (1980) 146 CLR 40 at [47] - [48]; RTA v Dederer (2007) 234 CLR 330; [2007] HCA 42 at [8], [65] - [68] (see s 3B(1)(f) Civil Liability Act).

Was Rail Corp negligent in the circumstances of Mr Donald's injury

The starting point for this question is the correct identification of the risk of personal injury against which Mr Donald says Rail Corp should have taken precaution. The requirement to identify the risk arises from the judgment of Gummow J in Dederer at [59] - [60]. The language of the chapeau in s 5B Civil Liability Act requires the same approach.
In Vincent v Woolworths Limited [2015] NSWSC 435; affirmed in [2016] NSWCA 40, I said (at [24] - [28]): "Ms Vincent's case in negligence is that Woolworths failed to take precautions against the risk of her suffering personal injury in the course of her work. The starting point for deciding liability is the correct identification of that risk of personal injury for the purpose of the assessment of negligence. This involves identifying 'the true source of potential injury': Dederer at 351 [60]. Correct identification of the risk is necessary for the assessment of whether a reasonable person in the position of the defendant would have taken the precautions against the risk suggested by the plaintiff. It is axiomatic that the question of whether the defendant exercised reasonable care is to be prospectively [assessed] not retrospectively… As Hayne J explained in Neindorf v Junkovic [2005] HCA 75; 80 ALJR 341 at [96], this requires the court to assess breach 'without knowing what in fact happened' to the plaintiff. In Vairy [v Wyong Shire Council (2005) 223 CLR 422; [2005] HCA 62)] at [126] his Honour said: Although that judgment must be made after the event it must seek to identify what the response would have been by a person looking forward at the prospect of the risk of injury. It is difficult, however, to correctly identify the risk of injury without knowing something of what in fact happened. Gummow J spoke of the need to "accurately identify the actual risk of injury" faced by a plaintiff: Dederer at [59]. As I have said, correct identification of the risk seeks to elucidate "the true source of potential injury". In my judgment, these objects cannot be achieved without knowing what happened to the plaintiff. Indeed, every court always knows from the time the pleading is filed what the plaintiff said happened and what specific act or omission (failure to take precautions) she or he relies upon as constituting negligence. It should be recognised that there is an implicit degree of artificiality in assessing breach, after the event, prospectively. But the air of artificiality becomes overwhelming if one eschews all hindsight when correctly, or accurately, identifying the risk of injury at the outset. In putting it this way I am not attempting to defy authority binding on me rather, I am attempting to apply it in the ordinary, everyday business of the trial court. It seems to me, reading Gummow J's judgment in Dederer, especially from p 351 to 355, as a whole, the question of the proper identification of the risk is a precursor to the assessment of breach. That is to say it is a question logically anterior to, and separate from, the assessment of breach. At that preliminary point it is permissible, indeed necessary, to know what happened and what act or omission the plaintiff says constitutes negligence. These matters involve hindsight. When these things are known, one then embarks upon (returns to, as Gummow J put it: Dederer at [65]) 'to the inquiry into the assessment of breach'. From this point on, all hindsight reasoning is impermissible because hindsight diverts attention from what reasonable care required in foresight, to whether in hindsight the defendant could have prevented the accident which befell the plaintiff. Bearing these things in mind and before turning to the breach inquiry required by paragraphs (a) to (c) of s 5B(1) CLA, I identify the relevant risk of harm as the risk of merchandisers suffering personal injury by being struck by moving trolleys pushed by customers. Ms Vincent says that the relevant precaution which Woolworths failed to take is the provision of a plastic barricade of the type depicted in the photograph annexed to the report of Mr Colin Simpson dated 12th May 2012 (Exhibit M); or the provision of the substantial step ladder depicted in some of the photographs in Exhibit 4; or providing a helper to keep customers clear from the merchandiser while the merchandiser was absorbed in her or his duties." [Citations omitted]
Applying these principles, I identify the relevant risk of harm as the risk of Mr Donald suffering personal injury through the exertion of effort and strain in the performance of repetitive heavy labouring work. As his case was refined by the trial process, the precautions for which he contended were, as stated earlier, the institution of a system of task rotation. As a subsidiary argument, he also argued that Rail Corp supplied the picks for the jackhammers which were overly shortened by being resharpened for further use after they grew blunt in the task. He said this required him to bend or stoop forward using the jackhammer, increasing the risk of injury.
It is necessary to say a little more about the precise nature of the task. I am satisfied that up until 13 May 2008, Mr Donald was generally teamed with a co-worker who did not perform jackhammering work, meaning that he was required to perform all of the work of that nature allocated to his team of two. That man was a Mr Gonzalez. Mr Gonzalez was a direct employee of Rail Corp. He was older than Mr Donald, probably in his fifties and was not required by Rail Corp to perform any jackhammering. It should also be noted that Mr Gonzalez had other skills. It was generally him who cut the middle section from the sleepers for all teams and he had the responsibility of placing the form work for pouring the concrete to secure the new polymer sleepers. I infer that this had the consequence that Mr Donald may have been called upon to perform more than his share of the work clearing away the rubble created by the jackhammering.
I said generally he was required to do all of the jackhammering because I accept that when Mr Donald first started at Rail Corp in August 2007, he was trained in the work by an experienced fettler, Mr Jordan Iordanidis. Mr Iordanidis described this as one-on-one, on-the-job training. Mr Iordanidis' best recollection was that this process took about two weeks. At the end of it he considered that Mr Donald was properly trained and could jackhammer the required "four sleepers a possession" (Exhibit 1D9 [32]). Mr Iordanidis said that it can take between 15 to 25 minutes to jackhammer a sleeper out.
Mr Thompson said that the task was supposed to be shared between the two men. He thought jackhammering of the sleeper might take 10 minutes. One would have to take a break whilst the cleaner removed the rubble or pieces of sleeper that had been freed. The nature of the task was such that "you cannot continuously jackhammer when doing this work" (Exhibit 1D11 [27]). Generally, because of the limited time the teams had possession of the track, the actual work is performed between 12:45am and 3:00am with additional time cleaning up and then setting up for the next shift. Mr Thompson said that the jackhammering work was performed two nights a week. Other nights the work involved installing the polymer sleepers and concreting them. On the jackhammering nights the work was done intermittently (Exhibit 1D11 [52] - [53]). He did say the frequency of the breaks was a matter for the operator.
It is important to emphasise that it is not the plaintiff's case that it was unreasonable per se to require a labourer of apparently ordinary fitness and soundness to perform jackhammering work. The complaint is about the requirement that Mr Donald perform it apparently continuously.
The expert evidence from ergonomists was unanimous. The safe performance of the work required "job rotation and task breaks interspersed inside short spells of work (work spells on the jackhammer are limited to a maximum of 15 - 20 minutes)" (Joint report Dr Neil Adams and Mr Mark Dohrmann 2 April 2013, Exhibit F). Dr Neil Adams and Mr Ken Horrigan did not address this issue in their joint report of 30 October 2015 (Exhibit H). They did, however, agree that "loads exceeding the 16 to 20 kilogram range were considered to represent higher risks of injury which required some form of risk minimisation measures to reduce the risks to what was considered to be an acceptable level of risk for all workers". Both agree the use of the jackhammer "may entail postures and weight-supporting movements which carry an increased risk of injury". In his report of 23 August 2013 (Exhibit 1D13(a), p 33), Mr Horrigan said: "There is no doubt that regular breaks from jackhammering are needed to reduce the risk of fatigue and/or the effects of vibration. Workers were told to take breaks every 20 minutes. The easiest way to achieve this was for the team members to swap tasks every 20 minutes. There were natural process breaks where, for safety purposes, jackhammering ceases while the clean up takes place. These would occur every 10 to 20 minutes. A changeover could occur at the end of one of these natural breaks. It is also possible for Mr Donald to initiate his own breaks every 20 minutes if a natural break in the work process or a form of break (such as a 'smoko') had not occurred. There is no indication that Mr Donald was not able to take breaks from the jackhammering after 20 minutes."
Mr Horrigan was the only one of the ergonomists to give oral evidence. He explained the need for a job rotation of 15 to 20 minutes in the following terms (at 615.20 - .35T): "Q. You would regard, would you not, a proper measure of rotation as being something in the order of 15 to 20 minutes when using a jackhammer, wouldn't you? A. What would you require to ameliorate the effects of a jackhammer would be to have regular breaks. Now, regular breaks can be created by rotation, which is ‑ which is ‑ which happens, or they can result from natural breaks that occur in the course of the activity of the task being undertaken. Now, the important thing is not the rotation. The important thing is the breaks. Q. Well, is it not important that different muscles be used in place of those that were being used before being relieved from the first task? A. Not necessarily. It's the fact ‑ what you've got to have is that the muscles get a chance to recover and there is a break. The important thing is the break. You could argue if someone was working and then stopped and undertook another task, then the different muscles groups were used. If the person actually just stood stationary or walked around, just to shake their arms or do anything else, yes, there is different muscles being used. So it's the break in the work tasks that is the important. It doesn't really matter how they are achieved, as long as they are achieved. … Q. Well, ergonomically, it's a cumulative form of overloading of the muscle, isn't it? A. No. That's not what my understanding of cumulative would be. Q. What's your understanding of cumulative in this context? A. Cumulative is an accumulation of loads on the body, not a particular ‑ one instance. Q. So you mean one after another? A. Well, they occur from time to time, yes. Q. But also this is why you have breaks and rotation, isn't it? That you don't want to continuously apply the forces onto the body? A. The main reason for breaks and for whatever reason you are to get them is give you a chance for a variation, whether it's postural variation or whether it's ‑ whether it's to reduce the amount fatigue, a rest break. So there's a whole raft of reasons why you would want to have breaks. But certainly if you're doing a physical work load and you had a break and the physical activities were more stressful during the break, then it would be better on the body not to have more ongoing stresses. That doesn't necessarily mean that there would be ‑ yes, well, there would be an accumulation of stresses, because every ‑ every load that's on the body is felt by the body, but it doesn't necessarily accumulate in an injurious fashion. It could be just, of course, tiredness."
Mr Jim (not to be confused with Jordan) Iordanidis also gave evidence. His statement is Exhibit 1D17. In May 2008 he held the position of team leader. He was not Mr Donald's direct supervisor; he said Mr Steve Thompson was [10]. He said that "the men were briefed on the need to rotate and vary their tasks. We don't force men to jackhammer so if [Mr Donald] was paired with a man who did not jackhammer then Alan should have waited 20 minutes then started jackhammering again".
He was cross-examined about this issue and said, "as far as rotation goes, there was an option for the guys to rotate whenever they wanted". When asked what he meant, he said (669.20 - .35T): "A. Well, it was horses for courses. Some guys jackhammered for 10 minutes and had long rest and some guys rotated whenever they wanted. Everyone was obligated to stop whether they wanted to, jackhammer ‑ because a lot of the blokes had a cigarette, go for a drink of water. There was no time limit or clock on or clock off. It was ‑ the job they knew entailed the whole night and they went ahead and done it, whatever. If they did it in one hour or two hours, it was up to them. Q. Did you not have in place a system whereby jackhammer operators would not use a jackhammer for more than 20 minutes before doing something else? A. That was in the SWMS. That was ‑ if they wanted today, they could have a 20‑minute break. That was an option to them. It wasn't ‑ like I said to you before, it's ‑ everyone jackhammered at their own convenience. It was ‑ it's a bit hard to put a time limit ‑ because we had some guys that were 60 kilos, some guys were 90 kilos. Some guys would stop earlier, some guys ‑ and they rotate whenever they want. We didn't make it law."
The following further exchange occurred on this topic (671.6 - .30T): "Q. I think you said the SWMS say something to the effect that you shouldn't jackhammer for more than 20 minutes; is that right? A. The SWMS that you can have 20‑minute ‑ have a break after 20 minutes if you wanted to. Q. So the SWMS say that after 20 minutes it's a good idea to have a break or something like that. A. If you wanted to. Like I said, yes. We didn't force it. It's up to the individual if he wants to. Q. Then when you have a break, what you are saying in subparagraph (k) is that you should have a break of at least 20 minutes; is that right? A. Well, it says here 20 minute ‑ but, yeah, you can ‑ to have a break. Q. Well, your words, "Should have waited 20 minutes." A. He can have as long as ‑ he can have an hour if he liked. As long as‑‑ Q. Not less than? A. I'm just saying, it depends. Every person ‑ what I'm trying to say is each individual took his own break. We didn't have a time or clock. Some guys jackhammered quicker, some guys jackhammered slower, but they sometimes had more breaks than others. We weren't there to police ‑ we were there just to make sure they're comfortable in what they were doing and they did it to the best of their ability, that's all."
It is clear from this evidence that Rail Corp, in fact, had no formalised system for rotating tasks. That is to say, although the need for task rotation to avoid a risk of manual handling injury from repetitive or heavy work was recognised, the workers were basically left to their own devices in this regard. As he said, "that was an option to them".
Mr Jim Iordanidis also said "everyone jackhammered at their own convenience" and by this I take it he meant that the pace of work was not forced, however it is clear from his evidence that Rail Corp did not institute and maintain a system of work that required structured task rotation.
I also accept that the length of the picks may have varied. But I would regard this as somewhat insignificant. The jackhammering work was clearly very heavy work involving, at times, a requirement for the operator to work in a position of postural disadvantage, stooped or bent forward. This was probably an unavoidable or inherent aspect of the work. And one which would have made no difference to the risk of injury had a system of task rotation been maintained.
I think it important to bear in mind, when assessing the question of whether Rail Corp breached its duty in accordance with the provisions of Part 1A Civil Liability Act, that the touchstone of the law of negligence is the concept of reasonableness. This concept pervades ss 5B and 5C Civil Liability Act. In making decisions about negligence, a Court is applying the normative standards that underpin the law of negligence. Although the "imperial march of the modern law of negligence" (see Astley v Austrust Limited [1999] HCA 6; 197 CLR 1 at [48]) may have been slowed, if not halted, by legislative "tort law reform" and the decisions of intermediate Courts of Appeal and the High Court, it can, I think, still be said in the 21st century, as it was in the 1980's. "Accident prevention is unquestionably one of the modern responsibilities of an employer … in deciding whether an employer has discharged his common law obligation to his employees the Court must take account of the power of the employer to prescribe, warn, command and enforce obedience to his commands." (McLean v Tedman [1984] HCA 60; (1984) 155 CLR 306 at 313) See also Bankstown Foundry Pty Ltd v Braistina [1986] HCA 20; (1986) 160 CLR 301 at 308 - 309.
These principles apply by analogy to a quasi-employer in the position of Rail Corp. Even so, an employer is not an insurer. The duty of care remains rooted in the law of negligence. And as I have said, is expressed as a duty to exercise reasonable care to obviate unnecessary risks of injury. The law of employer's liability may be the last outpost of negligence's old empire.
However, it cannot be unreasonable to require manual labourers to work hard and perform heavy work in the 21st century. It cannot be unreasonable to require a labourer to use a jackhammer, even for extended periods. The point is that the professional ergonomists and Rail Corp's own understanding of the requirements of a safe system recognised that the performance of hard, physical work on a continuous or repetitive basis without adequate break exposes workers to a risk of musculo-skeletal injury.
It may be that the system, in practice operating without regulated or structured breaks or rotation, in most cases had de facto task rotation or breaks: the men worked in teams of two; they generally took turns at the various tasks, including jackhammering and cleaning away the rubble; the jackhammerer had a break while the cleaner cleaned; and the cleaner had a break while the jackhammerer jackhammered. The work was not machine, or forced, paced. It strikes me as unreasonable in the conditions that generally prevailed to expect there should have been a whistle after 20 minutes requiring the men to either down their tools for 5 minutes or change roles. Such a system may be reasonable in a highly automated manufacturing practice in a factory where the work is machine paced, but it seems uncalled for in the work system pertaining in the Sydney City railway tunnels in 2008.
I appreciate that the system of job rotation or work breaks was honoured more in the breach by leaving it to the men themselves. But for the reasons I have given, it was generally not unreasonable.
Mr Donald's position was a little different from the other workers. In this regard, it is important to bear in mind that the duty of care is owed not only to the class of employees as a whole, but also to each worker individually (Paris v Stepney Borough Council [1951] AC 367). One does not have to accept Mr Donald's evidence at face value, because it is common ground, that he was paired with Mr Gonzalez, who because of his age and perhaps his other duties did not jackhammer. Moreover, because of the performance of those other duties involving his carpentry skills, I infer Mr Donald would have been, at least frequently, left to his own devices to perform all of the tasks required to remove and replace sleepers. All of this work, as I have said, was heavy. Mr Donald's evidence was that the bags of rubble could weigh as much as 30 kilograms. This does not seem an unreasonable estimate. Accepting this, he would not have received the benefit of the breaks inherent in the two man team working together and sharing the tasks. This at least would have been the case up until 13 May 2008 when he, as I have found, suffered injury. After that date he was probably paired, with Mr Price. I rejected the evidence of each of them about a second incident. But that does not mean everything they said is unreliable. Probably, from about the middle of May 2008 Mr Donald and Mr Price worked as a team in the same way as the other men. I do not accept that during the period they worked together, Mr Price did all the jackhammering and Mr Donald the cleaning.
I turn then to assess the question of breach in accordance with provision of s 5B Civil Liability Act. For the reasons I have given, I am satisfied that the risk of personal injury of a musculo-skeletal nature was reasonably foreseeable. In making this finding I am conscious that at least during 2008 there were no like injuries reported by other men performing this work. That is a significant but not decisive consideration. On the other hand, the period in question is short and there is the consideration that on the evidence the other teams shared the load.
I am satisfied notwithstanding the absence of other reports of similar injuries that the risk was not insignificant, in the sense of being very unlikely to occur. The heavy nature of the work makes the occurrence of back injury unsurprising.
In my judgment, in the circumstances a reasonable quasi-employer in Rail Corp's position would have taken the precaution of pairing Mr Donald with a permanent partner able to share all aspects of the work. By this means a reasonably adequate system of task rotation or in built rest breaks would have operated to, if not eliminate, at least substantially reduce the risk of harm. I think it should be recognised that the risk of musculo-skeletal injury in the performance of heavy manual work can probably never be entirely eliminated.
I regard this as reasonable having regard to the degree of probability that the harm would occur if care were not taken; the consideration that the injury could be significant; the only burden involved in taking the precaution is to rearrange or reorganise the existing work force, as apparently happened after 13 May 2008; and although the provision of employment is socially useful its social utility does not justify any kind of immunity from the liability that would otherwise be imposed by the law of negligence.
Although I have referred to the consideration that Mr Donald was probably paired with Mr Price after 13 May 2008 and they probably shared the tasks, in obedience to s 5C(c) Civil Liability Act, I have not taken that into account as giving rise to or affecting liability; nor do I regard it as some kind of an admission of liability.
I am not persuaded that the condition of the picks or the manner in which they were provided was such to give rise to an independent head of liability. I accept the evidence lead on behalf of Rail Corp about the system. I also accept the picks may have varied in length. But as I have said, appropriate task rotation and breaks would have equally guarded against any enhanced risk arising out of the need to adopt a disadvantageous posture because some picks are shorter than others.
I am not convinced that the risk of musculo-skeletal injury arising out of the performance of the work in the manner in which Mr Donald was required to perform is an obvious risk within the meaning of s 5S Civil Liability Act. If I am wrong about this, the consideration that the plaintiff is presumed to be aware of the risk in the circumstances goes nowhere in the absence of a plea of volenti non fit injuria. Nor have I based my decision on liability on any "duty to warn". There are real difficulties in the defendants' way in raising volens in a system of work case where the plaintiff is required to perform the work in the system and using the equipment provided by the quasi-employer.

Question of causation

Determinations about causation must be made in compliance with the principles established by ss 5D and 5E Civil Liability Act. The essential question is whether the negligence I have found caused the harm actually suffered by Mr Donald. It is necessary for him to prove that the negligence of Rail Corp was a necessary condition of the occurrence of the harm and that it is appropriate for the scope of Rail Corp's liability to extend to the harm so caused.
In truth, the second question does not arise as I am dealing with an established category of case in which the law of negligence operates. There is no question of intervening causes, or of remoteness of damage. It is appropriate that Rail Corp's liability extend to the harm actually caused by its negligence. Including Mr Donald's injuries within the scope of its liability is consistent with the normative standards that the law of negligence gives effect to.
Unlike questions of breach, all questions of causation are determined retrospectively. The law is concerned with what happened and why. Questions of factual causation are concerned with the application of the but for test; but for the negligence as found of Rail Corp, would Mr Donald have suffered his back injury?
I have found this a difficult question to answer. I accept the opinion expressed in the joint report of Dr Bodel and Dr Maxwell (Exhibit 1D14A) that "the initial diagnosis was an L5/S1 disc protrusion to the left" which occurred, not on 8 May 2008, but on the evidence before me, on 13 May 2008. I appreciate that Dr Maxwell gave cogent reasons for resiling from this agreement. His inspection of the scans persuaded him that the appearance of the bulging disc was not consistent with what he expected to see if there had been a protrusion. He described that as usually more "cauliflower like" in appearance and was of the view that there was no impingement on the exiting L5/S1 nerve root. This opinion, however, is inconsistent with opinions previously expressed by him and indeed, in my view anyway, inconsistent with the greater body of medical evidence in the case. Mr Donald complained of left leg pain to Ms Calvert when she initially assessed him for IBIS. She is not a medical practitioner, but there is no reason to doubt that she faithfully recorded the complaints of Mr Donald as he made them. Moreover, Dr Ajam suspected disc protrusion when he saw him on 18 June 2008. I accept he is a GP and not a specialist. But often in these cases the initial impressions of the GP can be important. I think they are important here.
The first neurosurgeon to examine Mr Donald, Dr Cherukuri, found clinical signs consistent with L5/S1 disc protrusion. He did not doubt the accuracy of the report of the initial CT scan. Dr Cherukuri formed a view that the objectively viewed clinical signs found by him were consistent with the worsening of Mr Donald's condition and with radiculopathy.
Dr Cherukuri thought there was also some spondylosis, a pre-existing condition. This is consistent with the agreement of Dr Bodel and Dr Maxwell that there was a pre-existing degenerative condition "which may have been partially responsible for the original disc protrusion".
As I have said more than once, in heavy work of this nature, it is not possible to eliminate the risk of musculo-skeletal injury. From this, it follows that Mr Donald may have suffered a back injury in the performance of heavy labouring work even in the absence of any negligence on the part of Rail Corp. This consideration provides important context on which causation falls to be answered. Dr Bodel's explanation (at 706.20-.35T) was in the following terms: "I would have thought that the nature of that work, which went on, as I understood the process of work, was for fairly lengthy periods of time without regular breaks, and it was over a number of weeks or maybe months that it went on before the really bad episode that prompted him to have to crawl and go and lie in the truck, that he is causing minor little trauma to the back, and then on that particular day when it became unbearable, some additional structural damage occurred. I would choose to call it as an internal disc disruption because there were no signs or symptoms as we as far as we know, of involvement of the leg at that stage, and it is a little bit disappointing that there is no actual corroborative evidence from anybody who examined him back at the time of this injury, to say that there was definitely signs or symptoms because that would just, you know, clarify the whole scenario in the sense of the of the way that I have said. But I am prepared, based on history, clinical findings and the seeing of the CT scans and the MRI scans that that's the scenario that occurred."
The history received by Dr Bodel when he first saw Mr Donald on 11 May 2009, about 12 months after the "injury", included a report of sudden deterioration, causing him to cease work and lie in the back of the truck because of the severity of his pain (Exhibit J(1)). This sounds more like the version Mr Donald gave of the second incident of 12 June 2008, which I have rejected. It is quite unlike the incident I have accepted, which was of an onset of pain on 13 May 2008, which was noticeable but through which he was able to keep working and finish the shift.
I think it worthwhile recording that, on examination, Dr Bodel found muscle spasm in the left hand side of the lumbar-sacral junction; restriction of straight leg raising on the left, with evidence of nerve root tension; sensory loss on the S1 disc protrusion on the left; weakness of plantar flexion on the left; and diminution in the left ankle jerk. His opinion then was that Mr Donald had suffered a disc injury in the episode of 13 May 2008. I do not understand there to be much difference between that expression of opinion and the evidence I have quoted above. It remains that he was working on the assumption of a more or less demonstrable physiological change.
Dr Bodel said (at 713.40-.45T): "The prime thing that is causing all this to go awry is, in fact, a genetic factor, but I still hold the view that, inappropriate work practices may well add an element of risk and the development of internal disc disruption which at a later stage may have that magic external rupture causing the sciatica and the need for the surgery which eventuated in this circumstance." [Emphasis added]
Moreover, and finally, the operating surgeon Dr Peter Bentivoglio carried out a lumbar decompression and spinal fusion. His operation note is not in evidence, however it is clear that he was operating to free up the L5/S1 nerve root and to stabilise that segment of Mr Donald's back.
The question then becomes was the disc protrusion caused by, not the work injury per se, but rather by the negligence of Rail Corp.
I appreciate that Dr Bodel's reference to adding an element of risk does not satisfy the requirement of causation in a personal injuries case. However, I understand him to be saying that, in context especially when one reads his oral evidence with his reports, the inappropriate work practices by way of cumulative traumata materially contributed to the development of discal injury.
The first report of Dr Peter Bentivoglio (Exhibit L(1)) records a history of Mr Donald having had "mechanical low back pain for two and a half years following a work injury whilst working on jackhammers". The pain had deteriorated. However, at that stage he found no evidence of neurological dysfunction. Nonetheless, he recommended L5/S1 discectomy and fusion. In his report of 8 April 2010 (Exhibit K(2)) he opined "the compression of the L5 nerve roots in the L5/S1 foramen is more severe and the inflammatory changes in the bone have deteriorated". He continued to recommend surgery which was undertaken on 20 April 2010. The surgery consisted of "an L5/S1 pedicle screw fusion, decompression of both L5 nerve roots and bilateral interbody L5/S1 fusion cages with a posterior lateral bone graft". When asked his opinion as to cause of Mr Donald's condition, he said in his report of 17 December 2014 (Exhibit L(11)), "Mr Donald injured his back whilst working as a labourer". As I have previously remarked, often the observations of the treating general practitioner will be of significance. Dr Ajam's reports (Exhibit Q) reveal that Mr Donald's back pain had become worse working with a jackhammer stooping forward for most of the day. Dr Ajam had seen him monthly since the initial visit on 18 June 2008.
In giving further evidence, Dr Bodel said that on the history consistent with the facts as I have found them to be (798.25T): There's certainly no disc protrusion at that time, there's no historical evidence of sciatica, there's no extrusion, protrusion, external rupture of disc in relation to that episode. …. It could in my view be an internal disc disruption … but it's certainly not a disc protrusion or sciatica. Absolutely not. He continued (at 800.25T): If it's an internal disc disruption then without any other major problem or something relative(ly) innocuous such as a cough or a sneeze, straining at the toilet, bending down to do up your shoe laces, any minor thing, if there has been some structural damage in the earlier thing but without an external protrusion, could occur at any time after that. I understood this to be that if he suffered an internal disc disruption it could progress to a protrusion with only minor subsequent trauma.
At 801.43T, Dr Bodel agreed that assuming Dr Cherukuri's findings are correct, there was radiculopathy present in the early part of 2009. Dr Bodel said that it fitted in with his hypothesis of an internal derangement of the disc in May or June of 2008. Dr Bodel confirmed that when he first saw Mr Donald there were "clinical signs of radiculopathy" (802.10T). He thought he needed immediate neurosurgical review. The signs of radiculopathy were "a physical finding of abnormality" (802.30T).
Dr Maxwell accepted that Dr Cherukuri found clinical sings of radiculopathy (803.15T). But he reiterated that the MRI scan taken in May 2009 suggested to him that those signs did not "in fact reflect pressure on the S1 nerve root" (803.30T). Dr Maxwell accepted that the operation described by Dr Bentivoglio is "an operation which I usually do for radicular pain, but some doctors do for back pain" (805.50 - 806.5T). Dr Bodel said when he was in active practice he would not operate "if there's no signs of radiculopathy" (806.20T). At 807.40T Dr Bodel agreed that his hypothesis moves "towards probability if there is no competing hypothesis or no competing history which is otherwise explained when this happened". The issue is, of course, not free from doubt and respected specialists have offered competing opinions. In the end, however, given the findings I have already made, I am not satisfied that there is a competing hypothesis to that proffered by Dr Bodel. I have found that Mr Donald did not injure his back in the assault of 25 August 2001. That was the only matter that really represented any competing hypothesis. I accept consistently with the opinions expressed by Drs Maxwell and Bodel that Dr Bentivoglio operated to address signs of radiculopathy, that is to say, to address a disc protrusion in the presence of degenerative changes. It seems to me that Dr Bodel's opinion better fits in, viewed retrospectively for this purpose, with the facts as I have found them to be than any competing hypothesis.
I accept that the work leading up to 13 May 2008 and the work done on that day caused, in Dr Bodel's terms, an internal disc disruption, but no frank protrusion then occurred. This explains why Mr Donald was able to work on until the work was withdrawn and notwithstanding symptoms which were of concern to Dr Ajam, he performed 20 hours' work for Multi Civil and Rail and was able to continue at the gym for a period. It should be borne in mind that at one stage a gym program was prescribed as part of his treatment. However, his condition progressed until clinical signs of radiculopathy were evident in the early part of 2009, prompting the referral to Dr Cherukuri. I find that those worsening symptoms were due to the natural progression of the condition, which became manifest on 13 May 2008. Dr Bentivoglio operated to relieve the effects of that injury.
I am satisfied on the balance of probabilities that but for the negligence of Rail Corp, Mr Donald would not have received the injury which progressed to a frank disc protrusion at L5/S1 in the early part of 2009.

The liability of Staff Innovations

It is trite that the duty of care of a direct employer is personal or non- delegable. As Mason P described this concept in Christie (at 12 [47]), liability will be imposed on a person owing a non-delegable duty of care "regardless of personal fault on their part in the circumstances giving rise to the plaintiff's injury" provided that the damage "was caused by lack of reasonable care on the part of someone … within the scope of the relevant duty of care". I have found Rail Corp liable in negligence for failing to institute and maintain a safe system of work for Mr Donald. This is an example of negligence within the scope of an employer's duty of care par excellence.
I appreciate from the discussion by Basten JA in Bostik that the resolution of the question of the employer's liability may be fact sensitive. But given the centrality of the obligation to provide a safe system of work to the employer's duty, there is no matter which suggests on the facts as I have found them to be that Rail Corp's negligence lies outside the scope of Staff Innovations duty. I find that Staff Innovations is liable to Mr Donald for the consequences of Rail Corp's negligence. This, of course, is subject to questions of apportionment, or statutory contribution.

Contributory negligence

Rail Corp has raised contributory negligence and has particularised that defence with great elaboration.
In Bankstown Foundry v Braistina, Mason, Wilson and Dawson JJ said (at 310): "A worker will be guilty of contributory negligence if he ought reasonably to have foreseen that, if he did not act as a reasonable and prudent man, he would expose himself to risk of injury. But his conduct must be judged in the context of a finding that the employer had failed to use reasonable care to provide a safe system of work, thereby exposing him to unnecessary risks. The question will be whether, in the circumstances and under the conditions in which he was required to work, the conduct of the worker amounted to mere inadvertence, inattention or misjudgment, or to negligence rendering him responsible in part for the damage." [Citations omitted]
From the facts as I have found them to be, I can identify no act or omission on the part of Mr Donald that amounts to negligence. His injury arose simply from his performance of the work allocated to him by Rail Corp according to the system they instituted for him to work in. In the particular circumstances of this case to find him guilty of contributory negligence would be to permit parties owing him non delegable duties to devolve those duties upon him. This is legally impermissible. I reject the defence of contributory negligence.

Apportionment between Rail Corp and Staff Innovations

The contractual arrangements between Rail Corp and Staff Innovations required Staff Innovations to provide additional labour to Rail Corp to work on Rail Corp's premises with equipment it provided, in a system of its devising, under its supervision. Rail Corp was overwhelmingly in control of all of the relevant activities underpinning negligence in this case.
However, as Mason P observed in Christie (at 13 [54]) "an employer [cannot] slough off [its] responsibility by sending the employee to a workplace under the day to day control of another." As his Honour also observed at 15[65] a non-delegable duty cannot be delegated by abdication. It is contrary to principle "to treat the normal incidents of the employment relationship as modified simply because … employees are sent off to work for a client": 15 [67]. The evidence of Mr Bamford is that he frequently attended the Rail Corp work site and had contact with the supervisors. As Staff Innovations obligations were owed individually to Mr Donald it was insufficient that he satisfy himself that generally the system of work was safe. I infer that it would have been in his power to inquire of the conditions under which each of Staff Innovations employees worked. Had it, by inspection or inquiry, come to his attention that Mr Donald was not working in a team like the others, he could have set that straight with Rail Corp. Given that Mr Donald worked under those conditions from some time probably in September 2007 after his training with Mr Jordan Iordanidis had finished there was ample opportunity for Mr Bamford to take steps to see that Mr Donald's conditions of work conformed with those of the other Staff Innovation employees.
However, overwhelmingly the responsibility lies with Rail Corp. Considering the extent of the departure from the standard of reasonable care, and the degree of causal potency, of the negligence of each of them, and given Rail Corp's vastly superior control, I am of the view that liability between them ought to be apportioned in the proportions: Rail Corp as to 90 per cent; and Staff Innovations as to 10 per cent.

Damages

It follows from my findings that both Rail Corp and Staff Innovations are liable for damages to the plaintiff. Rail Corp's damages are to be assessed in accordance with Part 2 Civil Liability Act. Staff Innovation's liability is to be assessed in accordance with the provisions of Division 3 of Part 5 Workers' Compensation Act regulating the somewhat truncated system of work injury damages.
Before proceeding to assess the various heads of damage there are some findings of a general nature I wish to make. Obviously the difficulties with Mr Donald's reliability as a witness impact upon the impression I made of him for the purpose of assessing the damages to which he is entitled. There are a number of particular aspects to this.
First, although he asserted traumatic brain injury from the assault of 25 August 2001, there was scant evidence of this. Every CT scan taken of his brain has failed to disclose any focal brain injury. It may well be that the difficulties he describes as brain damage may be a result of a combination of pre-existing personality factors and psychological disturbance which have been contributed to by the very serious 2001 assault. There is some suggestion in the medical evidence that a diagnosis of post-traumatic stress disorder has been made. This pre-existing condition may account for his seeming cognitive difficulties, lack of memory and belligerent presentation. These things are bound to have had affect upon his employability including in the long term.
Secondly, I am persuaded that there is a very significant degree of exaggeration or embellishment in his presentation of his symptoms and disabilities. I think this is illustrated by him continuing to indulge in the "sport" of pig hunting. He presented this in evidence as all being done by his pig dogs. They join chase with the feral pig, cornering it and securing it by its ears while they pressed against it to hold it fast until he arrived, following more sedately in a motor vehicle. On his evidence, his only part in this activity was dispatching the pig by sticking it with a knife. I find this account improbable. I am persuaded that his participation in this "sport" must necessarily be much more active than he has presented.
Thirdly, he has I think mislead doctors about the level of his pain and his necessary ingestion of prescription medication. When he saw Dr Bentivoglio on 31 March 2015, as detailed in the doctor's report of 4 May 2015, he gave him the impression that he was "overdosing himself on Panadeine Forte taking 20 tablets per day." Dr Bentivoglio remonstrated with him, telling him he should not take more than 8 per day. Dr Bentivoglio believed it is impossible to obtain a prescription from a doctor for so many tablets. There was nothing within the realms of Dr Bentivoglio's speciality to explain such severe pain. The fusion was solid and there had been no change in the underlying pathology. There was no significant neurological compression. Findings on examination were unremarkable. It transpired that the last prescription for the drug was written on 27 March 2015 and despite a degree of obfuscation about obtaining prescriptions from a doctor in Dubbo (he now lives in Nyngan) no such evidence was ever produced. The prescription written by Dr Ajam on 27 March 2015 was for a mere 30 tablets (Exhibit 1D7 and Exhibit 1D8).
It follows from these considerations that one cannot accept the plaintiff's subjective presentation for the purpose of assessing the damages. The objective fact remains, however, that he has undergone spinal surgery including a spinal fusion. He suffered a brachial plexus strain during a postural positioning for the surgery.
I am not without any guidance. It is clear from their joint report of 11 April 2013 that Dr Maxwell and Dr Bodel did not accept Mr Donald at face value. They stated (page 2) that his "incapacity was somewhat overstated" and that "he is more likely to improve rather than deteriorate in the future". I accept that the surgery would not have entirely cured his back pain and that he will have an ongoing level of pain and disability. But in assessing his damages, I propose to be guided by the objective opinion of the orthopaedic specialists, rather than by Mr Donald's self-assessment.

Non-economic loss

As I have previously stated, in their joint report Doctors Bodel and Maxwell accepted that Mr Donald suffered from an L5/S1 disc protrusion to the left and has had the benefit of a solid spinal fusion. I accept surgery should have relieved his leg symptoms but he will have ongoing mechanical back pain. It's necessary to factor in the consideration that he did have the brachial plexus strain or contusion from the surgery which caused symptoms of a troublesome nature for a period of time. Discounting his complaints from the consideration of both doctors who felt the outcome was worse than expected and that he was overstating his injuries and disabilities, I still accept that he will have ongoing pain which will restrict his ordinary activities of daily living of bending, lifting and prolonged sitting. The injury occurred when he was 32 years old. He has had ongoing trouble, I accept, for the last 8 years and he will continue to suffer pain, inconvenience and limitation into the future. There is a restriction of his ordinary activities to some degree which results in a loss of enjoyment of life and loss of amenity. Having regard to his relative youth, with his life expectancy of around 45 years, even allowing for some degree of improvement in the future on an objective basis, I assess his non-economic loss as 35 per cent of a most extreme case. This entitles him to $212,000.

Past out of pocket expenses

All parties agree that the amount paid by the workers' compensation insurer in respect of hospital, medical, rehabilitation and the like expenses were reasonably necessitated by his work injury. As at the date of the trial, his expenses totalled $106,000 (see Exhibit 2D5).

Future out of pocket expenses

I accept the opinions of Dr Bodel and Dr Maxwell that Mr Donald is likely to require conservative treatment only in the future. In my judgment, on the whole of the evidence, any prospect of future surgery is so remote as to make an allowance purely speculative. However, there is much to be said for the idea that he will require ongoing review by a general practitioner and occasionally by a specialist neurosurgeon. Some prescription pain medication during flair-ups of pain would also be reasonable. Given his exaggerated pain behaviour, it may be that he would benefit frorm some multi-disciplinary pain management. Rail Corp concede some minor home modifications and equipment in accordance with the opinion of Suzanne Dinley, occupational therapist, expressed in her report of 18 October 2015 (Exhibit 1D14(c)). Given the many decades ahead, I think the best approach is to adopt a global figure and I will allow the sum of $30,000.

Griffith v Kerkemeyer damages

A claim for voluntary care and assistance was withdrawn at the trial. I make no allowance under this head. Rail Corp acknowledge that if Mr Donald is entitled to damages, some allowance should be made for paid handyman assistance. Ms Dinley was prepared to allow 2 hours of paid assistance for the heavier aspects of domestic work. The plaintiff's counsel advanced an argument of 4 hours per week. By different means, counsel on both sides of the record suggest a figure in the order of $50,000, which I will allow.

Past economic loss

Despite his shortcomings as a witness, and his difficulties because of his lack of schooling, I did form the impression that Mr Donald had a strong work ethic. He struck me as a person who would be prepared to work through pain and difficulty. It's highly likely that he would have soldiered on longer with Staff Innovations had he not been put off by Mr Bamford on 17 June 2008. On the findings I have made, ultimately he would have been forced out of that work by reason of the progression of the discal injury he suffered on 13 May 2008.
Adding in the various allowances for overtime and under various industrial awards, he was earning very good money working for Staff Innovations at Rail Corp. On a good week, from the wage records attached to Exhibit A1 he would earn as much as $1,300 per week net. In fairly standard weeks he would earn about $880 per week net. This averages out more or less at about $1,000 per week net. This is roughly equivalent to net average weekly earnings for workers in New South Wales at the time. That figure has risen to about $1,376, allowing 20 per cent for income tax on the figures shown in the Furzer Crestani handbook.
I accept the argument on behalf of Staff Innovations that because he had been laid off, because of budgetary constraints, and the intervention of World Youth Day, he would have been off work anyway until about 29 October 2008. I propose to make no allowance during that period.
It appears to me, however, that from about then until 6 to 12 months after Dr Bentivoglio's surgery in 2010 he would have been totally unfit for work. Since then I accept the argument that he had gradually, by objective standards, become fit for full time work within the restrictions placed upon him by Drs Bodel and Maxwell. Moreover, it is important to bear in mind that he has taken himself from the Wollongong area to Nyngan. Doubtless jobs are harder to come by there, especially for a person with an incapacity.
I think the appropriate approach for the past given these various factors, which to some extent are imponderable, is to calculate total loss of earnings on the basis of total incapacity consistent with my findings and reduce that amount by about one-third to take account of the other matters I have referred to.
I will allow an average figure of $1,188 net per week over the whole period from 29 October 2008 to 23 December 2016. This is a period of approximately 432 weeks producing a total figure of $513,216. Reduced in broad terms by about one-third, I allow figure of $350,000 for the past.

Future economic loss

As I have said, I accept that by now Mr Donald is fit for suitable restricted duties on a full time basis. I should say that because of his pre-existing problems of a non-orthopaedic type, I accept that he was restricted to manual or semi-skilled work at best and that this work will be harder to come by with a significant back injury and a spinal fusion. I accept the force of Staff Innovations arguments that the report of earning capacity assessment by Dr Mitchell and Ms Dillen of 2 May 2014 provides something of a guide to Mr Donald's current capacity. However, I think it overly optimistic to expect that he could work full time as an excavator operator given his inability to sit for prolonged periods in excess of 45 minutes to 1 hour. Store work as a picker or packer may be within his capacity provided there are restrictions in relation to lifting. I am of the view he could do better than working as a process worker. Adopting a net figure derived from average weekly earnings of about $1,376 per week and assessing his residual earning capacity as $776 per week a differential of $600 is produced. I appreciate that there is artificiality in this approach. The main integers are that he was capable of earning good money in unskilled or semi-skilled work because of his strong work ethic. And many of those avenues are now closed to him because he is a manual worker with a bad back who has undergone spinal surgery. A loss of about $600 in my judgment is about the right weight. Adopting what I would regard as a robust approach in relation to Mr Donald's earning capacity neutralises for the future the effect of the move to Nyngan. However, I accept Staff Innovations argument that it would be appropriate to adopt the figure of 20 per cent for the vicissitudes to take account of the additional difficulties Mr Donald may experience in finding work because of his pre-existing personality problems, as I would put it. The appropriate multiplier is 768.7 for a remaining working life of 26 years, producing a total of $461,220 of which 20 per cent is $92,244. I will allow $368,976 for this head of damage.

Fox v Wood

The amount deducted from workers' compensation payments for income tax as at the date of the trial was a little over $55,000. I allow the figure of $55,403.

Summary of damages payable by Rail Corp before s 151Z(2) reduction

Work Injury damages payable by Staff Innovations

There is no issue in the case that Mr Donald has suffered a degree of permanent impairment as a result of his injury of at least 15 per cent. On the evidence it is far greater. He thus has an entitlement to work injury damages under Division 3 of Part 5 of the 1987 Act. Those damages are calculated by reference to past and future economic loss only and the basis of assessment is the same as the basis for assessment under Part 2 Civil Liability Act. Drawing on my previous findings, I assess the work injury damages as follows:

Calculation after s 151Z(2) reduction

But for the provisions of Division 3 of Part 5, Rail Corp would recover 10 per cent of the Civil Liability Act damages from Staff Innovations. By the modifications made under the Workers' Compensation Act it may only recover 10 per cent of the work injury damages. It is entitled to the benefit of a reduction to the damages payable to Mr Donald in respect of the difference between the two. My calculations are as follows:

Staff Innovations s 151Z(1d) recovery

Staff Innovations seeks recovery of all amounts paid to, for or on behalf of Mr Donald from Rail Corp pursuant to the provisions of s151Z(1)(d) of the Workers Compensation Act. As Mr Donald has taken proceedings against Staff Innovations, but it is unlikely that he will accept satisfaction of a judgment against it given his better entitlement against Rail Corp, the amount of the indemnity is affected by the provisions of s 151Z(2)(e)(i). That is to say, the amount of the indemnity Staff Innovations can recover is for the amount of the excess of workers' compensation payments over the amount of the statutory contribution that could be recovered from Staff Innovations as a joint tortfeasor or otherwise. The amount of the statutory contribution "that could be recovered" is a reference to the contribution recoverable under s 151Z(2)(d), that is to say, a contribution calculated "as if the whole of the damages were assessed in accordance with the provisions of" Divisions 3 of Part 5. As Staff Innovations will have continued to pay compensation to Mr Donald since judgment was reserved, the figures I was provided with at the hearing will have increased. Moreover, the effect of this judgment is that, one way or another, Staff Innovations will recover the compensation either under s 151Z(1)(b) or s 151Z(1)(d). Either way that amount will be subject to the statutory contribution payable to Rail Corp of $77,438; either directly at the suit of Rail Corp or by the operation of s 151Z(1)(d) as modified by s 151Z(2)(e)(i).
In these circumstances, I think it sufficient to deal with this claim by making a declaration that Staff Innovations is entitled to statutory indemnity subject to s 151Z(2)(e)(i).

Interest

Neither Mr Donald nor Staff Innovations articulated or calculated a claim for interest. As the figures may have changed, I will grant all parties liberty to apply in respect of my calculations. For this purpose I will delay entry of judgment.

Conclusion

I will pronounce orders today to give effect to my reasons. However, as there has been a delay in giving judgment, I will delay entry of the orders to enable the parties to check my calculations and to make any application that may be necessary due to any change in the amount of workers' compensation paid so far as it affects the allowance I have made, or otherwise, including in relation to interest. Moreover, this will enable me to comply with the provisions of s 23(2) Civil Liability Act and notify the parties of the terms of the award I propose to make to give them a reasonable opportunity to negotiate a structured settlement.
My orders are: 1. Judgment for the plaintiff against the first defendant in the sum of $1,132,579; 2. Subject to s 151A Workers Compensation Act 1987 (NSW) judgment for the plaintiff against the second defendant in the sum of $774,379; 3. Judgment for the first defendant against the second defendant on the first defendant's cross-claim in the sum of $77,438. 4. Judgment for the second defendant against the first defendant on the second defendants claim for statutory contribution under s 5 Law Reform Miscellaneous Provisions Act 1946 (NSW) in the sum of $696,941. 5. Declare that the subject to the provisions of s 151Z(2)(e)(i) and order 4 hereof, the second defendant is entitled to statutory indemnity from the first defendant for all amounts paid to, for or on behalf of the plaintiff under the Workers' Compensation Act, s 151Z(1)(d) of that Act. 6. The first defendant to pay the plaintiff's costs of the proceedings; 7. The second defendant to pay the plaintiff's costs of the proceedings in accordance with the provisions of the Work Injury Management and Workers' Compensation Act 1998 (NSW) and the regulations made thereunder; 8. The first defendant and second defendant to bear their own costs of the cross-claims; 9. Defer entry of judgment until 13 January 2017; 10. Grant the parties liberty to apply in respect of damages, calculations and costs which liberty is to be exercised by notice by email to my associate by 1 pm on 10 January 2017. 11. Fix the matter for directions before me at 10 am on Friday 13 January 2017; 12. If agreement is reached on outstanding matters, the parties are to bring in short minutes of order giving effect to their agreement.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 January 2017

Law Reform Miscellaneous Provisions Act 1946(NSW)

Work Injury Management and Workers' Compensation Act 1998(NSW)

Workers' Compensation Act 1987(NSW)

At a glance

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Judgment (38 paragraphs)

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