Ali Khan Babayi v Eden Park Fruits Pty Ltd - [2023] NSWSC 473 - NSWSC 2022 case summary — Zoe

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Ali Khan Babayi v Eden Park Fruits Pty Ltd

[2023] NSWSC 473

Supreme Court of NSW|2022-09-09

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2022-09-09

Catchwords

Adeels Palace Pty Ltd v Bou Najem (2009) 239 CLR 420
258 CLR 281 Dell v Dalton (1991) 14 MVR 158
(1991) 23 NSWLR 528 Derrick v Cheung (2001) 181 ALR 301
[2004] HCA 42 Safeways Stores Pty Ltd v Zaluzna [1987] HCA 7

Source

Original judgment source is linked above.

Catchwords

Adeels Palace Pty Ltd v Bou Najem (2009) 239 CLR 420258 CLR 281 Dell v Dalton (1991) 14 MVR 158(1991) 23 NSWLR 528 Derrick v Cheung (2001) 181 ALR 301[2004] HCA 42 Safeways Stores Pty Ltd v Zaluzna [1987] HCA 7

Judgment (125 paragraphs)

[1]

Star Medical Centre Pty Ltd [2018] NSWCA 308 Kerry v Carter [1969] WLR 1372 King v Western Sydney Local Health Network [2013] NSWCA 162 Kolodziejczyk v Grandview Pty Ltd [2002] NSWCA 267 Leighton Contractors Pty Limited v Fox (2009) 240 CLR 1 Lepore v State of New South Wales (2001) 52 NSWLR 420 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 Matthews v Dean (1990) 11 MVR 455; [1990] Aust Torts Reports 81-037 McLean v Tedman (1984) 155 CLR 306 Mead v Kerney [2012] NSWCA 215 Medlin v. State Government Insurance Commission (1995) 182 CLR 1 State of NSW v Moss (2000) 54 NSWLR 536 Mobbs v Kain (2009) 54 MVR 179; [2009] NSWCA 301 Mulligan v Coffs Harbour City Council [2004] NSWCA 247 Neindorf v Junkovic (2005) 80 ALJR 341 Origin Energy LPG Pty Ltd v Bestcare Foods Ltd [2012] NSWCA 407 Paris v Stepney Borough Council [1951] AC 367 Patrick Stevedores Operations (No 2) Pty Ltd v Hennessy [2015] NSWCA 253 Paul v Cooke (2013) 85 NSWLR 167; [2013] NSWCA 311 Perisher Blue Pty Ltd v Nair-Smith [2015] NSWCA 90 Podrebersek v Australian Iron & Steel Pty Limited (1985) 59 ALJR 492 Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99 Rallis v Pang [2003] NSWCA 202 Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98 Roads and Traffic Authority v Dederer (2007) 234 CLR 330; [2004] HCA 42 Safeways Stores Pty Ltd v Zaluzna [1987] HCA 7; (1987) 162 CLR 479 Shoalhaven City Council v Pender [2013] NSWCA 210 Smith v The Broken Hill Pty Co Ltd (1957) 97 CLR 337 South West Helicopters Pty Ltd v Stephenson (2017) 98 NSWLR 1 Southgate v Waterford [1990] Aust Torts Reports 81-065; (1990) 21 NSWLR 427 Sullivan v Macquarie Pathology Services Pty Limited (1995) ATPR 46-143 Sutherland Shire Council v Major [2015] NSWCA 243 T and X Company Pty Ltd v Chivas [2014] NSWCA 235 Sutherland Shire Council v Major [2015] NSWCA 243 Thornton v Sweeney [2011] NSWCA 244 TNT v Christie [2003] NSWCA 47 Vairy v Wyong Shire Council (2005) 223 CLR 422 Van Der Sluice v Display Craft Pty Ltd [2002] NSWCA 204 Vincent v Woolworths Limited [2015] NSWSC 435 Wallace v Kam (2013) 297 ALR 383; [2013] HCA 19 Wheeler v London Rochester Trading Co Ltd [1957] Lloyd's Rep 69 Woods v Durable Suites [1953] 1 WLR 587 White v Redding [2019] NSWCA 152 Woolworths Ltd v Strong [2010] NSWCA 282 Wynbergen v Hoyts Corporation Limited (1997) 72 ALJR 65 Wyong Shire Council v Shirt (1980) 146 CLR 40; [1980] HCA 12 Zreika v State of New South Wales [2009] NSWCA 99 Texts Cited: Review of the Law of Negligence (Final Report, September 2002) Category: Principal judgment Parties: Ali Khan Babayi (First Plaintiff) Eden Park Fruits Pty Limited (First Defendant) Workers Compensation Nominal Insurer (Second Defendant) Representation: Counsel:

[9]

Extension of time against the second defendant

I should first deal with the plaintiff's application for an extension of time to commence proceedings against the second defendant.
The plaintiff relied on the Workers Compensation Act 1987 (NSW) s 151D. The second defendant does not oppose this application. Section 151D reads: "151D Time limit for commencement of court proceedings against the employer for damages (2) A person to whom compensation is payable under this Act is not entitled to commence court proceedings for damages in respect of the injury concerned against the employer liable to pay that compensation more than 3 years after the date on which the injury was received, except with the leave of the court in which the proceedings are to be taken."
The plaintiff relies upon the affidavit of his solicitor, David Hanson of Carters Law Firm ('Carters') dated 29 August 2022 to explain the delay. The solicitor's explanation is largely procedural so it falls within his knowledge.
On 14 February 2018, Verifact, an investigation company, requested particulars on behalf of QBE, the workers compensation insurer. By letter dated 21 February 2018, the law firm for the plaintiff, Carters provided answers in response to that request.
By letter dated 2 March 2018, Verifact requested further particulars. By letter dated 18 December 2018, Carters Law Firm provided further answers.
During 2018, the plaintiff was still undergoing treatment and rehabilitation about his injuries. That treatment and rehabilitation included participating in a pain management program at Royal North Shore Hospital.
On 17 January 2019, the plaintiff commenced these proceedings in this Court against the first defendant only.
As at January 2019, the solicitor, Mr Hanson, had not formed the view that the plaintiff's matter was ready to proceed with a claim for lump sum compensation under s 66 of the Workers Compensation Act 1987 (NSW). In particular, given the plaintiff's treatment and rehabilitation, Mr Hanson had not formed a view as to whether the plaintiff's injuries had stabilised.
On or about 21 January 2020, the plaintiff and GIO entered into a Complying Agreement confirming the parties' agreement that the plaintiff be paid lump sum compensation under s 66 of the Workers Compensation Act 1987 (NSW) compensation for a degree of 49% permanent impairment as assessed by Dr Machart.
In letters dated 14 April 2020, Carters made a Work Injury Damages claim on behalf of the plaintiff.
By letter dated 8 September 2020, GIO issued a s 78 Notice under the Workplace Injury Management and Workers Compensation Act 1998 about the Work Injury Damages claim.
By letters dated 29 September 2020, Carters Law Firm served a Pre-Filing Statement on GIO, the employer and Gillis Delaney Lawyers. By letter dated 27 October 2020, Gillis Delaney Lawyers served a pre-filing defence.
On or about 8 December 2020, Carters filed with the Workers Compensation Commission an Application for Mediation of a Work Injury Damages Claim. On 16 December 2020, Gillis Delaney Lawyers served a response to an Application for Mediation. On 16 December 2020, the Workers Compensation Commission emailed to the parties a Certificate of Mediation Outcome.
On 19 May 2021, Carters Law Firm filed an Amended Statement of Claim ('ASC') joining the Workers Compensation Nominal Insurer as the second defendant in these proceedings. The Workers Compensation Nominal Insurer was named because the plaintiff's employer company was deregistered.
On 24 June 2021, Registrar Jones granted the plaintiff leave, nunc pro tunc, to bring these proceedings against the Workers Compensation Nominal Insurer under section 5(1) of the Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW).

[11]

The pleading framework

On 19 May 2021, by way of an amended statement of claim, the plaintiff relevantly pleads: "… [3] On 20 January 2016, the First Defendant was the occupier of agricultural property located at [the property]. [4] The Property contained an apple orchard. [5] On 20 January 2016, the Plaintiff, in the course of his employment by Second Defendant as a fruit and nut picker, was within the Property. [6] On 20 January 2016, the Plaintiff, while in the course of his employment with the Second Defendant, was pruning an apple tree within the Property using a bow ladder and a lopper tool. [7] On 20 January 2016, at about 7.15 am, the Plaintiff was standing on the top and second from the top rung of the bow ladder, using the lopper tool to reach for and prune high branches of an apple tree, at which time he fell from the ladder, and a distance of approximately 2.5 metres, to the ground, causing harm to the Plaintiff. … First defendant - Duty of care [8] At all material times, the First Defendant, as occupier of the Property, owed the Plaintiff a duty to exercise reasonable care to provide a premises which was free of reasonably foreseeable and preventable risks of harm to the Plaintiff. [9] At all material times, and while the Plaintiff was within the Property, there was a risk of workers and contractors suffering personal injury by falling from heights whilst using ladders to prune fruit trees. [10] The risk of serious harm by impacting with the ground after falling from height whilst pruning apple trees was foreseeable within the meaning of section 5B(1)(a) of the Civil Liability Act 2002 (NSW) ("the CLA"). [11] The risk of harm was not insignificant within the meaning of section 5B(1)(b) of the CLA. [12] As occupier of the Property, and in response to the risk of harm, a reasonable person in the First Defendant's position would have taken reasonable precautions against the risk of harm. First defendant - Breach of duty [13] In breach of its duty of care to the Plaintiff, the First Defendant failed to take precautions against the risk of harm as would a reasonable person in the First Defendant's position. First defendant - Causation [14] But for the First Defendant's breach of duty of care: (i) the Plaintiff's fall from height, from the ladder, would not have occurred; and, (ii) the Plaintiff would not have suffered injury. [15] By reason of the matters pleaded above: (i) the First Defendant's breach of duty of care was a necessary cause of the harm to the Plaintiff within the meaning of section 5D(1)(a) of the CLA; and, (ii) for the purposes of section 5D(1)(b) of the CLA, it is appropriate for the scope of the First Defendant's liability to extend to the harm so caused. [16] As a consequence of the First Defendant's breach of duty of care, the Plaintiff suffered, and continues to suffer, loss, damage, injury and disability. Pak Farm - Duty of Care [17] At all material times. Pak Farm, as the Plaintiff's employer, owed the Plaintiff a nondelegable duty to take reasonable care to protect him against any foreseeable injury that may arise in the course of his employment. [18] At all material times. there was a risk that the Pak Farm's employees (including the Plaintiff) would suffer serious harm by impacting with the ground after a fall from height. whilst using ladders to prune fruit trees. [19] The risk of serious harm by impacting with the ground after falling from height whilst pruning fruit trees was foreseeable within the meaning of section 5B(1)(a) of the Civil Liability Act 2002 (NSW) ("the CLA"). [20] The risk of harm was not insignificant within the meaning of section 5B(1)(b) of the CLA. [21] As the Plaintiff's employer. And in response to the risk of harm, a reasonable person in Pak Farm's position would have taken reasonable precautions against the risk of harm. Pak Farm - Breach of Duty [22] In breach of its duty of care owed to the Plaintiff. Pak Farm failed to take precautions against the risk of harm as would a reasonable person in Pak Farm's position. Particulars of Negligence (a) Failure to provide a height adjustable elevated working platform for use while pruning trees within the Property. (b) Failure to provide a ladder of suitable height for pruning trees within the Property. (c) Failure to provide a ladder with steps or rungs of suitable width for pruning fruit trees within the Property. (d) Failure to provide a ladder with non-slip steps or rungs, (e) Failure to provide any induction, training or instruction on the safe use of bow ladders within the Property. (f) Failure to provide the Plaintiff any induction, training or instruction on safe working from heights within the Property. (g) Failure to provide a safe system of work for persons working at height in and about fruit trees. (h) Failure to provide the Plaintiff with any personal fall protection device for use when pruning fruit trees. (i) Failure to provide suitable pruning tools so as to prevent overreaching from ladders, (i) Failure to provide suitable pruning tools so as to prevent the use of the top two rungs of ladders within the Property. (k) Failure to properly monitor, inspect and supervise the Plaintiff in the performance of his work. (l) Failure to comply with duties, obligations and recommendations under the Work Health and Safety Act 2011 (NSW): Work Health and Safety Regulations 2011 (NSW): Code of Practice - Managing the Risk of Falls at Workplaces 2011. (m) Failure to implement and maintain a system of hazard identification. assessment and control of risks of falls from height within the Property. (n) Failure to develop, implement and maintain a safe work procedure for the task of pruning fruit trees from height. Pak Farm - Causation [23] But for the Pak Farm's breach of duty of care: (i) The Plaintiff's fall from height, from the ladder, would not have occurred: and, (ii) The Plaintiff would not have suffered injury. [24] By reason of the matters pleaded above: (i) Pak Farm's breach of duty of care was a necessary cause of the harm to the Plaintiff within the meaning of section 50(1)(a) of the CLA: and, (ii) for the purposes of section 5D(1)(b) of the CLA, it is appropriate for the scope of Pak Farm's liability to extend to the harm so caused. [25] As a consequence of Pak Farm's breach of duty of care, the Plaintiff suffered, and continues to suffer, loss, damage, injury and disability. Second Defendant - Third Party Claim [26] On 20 January 2016, Pak Farm was the Plaintiff's "employer' within the meaning of the Workers Compensation Act 1987 (NSW) ("WC Act"). [27] On 20 January 2016, and at all other material times, the Second Defendant was Pak Farm's insurer for the purpose of the WC Act. [28] At all material times: [28.1] Pak Farms was an "insured person" within the meaning of section 3(1) of the Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW) ("Third Party Claims Act"); [28.2] Pak Farms had a "liability" to the Plaintiff within the meaning of section 3(1) of the Third Party Claims Act; [28.3] the "liability" pleaded in paragraph 28.2 above was an "insured liability" within the meaning of section 3(1) of the Third Party Claims Act. [29] By reason of the matters pleaded in paragraphs 26 to 28 above, and by operation of section 4 of the Third Party Claims Act. the Plaintiff: [29.1] is entitled to recover the amount of the "insured liability" from the Second Defendant; and [29.2] the Second Defendant stands in the place of Pak Farms as if these proceedings were proceedings to recover damages and costs against Pak Farms. [30] In the premises, the Plaintiff claims damages as against the Second Defendant by reason of the matters pleaded in paragraphs 17 to 25 above."
It is not in dispute that the first defendant was the occupier of the property. Nor is it in dispute that Pak Farm was the plaintiff's employer engaged by way of contract.
By way of defence filed 14 July 2021 the first defendant relevantly pleads: "… [10] The first defendant denies paragraph 13 of the amended statement of claim and each of the particulars alleged against it, and further says: … d. The plaintiff carried out work at the direction of his employer pursuant to that subcontract; e. The plaintiff's employer was responsible for supervising and overseeing the aspects of the plaintiff's occupational health and safety whilst in the course of his employment; and f. The first defendant was not responsible for the manner in which the plaintiff chose to perform the pruning. … [13] The first defendant denies the plaintiff is entitled to damages, interest and costs as alleged or at all. … [15] Further, and in the alternative, the first defendant says that if the plaintiff sustained injury, loss, and damage as alleged (which is not admitted) then it was wholly caused by, or contributed to, by the plaintiff's own negligence. The first defendant relies upon ss 5R and 5S of the Civil Liability Act 2002 (NSW). Particulars of Employer's Negligence [16] The first defendant repeats the allegations of negligence in paragraph 22 of the amended statement of claim against the second defendant. … [17] Further, and in the alternative, the first defendant says it was not negligent in failing to take precautions against the risk of harm to the plaintiff with respect to the matters pleaded in the amended statement of claim by reason of the provisions of ss 5B(1), 5B(2), 5C and 5D of the Civil Liability Act 2002 (NSW). [18] In answer to the whole of the statement of claim, the first defendant says it is not negligent as the provisions of Sections 5B(1) are not met, and taking into account the factors and principles in Sections 5B(2) and 5C of the Civil Liability Act 2002 (NSW). [19] In answer to the whole of the statement of claim and pursuant to Section 5D(1) of the Civil Liability Act 2002 (NSW) the first defendant: (a) denies that any of its conduct caused or was a necessary condition of the harm allegedly suffered by the plaintiff; and/or (b) denies it is appropriate for the scope of the first defendant's liability (which is denied) to extend to any harm allegedly caused to the plaintiff. [20] In answer to the whole of the statement of claim, the first defendant says that the provisions of the Civil Liability Act 2000 (NSW) apply to the plaintiff's claim, including but not limited to Part 1A - Negligence and Part 2 - Personal Injury Damages. [21] Further, and in the alternative, the first defendant says that any risk of injury to the plaintiff by virtue of not using correct technique, was an "obvious risk" as that expression is defined in s 5F of the Civil Liability Act 2002 (NSW) and no relevant duty therefore existed to warn of that risk pursuant to s 5H of the Civil Liability Act 2002 (NSW).
On 17 February 2022 the second defendant Pak Farm filed a defence to the amended statement of claim. It relevantly pleads: [1] The second defendant admits paragraphs 1, 2A, 2B, 2C, 3 and 4 of the amended statement of claim. [2] In answer to paragraph 5 of the amended statement of claim the second defendant admits that Pak Farm employed the plaintiff and placed to work at the property located at 942 Pinnacle Road at Canobolas in the State of New South Wales. [3] The second defendant does not admit paragraphs 6 and 7 of the amended statement of claim other than to admit the plaintiff has satisfied the threshold to bring a claim for work injury damages. [4] The second defendant does not plead to paragraphs 2, 8, 9, 10, 11, 12, 13, 14, 15 and 16 of the amended statement of claim, as no allegation is made against it in those paragraphs. [5] In answer to paragraph 17 of the amended statement of claim, the second defendant admits that Pak Farm owed the plaintiff a duty to take reasonable care for his safety and that duty was non delegable but does not admit the balance of the paragraph. [6] The defendant denies paragraphs 18, 19, 20, 21, 22, 23, 24 and 25 of the amended statement of claim and denies that Pak Farm was negligent as alleged or at all. [7] Paragraphs 26, 27, 28 and 29 of the amended statement of claim are admitted. [8] As to paragraph 30 of the amended statement of claim the second defendant says that the plaintiff is not entitled to the relief claimed. [9] The second defendant does not admit that the plaintiff has sustained past and future economic loss, past and future loss of superannuation and Fox v Wood. [10] The plaintiff's loss and damage are not admitted. [11] The second defendant says that if Pak Farm was negligent as alleged, or at all, which is denied, then the plaintiff by his own conduct contributed to his alleged injuries, loss and damage. … [13] Further, and in the alternative, the second defendant says that as a result of the injury sustained by the plaintiff, the second defendant has paid compensation under the provisions of the Workers Compensation Act, 1987 (as amended) to, for and on behalf of the plaintiff and says that pursuant to the provisions of Section 151A(1) of the Workers Compensation Act, 1987 (as amended) the second defendant is entitled to an indemnity from the plaintiff in respect of compensation payments made. The second defendant pleads this entitlement as a set off to the claim. [14] In answer to the entirety of the amended statement of claim, the second defendant contends that pursuant to Section 151L of the Workers Compensation Act 1987 (as amended), the plaintiff has not taken reasonable steps to mitigate any damages and therefore any entitlement to damages (which is disputed) should be reduced."
Both defendants plead contributory negligence against the plaintiff. Both defendants seek contribution and apportionment against each other. These issues will be dealt with later in this judgment.

[12]

The plaintiff's background

In 1971, the plaintiff was born in Ghazni, Afghanistan. He is of a Hazara background.
The plaintiff's first language is Hazaragi. He speaks and understands that language well and that includes all Hazaragi dialects. He is unable to read or write Hazaragi. He also speaks and understands Urdu fairly well. He speaks and understands Dari at a very basic level. He speaks and understands Farsi/Persian but not very well. He is unable to read or write Urdu, Dari or Farsi/Persian. He can speak and understand basic English. He can read English but not very well. He is unable to write English. Most of the interpreters who have attended his medical appointments have been Hazaragi and interpreted English into one of the Hazaragi dialects. Some have been Dari and some Farsi/Persian and interpreted into those languages. He can use a mobile phone to send basic messages in English and undertake internet banking. He also uses some social media applications.
When the plaintiff was about 4 or 5 years of age, his family moved from Afghanistan to Quetta, Pakistan. He did not attend school in Pakistan. He started working when he was very young. He would buy and sell clothing in the local bazaar and sell things on the roadside to make enough money to feed his family. During the plaintiff's time in Quetta, Pakistan, many Hazari people in Afghanistan were killed in bombings and massacres due to their ethnicity.
In 2010, the plaintiff left Pakistan and was smuggled via Malaysia and Indonesia to Australia. He was sent to Christmas Island and spent between 2 and 3 months there. He was granted refugee status, given a visa, and transported to Sydney. He has since become an Australian Citizen. In about 2015, he was able to bring his wife, two daughters and son to live with him in Australia.
After arriving in Sydney, he did odd jobs and started a business with a friend buying wrecked cars and removing parts to sell as scrap metal.
In 2013, the plaintiff started a travel agency business in partnership with a friend, Sunny Singh ('Sunny'). The company was called Kumayl Pty Ltd and the travel agency was called Flights Haus. The business was located at Parramatta and later relocated to Harris Park. While he was a director of Kumayl Pty Ltd, he says that he did not earn any money from that business. In about 2015, when he had a dispute with his business partner, he left the business. At the travel agency, the plaintiff's main role was to introduce people of Hazara culture who wanted to travel to Afghanistan or Pakistan to the business. He says that he could not write flight tickets. His evidence is that he organised Pakistani visas but as he can't write English, it seems that his assistance was very limited.
The plaintiff's elder daughter, Homa Babayi, is currently studying at university. In her evidentiary statement dated 5 September 2022 at [29], she stated that her father's injury changed his behaviour and that caused her a significant amount of additional stress because she does all of what she calls the 'admin work' for the family. If her mother or the plaintiff need to go anywhere and have things interpreted for them, she has to go with them. She uses the plaintiff's phone or her laptop to access his bank accounts and pay the household's bills. Whenever mail comes, she opens it and reads it to the plaintiff. She also sends emails on her father's behalf. She thinks she has sent hundreds of emails on behalf of her father in relation to his compensation claim. Sometimes that just involves forwarding medical certificates or a document. At other times he will tell her what he wants to say in Hazaragi and she will write it in English and email it for him. When she is at home and her father wants to send a text message or other message to someone, he tells her what he wants to say in Hazaragi. She types the message in English and sends it for him. I have no hesitation in accepting her evidence as truthful. It largely accords with that of the plaintiff.
After leaving Flights Haus, the plaintiff moved to Orange, NSW to look for work and see whether he could get a job working at farms.
In early 2016, he gave his friend his phone number and the plaintiff's phone number was passed onto Mr Syed Musavi who owned Pak Farm.
In about mid-January 2016, Mr Musavi called the plaintiff and asked whether he would be happy to work as a fruit and nut picker. He said to Mr Musavi that he was interested, and Mr Musavi offered the plaintiff a job with Pak Farm. Pak Farm agreed to pay him $1.72 gross per tree he pruned. He had to work 5 days per week between 6.30 am and 3.30 pm. It was estimated that the plaintiff would be able to prune 200 trees per day and expected to earn $1,720 per week gross ($1,500 per week after tax).
Mr Musavi told the plaintiff to go to an apple farm in Canobolas ("the property"). He understood the apple farm to be run by Eden Park.

[13]

The evidence of Mr Roweth, the Owner and Occupier of Eden Park

Scott Roweth is the sole director and shareholder of the first defendant, Eden Park. He provided a witness statement dated 18 March 2022. He was born in 1984. His evidence provided helpful and uncontentious information as to the layout of the property, the pruning of water shoots on the apple trees, as well as the role of the seasonal workers. He specified the ladders and loppers used to prune the water shoots on the apple trees.
Since 28 February 2013, Mr Roweth has operated, through his company, a commercial fruit growing business called "Eden Park Fruits".
Eden Park Fruits, grows apples at an 89-hectare site at XXX Pinnacle Road, Canobolas ('the site'). The site includes an orchard (divided into blocks) and a packing shed. Eden Parks Fruits also grows cherries on a nearby property at XXX Wallace Lane, Sunnycrest. There are about 18,000 cherry trees on the Sunnycrest property.
The main activities of Eden Park Fruits are growing and maintaining its fruit trees (throughout the year), picking the fruit (February to March each year), packing the fruit for sale (throughout the year), and pruning the trees (ideally twice a year, in summer and winter, but usually only once per year).
In about 1992, Mr Roweth's parents, Edwin and Julie Roweth, bought the site. In about 1996, his parents planted trees on the site and from that time they ran an apple business from the site. While growing up and during his school years. Mr Roweth did all manner of work at the site with his parents. This included planting, installation of irrigation, picking, pruning and general orchard work. After finishing school, he worked full-time in his parents' business from about 2004 until early 2013.
In early 2013, his parents retired. On 28 February 2013, Mr. Roweth began running Eden Park from the site. A family trust owns the site.
Eden Park Fruits has 3 full-time employees: himself as manager, and two orchard hands. The orchard hands do everyday tasks such as spraying trees, mowing, hail netting, and packing. It is not (and never has been) part of their role to supervise others. ln the past, Eden Park Fruits has also engaged casual employees and/or contractors to pick fruit and prune trees.

[14]

Site layout

Mr Roweth provided a map of the site with his handwritten annotations on it. He prepared this map some years ago. North is at the top of the map. The map shows the blocks where Eden Park Fruits has grown apples since early 2013 (except for a separate block, added in 2021, which is not shown and not where the accident occurred).
Those blocks are denoted on the map as Oregon Spurs block 1 ('O/S BL1'); Oregon Spurs block 1a ('O/S BL1a'); Oregon Spurs block 2 ('O/S BL2"); Oregon Spurs block 2a ("O/S BL2a'); Oregon Spurs block 3 ('Oregan Spurs BL3'); Hi Early block 1 ('Hi Early BL1'); Hi Early block 2 ('Hi Early BL2'); Hi Early block 3 ('Hi Early BL3'); and Gala block ('Gala') Fuji block ('Fuji 12'). The accident occurred on Oregon Spurs block 2 (Oregon Spurs are also known as "red").
The size in hectares of each block appears directly below its name on the map. Each block has rows of apple trees on it. A photograph taken in 2019 shows, as an example, rows of apple trees in one of the blocks. Visible above the trees are hail covers (or hail nets), that sit about 6 metres above the ground in each row. They consist of white rolled fabric that opens out to create a cover to protect the fruit during bad weather.
In early 2013, when Mr Roweth began operating the business, based on the areas of the blocks, the number of rows in each block, and the spacing of trees in each row, he estimates that Eden Park Fruits had about 80,000 apple trees. In January 2016, the number of fruit trees remained the same.
From the time he started Eden Park Fruits, he has had the apple trees pruned annually so that the trunk and main branches that remain about 2.5 metres tall. This is to keep the trees and fruit to a uniform size. It also promotes tree health, allows sunlight to reach the fruit (it is not shaded by branches) and produces apples with a brighter colour.
In February to March each year, Eden Park Fruits picked fruit from its 80,000 or so apple trees and 18,000 or so cherry trees. On each occasion, Eden Park Fruits supplied orchard ladders to the workers doing the picking, so that they could reach the higher parts of the trees. Mr Roweth keeps these ladders on site for use by tree pruners and fruit pickers. There are two sizes of ladders with vertical heights of 1.8 metres and 2.1 metres. Mr Roweth is not aware of any falls from ladders at the site in those years prior to the subject accident.

[15]

Previous work undertaken by Mr Musavi

In the commercial fruit farming industry, it is not uncommon for contractors to approach farms to offer to do picking, packing or pruning. A lot of the work is seasonal.
In mid-2015, Mr Roweth was approached by Mr Musavi, who was referred to him by another orchard and offered to do pruning work at the site.
Around that time, Mr Roweth paid Mr Musavi to prune cherry trees for Eden Park Fruits. Mr Musavi had help from about 6 workers he brought along. A 'Hydralada' mechanical lifting platform is used to prune cherry trees but Mr Roweth and both experts of liability agreed it is not suitable for pruning apple trees. They used their own tree cutting equipment known as "loppers" and pruned about 4,000 trees. Mr Musavi used a Hydralada mechanical lifting platform during this work on the cherry trees. Mr Roweth inspected the work when it was complete and was happy with it. He did not see or hear of any accidents in connection with that work. Pruning cherry trees and apple trees is basically the same process, except that the cherry trees grown by Eden Park are taller. They are about 3 metres tall, whereas the apple trees at the site are about 2.5 metres tall (being the height of the trunk and main branches: however, vertical twigs or offshoots go higher than this).
Mr Roweth instructed Mr Musavi on the blocks he would start on at the site, and discussed when Mr Musavi would start. After this conversation, Mr Musavi provided him with a Certificate of Currency for a QBE workers compensation insurance policy in the name of Pak Farm After sighting the Certificate of Currency, Mr Roweth was happy to give Pak Farm the work. That was because his business had apple trees that needed pruning, and he was happy with the result of the cherry pruning work Mr Musavi and his workers had previously undertaken. Mr Roweth did not know if Pak Farm's workers would be the same ones as Mr Musavi had employed last time, but he had no reason to doubt they would be competent to do the job. Mr Roweth's opinion is that pruning is a straightforward task and requires no special skill or qualification.

[18]

Demonstration

On 15 January 2016, before work commenced on the site, Mr Roweth met with Mr Musavi to show him what work needed to be done to prune the apple trees. Although it was much the same as pruning cherry trees as Mr Musavi had previously done, he thought that he and his workers would be assisted if he demonstrated what needed to be done. As the plaintiff did not start work until 18 January 2016, he was not present at this demonstration.
Mr Roweth showed Mr Musavi and the Pak Farm workers the apple trees that needed to be pruned. He identified that the branches that needed to be cut - and which he cut during his demonstration - were vertical twigs known as "water shoots", which need pruning each summer. He pointed out the water shoots and said words to the effect: "These smaller vertical branches are called water shoots, they're the type you need to cut. Make the cut about 1 metre below the top of the tree, and close to the trunk of the tree - as I'm doing here."
It is Mr Roweth's evidence that pruning water shoots can mostly be done by workers standing on the ground (that is, without ladders) as he did during his demonstration. He says that ladders are sometimes needed to reach some of the shoots. Each tree takes about 2 minutes to prune. There are 4 photographs taken by Mr Roweth in 2019 that demonstrate (as he did on 15 January 2016) how to prune the water shoots of apple trees from the ground. The water shoots in the photographs are about a year's worth of growth. The water shoots are only about 1 centimetre thick.
Mr Roweth did not instruct or demonstrate to Mr Musavi and his workers to cut any parts of the tree besides the water shoots, nor did he instruct or demonstrate to them to stand on or near the top of a ladder. His evidence is that there was no need for Pak Farm employees to do that, because of the height of the tree trunk and the location of the water shoots that needed to be cut.
Mr Musavi spoke to Mr Roweth in English, but during his demonstration, Mr Musavi spoke to the Pak Farm workers in a different language. Mr Roweth assumed he was translating for them. So far as he could tell, the workers did not speak fluent English.
Mr Roweth showed Mr Musavi and the Pak Farm workers where to find the orchard ladders. These were on a trailer that had been brought down to the first block they were to commence work. After his demonstration, he left Mr Musavi and the Pak Farm workers to begin work.
Supervision
Mr Roweth does not know if Pak Farm gave its workers any training or instructions for pruning trees (other than the demonstration and instructions he gave), or for using ladders.
He did not supervise or instruct the Pak Farm workers when they were pruning. He did not think he needed to supervise them, as they were not his employees and he knew that Mr Musavi and his workers had previously done a competent job pruning the cherry trees. He checked on the progress of the apple pruning work every 1-2 days or so by counting the trees that had been pruned and checking they had been properly pruned. He did not check or supervise how the Pak Farm workers did the work, but only checked their progress (the number of trees correctly pruned), because the basis of payment was per tree. Most mornings, he saw Mr Musavi on-site supervising the Pak Farm workers. He did not see Mr Musavi prune the apple trees himself.
Nor did Mr Roweth have any sign-in sheet so did not know the names of the Pak Farm workers who were pruning each day. He usually saw about 4 or 5 Pak Farm workers on site.

[22]

The plaintiff's versions of the accident

On 18 January 2016, the plaintiff started work at the site. He was introduced to a man who showed him what he had to do at the property. He does not remember the man's name, but remembers that he was from Malaysia ("the worker"). There are no eyewitnesses to the plaintiff's fall. Another worker saw the plaintiff when he was on the ground shortly after the fall. I accept the plaintiff's evidence that he fell off a ladder to the ground. However, the plaintiff's version of how the accident occurred is highly contested. The plaintiff gave inconsistent evidence. He was not a credible witness. I have set out my findings in more detail on this topic later in this judgment.
Referring back to the plaintiff's narrative, the worker showed the plaintiff how to prune the apple trees with a tree lopping tool. He did that by showing him how he pruned the watershoots on a tree. Shortly I will refer to the plaintiff's various versions of how the accident occurred. It is the plaintiff's evidence that he was told that if there were parts of the tree that he could not reach, he should use a ladder. He says he was also told that he should use the ladder to reach the top part of the tree when pruning it. According to the plaintiff, the worker had a ladder with him, but he did not show him how to use it safely or talk to him about safety or any dangers.
The worker just showed the plaintiff how to put the ladder up so he could reach the tree branches and the lane between trees that he had to go down when pruning them. It is the plaintiff's evidence that he did not receive any safety training or general training about how to work safely on the property. The only thing he was spoken to about was what cuts to make to prune the tree properly. The only tools the plaintiff was shown was the ladder and tree lopping tool. The plaintiff remembers that the tree-lopping tool felt quite heavy.
He was shown a storeroom on the farm by the worker that had ladders stored there. The worker said to the plaintiff that he should get a ladder from the storeroom when he started work. The plaintiff saw that most of the workers had their own tree-lopping tools. He was provided with a tree lopping tool by his employer, Pak Farm. It is common ground that the tree loppers were provided to the plaintiff by Pak Farm and the ladder was provided by Eden Fruits.
To the plaintiff, the property appeared to be very big, and there were a lot of different people moving around it. As far as the plaintiff could see, the property only contained apple trees. The plaintiff would sometimes see Mr Musavi walking around the trees looking at the work that was being done. He also saw the worker walking around and doing the same thing.
On the morning of 18 January 2016, the plaintiff commenced work. He also worked on 19 January 2016. The first two days of his work were without incident. The accident occurred on the third day, namely 20 January 2016. 7:15am 20 January 2016. He had pruned 441 trees. That was slightly more than the quota expected each day. On each of the previous two days, he says that he used the ladder.
The plaintiff did not meet or speak to the people who owned the property and ran the farm on it. During his time at the property, he saw about 3 or 4 people who he thought were the owners or bosses walking or driving around near the fruit trees. They appeared to be of Australian background, whereas most of the people who worked for Pak Farm were from lots of different countries. The people who he thought were the owners of the farm came with the Pak farm supervisors, to where they were all working. They looked at the apple trees that were being trimmed and watched the work being carried out.
In his witness statement, the plaintiff deposes to the following: Between 6.30 am and 7.00 am, on 20 January 2016, he started work at the property. This is not in dispute. At about 7.15 am, the plaintiff says that he was pruning a tree that was the last in the last line of trees on the property. There were two other Pak Farm workers working near him at the time of the accident. They were each pruning different trees. He does not remember their names, but he remembers one of them was from Thailand. Neither of them witnessed the accident.
The plaintiff says he was not able to reach the top-level branches of the tree he was pruning. He put a ladder up so that he could reach them. He had used the ladder on other trees before he got to the tree where he had his accident without any problems. He correctly describes the ladder as having three legs (the tripod) that touched the ground. The rungs on the ladder were round, like a pipe, and did not have any grips on them.
The plaintiff says that he ascended the ladder with a tree lopping tool and started pruning the water shoots on the tree. He was cutting the top-level branches horizontally. He could not easily reach the area he had to cut, that was close to the trunk of the tree. The plaintiff says he was standing at the top and second top rung of the ladder and leaning towards the trunk of the tree so that he could prune a branch. He was about 2.5 metres from the ground at the time.
The plaintiff says that he fell to the right side of the ladder and towards the ground. He provided a similar version of events on admission to Orange Base Hospital. The clinical notes from Orange Base Hospital, from his admission on 20 January 2016 to his discharge on 23 January 2016 state that the plaintiff presented following a fall from a ladder. He sustained a right elbow dislocation. This dislocation was relocated in the Emergency Department. He sustained axillary, median and ulnar neupraxias after the supraclavicul block and this improved throughout admission (CB 663).
One of the workers who was near him told Mr Musavi that the plaintiff had an accident. Mr Musavi came over to where he had fallen. No statement was provided from the worker or Mr Musavi. While it would have been helpful, I do not make any adverse finding as to the absence of a statement by Mr Musavi and Pak Farm (in liq). The plaintiff did not receive any first aid on-site. Someone came in a car and drove the plaintiff to the Orange Base Hospital.
The plaintiff says that there was nothing to stop him from hitting the ground if he fell from the ladder. He hit the ground very hard. He does not remember exactly how he landed, but he remembered that he landed on his right side. He immediately felt a terrible pain in his right arm and right shoulder. He was screaming from the pain where he fell.
In cross-examination, the plaintiff gave three conflicting versions as to how he came to fall from the ladder. In summary, they are first, he fell from the top and second top steps of the ladder; secondly, he fell when he had one foot on the bottom step and another on a branch; and finally he fell with one foot on the top step and the other foot on a branch. The plaintiff's differing versions of how he came to fall from the ladder make it very difficult to establish, on the balance of probabilities, the circumstances by which the plaintiff came to fall from the ladder.
The plaintiff during cross-examination reiterated the version contained in his statement namely that just before the fall, he was "standing at the top and second top rung of the ladder and leaned towards the trunk of the tree so that [he] could prune a branch." The plaintiff's other versions of events given in cross-examination are as follows: "Q. Right, so, for most of the trees, you didn't use a ladder. A. INTERPRETER: Yes. Q. So most of the trees were at a height that you were quite able to prune the entire tree from the ground using the set of pruning shears? A. INTERPRETER: Can I answer for - explain? Q. I thought you did answer, but if you want to keep going. A. INTERPRETER: So it was just the difference between the trees, that sometimes I had to stand on either one or two steps of the ladder to just prune the trees, or sometimes I had to stand on three or four step[s] of the ladder."
Then, the plaintiff gave a differing account. Rather than having both feet on the ladder, he said he had one foot on a branch: INTERPRETER: […] So one of my - I've put one of my foot on the - one of the step[s] of the ladder and the other leg was on the - one of the branch[es] of the tree. […] Q. [L]et's go back to where you were. So you…put one foot on the step rung of the ladder, and the other foot on the tree. Is that what you did? On the branch. A. INTERPRETER: Yes. Q. Then you fell. A. INTERPRETER: Then after that, I did not understand what happened.
Here, the plaintiff's evidence is that he had one foot on a rung and one foot on a branch. He was later asked to confirm the sequence of events: Q. […] You've said because of the height [of the tree] you had to use the ladder. A. INTERPRETER: Yes. Q. So you went and got the ladder. A. INTERPRETER: Yeah. Q. You set the ladder up. A. INTERPRETER: Yeah. Q. You got the pruning tool. You put your first foot, you put your foot on the first rung of the ladder. A. INTERPRETER: Yes. Q. You then needed to get into the trunk of the tree where the shoot was. A. INTERPRETER: Yes. Q. So your next foot, you put on a branch of the tree and you leaned into the trunk of the tree. A. INTERPRETER: Yes. Q. Is that what happened? A. INTERPRETER: Yes. Q. Are you sure about that? A. INTERPRETER: Yes. […] Q. And you understood the sequence that I was putting to you? "A. INTERPRETER: One thing, should I say? Q. Yes, by all means. A. INTERPRETER: So, one thing which I have not mentioned, or I want to mention, that I have started from the bottom, working, and then I went on the top. Q. That's how you did your work, was it? You'd start at the bottom and work your way to the top? HER HONOUR: I'm sorry, I didn't mean to interrupt. Did you do the pruning, on that particular tree, as much as you could from the ground before you got on the ladder? Is that what you're saying? A. INTERPRETER: Yes."
In re-examination, the plaintiff gave a third version of the fall - that he had one foot at the top of the ladder, and one foot on a branch: "Q. What part of your body was [about 2.5 metres above the ground]? A. INTERPRETER: So, so I was on the top step of the ladder and one of my foot was on the top step of the ladder and then the other one was on the branch of the tree. Q. It was your feet, was it? A. INTERPRETER: Yes."

[23]

The first defendant's submissions

Exactly how and why the plaintiff fell is unclear. It is the plaintiff's evidence that he does not remember how he fell from the ladder. Nor does he remember exactly what happened next. He believes the ladder either went from underneath him or his foot slipped from the ladder. There are many possible causes for such a fall. However, the onus on the plaintiff in terms of proving his case against Eden Park is clear. In Rallis v Pang [2003] NSWCA 202 - a case involving a trip and fall on a footpath - Tobias JA stated, at [26]: "[26] In order to assert a duty of care to avoid the risk of injury that she sustained, the claimant was required to establish with a degree of precision not only the location but also the manner and cause of her fall."
In Shoalhaven City Council v Pender [2013] NSWCA 210 ('Pender'), a case involving a slip and fall on a ferry ramp, McColl JA stated at [47]: "[47] In order for the respondent to succeed against the appellant, he had to adduce evidence supporting a positive inference implying negligence on its part, an inference which arose as an affirmative conclusion from the evidence and one which was established to the reasonable satisfaction of a judicial mind. The evidence had to rise above the level of conjecture, could not be based on possibilities but had to be established as a matter of probability, and had to do more than give rise to conflicting inferences of equal degrees of probability."
The first defendant submitted that this is not purely a late invention by the plaintiff, because it is the version given to his liability expert in July 2017. However, that is evidence of instructions, not truth; and at the hearing, this version only emerged during re-examination, after the plaintiff had given two earlier accounts of the fall. This third version still offers no coherent explanation as to why the plaintiff would be up the top of the ladder in the first place.
Those three conflicting accounts relate to the plaintiff's location at the time of the fall. There is then a further question - which none of them answers - as to how the fall then occurred. For example, it may have occurred because the plaintiff overbalanced (by overreaching, by the branch giving way, or by the loppers becoming caught); it may have occurred by slipping (because his shoes or a rung were slippery - which could happen in various ways); or it may have occurred because the ladder gave way (due to improper positioning, rocking it unnecessarily, or some defect in the ladder). The plaintiff has not established the manner and cause of his fall with any precision. In practical terms, then, the only way he can succeed is by showing that liability necessarily arises on all three versions of events. That is a heavy burden. The defendant submitted that those difficulties are compounded by the plaintiff's dishonesty.
The second defendant submitted that on this evidence, the sequence is clear. The plaintiff began this tree by pruning the lower parts of it from the ground. To reach some higher branches, he then stepped onto the first rung of the ladder and put his other foot on a tree branch - evidently one of the lower branches that are visible in photos. He then leaned towards the trunk of the tree and fell. This sequence is supported by the height of the trees; by the fact that the plaintiff had no need to climb to the top of the ladder (and gave no evidence that he had ever done so before this tree); and by the absence of any explanation from the plaintiff as to why he would have done so for the last tree. On the other hand, it is a sequence that emerged for the first time in the witness box.

[28]

Training and induction

Mr Williams noted that, taking into account the issue regarding communication and training, prior to the commencement of the work, Eden Park got all the workers together and provided them with an explanation of what was required, through a translator [Mr Musavi]. However, the plaintiff commenced work after the explanation was given. Some training was provided to the plaintiff as to the provision of a ladder, the procedure for the water shoots with the tree lopper by a Pak Farm worker before he started work.
As to information, instruction and training, Mr Williams opined that Eden Park fulfilled that duty to the best of its ability. The effectiveness was reduced significantly by Pak Farm introducing a worker who did not do that induction, if one accepts the plaintiff's statement in which he stated that he was not shown how to use the ladder and was not provided with training about how to work safely.
As to this issue, Mr Patrick opined that there was no written documented safe work procedure or induction. The manager of Pak Farm did not give evidence, it is not known of Pak Farm whether the defendants went through the safety requirements about using the ladder and the shears.
As to the hazard identification assessment, Mr Williams stated that it is common for people to be working a very short distance off the floor where there is very limited risk in that work method. He opined that Eden Park did their reasonable best to provide the necessary information, instruction and training and that was negated by Pak Farm's actions in bringing a worker into the workplace several days later who had not received that information, instruction and training.
Mr Patrick's view is that there is an identified risk in workers using the shears on the ladder which is a system where three points of contact with the ladder cannot be maintained by the user. Therefore, Mr Patrick concluded, that if one is climbing up the ladder and a person is required to hand prune, there is a risk of falling.
As to supervision, Mr Williams opined that Pak Farm was predominantly obliged to supervise their workers, Mr Patrick agreed but added that Eden Farm had a duty to monitor the safety of workers. Monitoring is specified in the Work Health and Safety Act 2011 (NSW) s 19(3)(g) ('the WHS Act').
As to the risk of falls, Mr Williams maintained that because workers were only required to perform work that necessitated standing on the first or second step, the risk is minimal and acceptable because the workers are at a low height.
Mr Patrick disagreed because the practice of using shears on the ladder meant that the plaintiff could not maintain three points of contact while using a ladder.
Mr Williams considered that the risk of falling is restricted by the height of the trees, in accordance with the ASS 1000. He also considered that this is a commonly accepted practice in the Australian orchard industry, that is, the practice of stepping up on the first or second rung without maintaining three points of contact, although bracing with the knees could be considered a third point of contact.

[29]

Alternative practices available

As to whether there were any reasonably practicable alternatives to the work, and risk control, systems, methods or practices that could have been adopted to avoid foreseeable risks of injury, Mr Patrick stated in the report that, presuming the plaintiff was required to be at height, the pruning loppers should be replaced with telescopic shears or pole rope/wire (pulley) operated shears. Secondly if one continues to use the same type of lopping tool as was used by the plaintiff, the workers could be made only prune to the level that they can be reached from the ground. Mr Patrick then considered that, if the ladders remain in use, then pruning that requires single handed operation should be used to maintain three-point contact. Mr Patrick continued that if two-handed pruning shears are to be used, then the use of flat platform ladders with non-slip steps could be employed.
Mr Williams believed that the majority of the pruning could be conducted from the ground, although ladders may be required to reach the upper limbs. He said it is also possible to simply grab hold of the lateral shoot and twist and pull them off, although this would not be the most efficient method.
In cross-examination, both the experts agreed that there were pruning platforms available for use at the farm. However, having agreed that the highest tree was around 2.6m, the experts agreed that it is not reasonably practicable to use the Hydralada platform to raise a person 200-250mm in the air when this could be reached by using the first step of a ladder. Mr Williams further stated that if they were utilised, harnesses would need to be used and a rescue plan would need to be developed as if someone falls out there might be suspension trauma. As such a second machine might be needed to release them. This provides further impracticalities (T231-232). I have already made a finding that the Hydralada is primarily used for cherry picking. It is large the property is large and not suitable for trimming water shoots on apple trees.
Mr Williams explained that the loppers are a mechanical tool that utilises long handles to multiply manual effort to shear the subject matter between the jaws. In this matter, the tree lateral shoots were not very hard, so they would shear through these shoots with ease.
Both experts "…talked about electric shears, using in one hand. They agreed that electric shears weren't readily available back in 2016 (T592.5-10)". The lack of availability of electric shears meant that the use of manual shears was standard practice at the time of the accident. I accept that electric shears were not readily available back in 2016.

[34]

Accepted practice

As to whether the system of pruning apple trees at the premises conformed with accepted Australian orchard industry standards in 2016, Mr Williams stated, yes and he went on to opine that he considered it was standard practice in the orchard industry and probably still is. It is possible to obtain hydraulic or battery/electrical loppers and these are used more and more. Their use allows the user to maintain three points of contact on ladders and they also reduce any potential for musculoskeletal injuries, however, the water shoots being cut in this particular case are very flimsy and that risk, therefore, is not present in these circumstances.
Mr Williams also stated that he has seen this practice occur time and time again in fruit orchards around Australia. As previously stated, fruit orchards are his area of expertise. Mr Williams has extensive professional experience in risk management and has specialised in occupational health and safety. This is the common system employed to get this kind of work done. His opinion is that this includes the use of two-handed loppers. Mr Williams has not observed use of telescopic loppers in orange, apple and cherry orchards, where the heights of the trees are kept fairly restricted.
Mr Patrick also stated that he was not aware if there was a documented process system. He also opined that it did not conform to generally accepted safe practices, particularly in relation to the use of two-handed loppers while standing on a ladder. He was unaware of any research on the methods for safe pruning in the orchard industry. On that note, Mr Patrick reiterated that the standards referred to above require three points of contact be maintained by the user while using ladders.
As to using the loppers and a tripod ladder of either height (1.8 or 2.1 metres), having safely performed the pruning of branches Mr Williams' opinion is that this is the common industry practice and he is not aware of a significant number of injuries from falls using this practice. That is, this particular work could have been safely performed.
Both experts acknowledged that the plaintiff performed work on a "piece work" basis which had the effect that he would be paid less if he performed the work slowly because this would result in him pruning fewer trees. The experts also acknowledged that taking certain additional safety steps may have the effect that the plaintiff does indeed perform the work slower. This factor may impact upon other factors, for instance, a higher level of supervision and/or monitoring may be appropriate in circumstances where the incentives to perform work faster results in the risk the workers may "cut corners". However, this aspect lies outside the scope of the assumptions and questions posed to the experts in this particular conclave and therefore the experts provide no further comment.

[36]

Obvious risk - Pleaded by Eden Park

Eden Park pleads that any risk of injury to the plaintiff by virtue of not using the correct technique, was an "obvious risk" as that expression is defined in s 5F of the Civil Liability Act 2002 (NSW) and therefore no relevant duty existed to warn of that risk pursuant to s 5H of the Civil Liability Act
In determining the application of s 5H in this case, it is first necessary to consider whether the risk undertaken by the plaintiff was "obvious" under the Civil Liability Act.
Mr Williams' view is that of the plaintiff's version of events it is an obvious risk. According to the liability experts, Mr Roweth and the measurements of the height of the tree trunks, there was no need for the plaintiff to be on the top run of the ladder to prune the watershoots.
Sections 5F, 5G and 5H of the Civil Liability Act read: "5F Meaning of "obvious risk" (1) For the purposes of this Division, an obvious risk to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person. (2) Obvious risks include risks that are patent or a matter of common knowledge. (3) A risk of something occurring can be an obvious risk even though it has a low probability of occurring. (4) A risk can be an obvious risk even if the risk (or a condition or circumstance that gives rise to the risk) is not prominent, conspicuous or physically observable. 5G Injured persons presumed to be aware of obvious risks (1) In proceedings relating to liability for negligence, a person who suffers harm is presumed to have been aware of the risk of harm if it was an obvious risk, unless the person proves on the balance of probabilities that he or she was not aware of the risk. (2) For the purposes of this section, a person is aware of a risk if the person is aware of the type or kind of risk, even if the person is not aware of the precise nature, extent or manner of occurrence of the risk. 5H No proactive duty to warn of obvious risk (1) A person (the defendant) does not owe a duty of care to another person (the plaintiff) to warn of an obvious risk to the plaintiff. (2) This section does not apply if - (a) the plaintiff has requested advice or information about the risk from the defendant, or (b) the defendant is required by a written law to warn the plaintiff of the risk, or … (3) Subsection (2) does not give rise to a presumption of a duty to warn of a risk in the circumstances referred to in that subsection.

[37]

Obvious risk

In CG Maloney Pty Ltd v Hutton-Potts [2006] NSWCA 136 ('CG Maloney'), Santow JA observed at [173] that "[m]uch depends, in the application of provisions dealing with obvious risk, upon the degree of generality or precision with which the risk is stated".
The question for this Court is whether the risk was one which, in the circumstances, would have been obvious to a reasonable person in the position of the plaintiff exercising ordinary perception, intelligence and judgment. That was the position at common law as stated in Vairy v Wyong Shire Council (2005) 223 CLR 422; [2005] HCA 62 ('Vairy') at [126]-[129]; Mulligan v Coffs Harbour City Council [2004] NSWCA 247 per Tobias JA at [161], and continues to apply under the Civil Liability Act: see Tobias JA in Jaber v Rockdale City Council [2008] NSWCA 98 ('Jaber').
"Obvious", under its ordinary meaning and in s 5F(1), means something which is "clearly apparent or easily recognised or understood"; see Jaber at [35], Whether a risk is obvious is a matter to be determined objectively.
Section 5F(2) states that an obvious risk includes one which is "common knowledge". What is common will depend on the background and experience of a reasonable person in the position of the plaintiff, including his age, observations and previous involvement with the activity; Great Lakes Shire Council V Dederer [2006] NSWCA 101 at [152] ('Great Lakes'); Doubleday v Kelly [2005] NSWCA 151 at [19].
Further subsections demonstrate the width of the statutory conception of what may be considered "obvious". Section 5F(3) states that a risk may be obvious even if it has a low probability of occurring. Section 5F(4) provides that a risk can be obvious even if it is not prominent or physically observable.
The parties referred to Van Der Sluice v Display Craft Pty Ltd [2002] NSWCA 204 ('Van Der Sluice') at [72] and [74]. In Van Der Sluice, Heydon and Meagher JJA and Foster AJA stated at [72] - [74]: "[72] The answer to this argument is that while it may be reasonably foreseeable that many men in that position would fall off, the plaintiff was a skilled workman experienced in this type of repetitive work. In 1993 the plaintiff had set up a freelance decorating business, and most of the work it did was for the defendant. From 1993 to 1996 the plaintiff had done freelance work for the defendant on an extensive basis - as he said in chief, it was "a fairly long association". The September-February period each year was very busy, but not the rest of the year. The plaintiff had worked at the Imperial Arcade for the defendant two years before the accident. In September-October 1996 the officers of the defendant went to some trouble to secure the plaintiff's services. Not only had the plaintiff done work of this kind before for years without mishap, he had done it on that earlier occasion at the Imperial Arcade, and he did it on this occasion without mishap until he fell. The defendant could not reasonably foresee that he would fall, because the defendant was entitled to assume that he would identify any risk of falling and take measures to prevent that risk from arising if he did. For the defendant it was not reasonably foreseeable that the plaintiff would come to harm because of the skill it had detected in him during their earlier association - which skill the defendant had gone to considerable lengths to acquire on this occasion - and because of his experience, and hence his capacity to perceive any possible risks and his capacity to devise methods of negating them by not leaning too far to the right or left, moving the ladder appropriately, and having it held by Mr Smink or someone else if necessary. … [74] A primary difficulty in the plaintiff's position goes beyond the fact that he ought to have perceived the dangers in working very high on the ladder because of his experience in that type of work and on the very site of his injury, and beyond the fact that it would have been reasonable for the defendant to assume that he, as a skilled and experienced contractor in that line of work, would have perceived and guarded against those dangers. The fact that the higher up a ladder one moves the more care one must take for one's own safety is one of those simple facts affecting human existence in the physical world which adults in industrialised societies have learned by the time, or indeed well before the time, they have become adults. It is a fact as fundamental, as elementary, as clear and as well known as, for example, the fact that it is dangerous to behave boisterously near pots cooking on stoves, the fact that broken glass needs to be carefully handled when picked up, the fact that rocks along the seashore can be slippery, the fact that shells in the sand of beaches can be sharp, and the fact that when moving about rubbish dumps one must bear in mind the possibility that rubbish may be lying there. These are matters which no adult need be told about and which any adult can be trusted to guard against the dangers of because it is part of the equipment of all normal adult human beings. All citizens can safely and reasonably assume that each normal adult human being acting autonomously and voluntarily will not incur unnecessary and blatantly obvious risks. The assessment of risk in those areas is for the judgment of each normal adult in the light of the particular adult's capacity. Mr Smink felt that for him it was risky to climb the ladder. The plaintiff did not. But Mr Smink was a backpacker from Holland working in Australia, not a skilled and experienced specialist. In view of the interposition of the judgment of the workmen between the task which the defendant had engaged them for and any risk of injury, the risk of injury was not reasonably foreseeable."
While it may be an obvious and universally recognised risk to be working very high on a ladder, the plaintiff here is not in the same position as the plaintiff in Van Der Sluice, although the backpacker in that case thought it was risky to climb the ladder. Van Der Sluice was decided before the introduction of the CLA in particular ss 5F, 5G and 5H.

[38]

The plaintiff's submissions on obvious risk

The plaintiff was limited by his limited grasp of the English language and his lack of formal education. Pak Farm hired a predominately multicultural workforce.
The plaintiff submitted that the obvious risk defence does not apply to this case by reason of the statutory exclusion of cases where there is a positive obligation to warn through instruction or training.
Nor do the defendants allege that the use of a ladder posed an "obvious risk", rather they assume that there is a "correct technique" to be used. It fails to identify whether the "correct technique" related to the pruning of fruit trees generally; the pruning of fruit trees using a ladder and a two-handed tree lopping tool; the climbing of a ladder; or, the standing on a ladder. Precisely what "correct technique" was intended is immaterial, as the plaintiff was not instructed or otherwise informed of it.
By operation of section 5H(1) of the Civil Liability Act, a defendant does not owe a duty of care to a plaintiff to warn of an obvious risk to the plaintiff. An exception to that proposition arises where a defendant is required by a written law to warn the plaintiff of the risk (Civil Liability Act, s 5H(2)(b)).
The question of what constitutes a "written law" within the meaning of the Civil Liability Act has not been the subject of determination. In Kempsey Shire Council v Five Star Medical Centre Pty Ltd [2018] NSWCA 308, Simpson AJA observed at [112] that the Civil Aviation Safety Regulations 1998 (Cth) and the Manual of Standards made under those regulations might amount to "written law" within the meaning of the section, but did not determine the point.
The Civil Liability Act does not provide any assistance, other than to make a distinction between "written law" and "unwritten law" in sections 5N. Unlike other jurisdictions, the Interpretation Act 1987 (NSW) does not define "written law" or "unwritten law", despite using those terms.
When coming to construe section 5H(2)(b), the Review of the Law of Negligence (Final Report, September 2002) ("the Ipp Report") is instructive. The Ipp Report (at page 46) recommended that a professional's duty to inform should be legislatively stated in certain respects, but only in relation to medical practitioners. With respect to the proactive duty to inform, the Ipp Report recommended the enactment of a legislative provision to the effect that a medical practitioner would not breach a proactive duty to inform only by reason of their failure to warn of an obvious risk (Ipp Report, [3.63]-[3.64], Recommendation 7). Those recommendations concerning the proactive duty to inform were based upon the principle of personal responsibility (Ipp Report, [3.63]). I read these recommendations as being confined to medical practitioners. They are not relevant here.
In order to give wider effect to the rationale underlying Recommendation 7, the Ipp Report recommended the enactment of a provision to the effect that a person cannot be held to have breached a duty to inform only by reason of a failure to warn of an obvious risk of personal injury, unless required to do so by statute (Ipp Report, [4.29], Recommendation 14).
Relevant to the present case, the Ipp Report went on to state at [4.35] and [4.36]: "[4.35] The Panel considers that the scope of the provision contained in Recommendation 14 should be limited in one significant respect. There has long been a principle of employers' liability law that a person who has control over the working environment is required take particular care for people in that environment. This obligation may extend to warning of obvious risks. It is not the Panel's intention to modify the law in this respect. We therefore recommend that the principles contained in Recommendation 14 should not apply to 'work risks'. The Panel recommends that 'work risks' be defined as 'risks associated with work done by one person for another'. [4.36] It should be noted that this recommendation says nothing about when work risks should be the subject of a warning, about who should give that warning or to whom it should be given. Its only effect is to exclude work risks from the operation of the rule that there can be no liability for failure to warn of obvious risks."
Earlier in this judgment, I have set out s 5G of the Civil Liability Act. It does not exclude "work risks".
Next, the plaintiff referred to the Work Health and Safety Act 2011 (NSW) ('WHS Act') and the Work Health and Safety Regulation 2011 (NSW) ('the WHS Regs') could amount to "written laws" for the purpose of section 5H(2)(b) in the Code of Practice - Managing the Risk of Falls at Workplaces 2011 ('code of practice').
The Code of Practice (1 CB 218) was made by Ministerial approval under section 274 of the WHS Act. The Code of Practice may be used as evidence of whether or not a duty or obligation has been complied with in proceedings for offences under the WHS Act (WHS Act, s 275). Save in particular circumstances that do not apply to these proceedings, the WHS Act is not to be construed as conferring a right of action in civil proceedings relating to a contravention of the WHS Act, nor does it affect the extent to which a right of action arises, or civil proceedings may be brought, in relation to a contravention of the WHS Act (WHS Act, s 267). It is unlikely that the Code of Practice Amounts to a "written law", however, it is an important resource in assessing whether Eden Park and Pak Farm breached the duties they owed to the plaintiff (see, in particular: Parts 2, 3 and 7).
Section 19 of the WHS Act imposes a primary duty of care on persons carrying on a business or undertaking in the following terms: "19 Primary duty of care (1) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of - (a) workers engaged, or caused to be engaged by the person, and (b) workers whose activities in carrying out work are influenced or directed by the person, while the workers are at work in the business or undertaking. (2) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking."
The duty contained in section 19 of the WHS Act extends to a requirement that the person carrying on the business or undertaking ensure, so far as is reasonably practicable "the provision and maintenance of safe systems of work" (WHS Act, s 19(3)(c)) and "the provision of any information, training, instruction or supervision that is necessary to protect all persons from risks to their health and safety arising from work carried out as part of the conduct of the business or undertaking" (WHS Act, s 19(3)(f)).
A person carrying on a business or undertaking must ensure that the information, training and instruction provided to a worker are suitable and adequate having regard to the nature of the work carried out by the worker; the nature of the risks associated with the work at the time the information, training or instruction is provided; and, the control measures implemented in accordance with the WHS Act or WHS Regs (WHS Regs, r 39(1) & 39(2)). The information, training and instruction is, so far as is reasonably practicable, required to be provided in a way that is readily understandable by any person to whom it is provided (WHS Regs, r 39(3)).
Some of the plaintiff and Eden Park's submissions overlap the issues of obvious risk and sections 5B and 5D of the Civil Liability Act.
Instruction to workers is not required for simple and commonplace activities: Electric Power Transmission Pty Ltd v Cuiuli (1961) 104 CLR 177 (in that case, cutting up sticks with a hatchet). Using a ladder is similarly simple and commonplace. Further, the risk of falling from the top of a ladder is obvious, as is the risk of falling by putting one foot on a ladder and the other on a thin and flexible branch. There is no duty to warn of obvious risks (or to give an equivalent instruction): CLA s 5H(1). True it is that some might choose to warn of those risks "on a behavioural basis" - that is, because some people still ignore obvious risks; but that is not a duty known to the law.
There was a suggestion in the joint liability evidence that workers should have been inducted on the safe use of ladders, including the maximum height to climb, and that for a multicultural workforce, who may not speak English, this should be by way of pictograms or photographs (with ticks and crosses) showing what to do or not to do. That does not overcome the "obvious risk" point; and it was, again, entirely a matter for Pak Farm as the plaintiff's employer (given, especially, that not everything can be clearly conveyed in pictograms and photographs). But it also raises questions around the reasonableness of precautions, and the burden of taking precautions against other risks of harm; CLA ss 5B(1)(c), 5C(a). If every aspect of safety must be covered, there will be an absurd number of pictograms and photos:

[39]

Resolution

Since 1992, the apple trees had been pruned on the property, first by Mr Roweth's parents and then by Mr Roweth in the same way as it was on 20 January 2016. The use of the ladders and tree loppers were also commonly used for fruit picking around NSW. Prior to the plaintiff's accident, Mr Roweth was unaware of any accidents arising from the use of the ladders and tree loppers on his property. Although there is some incentive to cut corners as he was being paid by the tree, it is my view that the awkward method the plaintiff adopted would be more time-consuming and nor would it make more economic sense.
The plaintiff admitted that the man from Malaysia (an employee of Pak Farm) showed him what to do when he started to work on the site. Even though Van Der Sluice was decided before the introduction of the Civil Liability Act and in particular the provisions of ss 5F, 5G and 5H, the central tenet stands that the higher up a ladder one moves the more care one must take for one's safety still stands. This is one of those simple facts affecting human existence in the physical world which adults in industrialised societies have learned by the time, or indeed well before the time, they have become adults.
These are matters which no adult need be told about and which any adult can be trusted to guard against the dangers of because it is part of the equipment of all normal adult human beings. All citizens can safely and reasonably assume that each normal adult human being acting autonomously and voluntarily will not incur unnecessary and blatantly obvious risks. The assessment of risk in those areas is for the judgment of each normal adult in the light of the particular adult's capacity. This logic is still sound.
Even though the plaintiff's English was not good, he pruned 442 trees in 2 days without incident. I accept that the plaintiff had to use tree loppers. However, there was simply no need for the plaintiff to climb up to the 6th rung of the ladder nor increase his chances of falling by placing one leg on a branch in order to prune the water shoots. It was foolhardy to do so. It is my view that the risk of harm would have been obvious to a reasonable person that climbing high up a ladder to the 6th rung is dangerous. In addition, then putting a foot onto a branch at a height makes it even more dangerous.
Therefore I am satisfied that the risk was an obvious one. It follows that the plaintiff's case on liability fails as against the first defendant, Eden Park.
I now turn to consider sections 5B and 5D of the Civil Liability Act in relation to the second defendant and if I am wrong in finding that the plaintiff's case fails against the first defendant on the basis that the risk of harm was obvious. I will also consider ss 5B and 5D, as against the first defendant.

[40]

Sections 5B, 5C and D of the Civil Liability Act

Sections 5B and 5C read: "5B General principles (1) A person is not negligent in failing to take precautions against a risk of harm unless: (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and (b) the risk was not insignificant, and (c) in the circumstances, a reasonable person in the person's position would have taken those precautions. (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things): (a) the probability that the harm would occur if care were not taken, (b) the likely seriousness of the harm, (c) the burden of taking precautions to avoid the risk of harm, (d) the social utility of the activity that creates the risk of harm." 5C Other principles In proceedings relating to liability for negligence - (a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and (b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and (c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk."
Causation is governed by s 5D of the Civil Liability Act. It reads: "5D General principles (1) A determination that negligence caused particular harm comprises the following elements - (a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and (b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (scope of liability). (2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party. (3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent - (a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and (b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest. (4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party."
To succeed, the plaintiff must show that it is more probable than not that, but for the breach, the "particular harm" which materialised would not have been suffered. This involves two elements: "factual causation" and "scope of liability": see Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem (2009) 239 CLR 420 at [42]; Wallace v Kam (2013) 297 ALR 383; [2013] HCA 19 ('Wallace') at [12].
Determination of factual causation under s 5D(1)(a) is a statutory restatement of the "but for" test of causation. That determination is "entirely factual, turning on proof by the plaintiff of relevant facts on the balance of probabilities in accordance with s 5E": Wallace v Kam at [14]. To prove that a change in circumstances might have made a difference does not alone prove factual causation: Adeels Palace at [50].
The determination of "scope of liability" involves a value judgment (Wallace v Kam), as does the determination of "factual causation": see Paul v Cooke (2013) 85 NSWLR 167; [2013] NSWCA 311 at [11].
The requirement under s 5D(1) for the plaintiff to demonstrate "factual causation" and "scope of liability" does not include the common law concepts of material contribution or increase in risk: see Woolworths Ltd v Strong [2010] NSWCA 282 ("Woolworths") at [47]-[48]. Rather, causation requires a determination that "the negligence was a necessary condition of the harm".
This is not an exceptional case so s 5D(2) does not apply.

[41]

Duty of care

It is common ground that both defendants owed the plaintiff a duty to exercise reasonable care. The first defendant is the occupier and the second is the plaintiff's employer.
An employer's duty of care is owed to each individual employee personally. An employer's duty of care is non-delegable. The term 'non-delegable' is apt to mislead. 'Non-delegable' does not mean that a person cannot delegate a duty, rather the true position is that a person cannot avoid liability by relying upon delegation, irrespective of how competent the delegate may be (Lepore v State of New South Wales (2001) 52 NSWLR 420, 426 [29]). The degree of care under the standard of reasonable care varies with the risk involved and the risk involved includes both the magnitude of the risk of an accident happening and the seriousness of the potential damage if an accident should occur (Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 13, 554).
If there is a real risk of an injury to an employee in the performance of a task in the workplace, the employer (Pak Farm) must take reasonable care to avoid the risk by devising a system for the performance of work that eliminates the risk, or by providing adequate safeguards: Smith v The Broken Hill Pty Co Ltd (1957) 97 CLR 337, 342 ('Smith'). In devising such a system or providing such safeguards, the employer must take into account the possibility of thoughtlessness, or inadvertence, inattention, misjudgment or carelessness, particularly in the case of repetitive work (McLean v Tedman [1984] HCA 60; 155 CLR 306, [8]-[10]; Smith; Da Costa v Cockburn Salvage & Trading Pty Ltd (1970) 124 CLR 192, 218 ('Da Costa'); Czatyrko v Edith Cowan University (2005) 79 ALJR 839; [2005] HCA 14 ('Czatyrko') [12]-[14].
Section 5B of the Civil Liability Act sets out the necessary, but not sufficient, pre-requisites for civil liability to arise. Although headed "duty of care", it is directed toward questions of breach of duty: see Adeels Palace.

[42]

The law

The inquiry in s 5B of the Civil Liability Act asks what a reasonable person would have done, looking forward from a point of time before the injury, rather than retrospectively at what could have been done to avoid the injury: see Wyong Shire Council v Shirt (1980) 146 CLR 40; [1980] HCA 12.
Here the plaintiff was a migrant worker of 46 years of age with limited English skills, in normal circumstances the expectation that the plaintiff would exercise reasonable care goes not merely to the assessment of breach of duty, but is "a specific element contained, as a matter of law, in the scope of the duty of care": see Roads and Traffic Authority v Dederer (2007) 234 CLR 330; [2004] HCA 42 ("Dederer") at [45] per Gummow J.
The effect of s 5C(b) of the Civil Liability Act is that determining whether reasonable care has been exercised cannot merely involve asking if different conduct could have produced a different outcome: Mobbs v Kain (2009) 54 MVR 179; [2009] NSWCA 301.
The test is always whether the plaintiff has proved that the defendants, who owe a duty of care, have not acted in accordance with reasonable care: see Derrick v Cheung (2001) 181 ALR 301; [2001] HCA 48. The fact that there were measures that could have been taken to avert or diminish the risk that materialised do not establish a breach of duty: see Thornton v Sweeney [2011] NSWCA 244.
A plaintiff must fail in an action for negligence framed in terms of a failure to take precautions, unless the plaintiff shows that a reasonable person in the defendant's position would have taken those precautions: see Patrick Stevedores Operations (No 2) Pty Ltd v Hennessy [2015] NSWCA 253 ('Hennessy') at [50].
The degree of instruction that is reasonably required will vary according to the special condition or requirement of the employee (Wheeler v London Rochester Trading Co Ltd [1957] Lloyd's Rep 69). Young people, trainees, the obviously inexperienced and migrants who are unfamiliar with the English language can rely on such matters to justify a special requirement of warning (Woods v Durable Suites [1953] 1 WLR 587, 863; Fahey v Commissioner for Railways [1968] WN (Pt 1) (NSW) 97, 100; Kerry v Carter [1969] WLR 1372; Hawkins v Ian Ross Castings Pty Ltd [1970] 1 All ER 180).
In order to succeed, the plaintiff must show that it is more probable than not that, but for the breach, the "particular harm" which materialised would not have been suffered. This involves two elements: "factual causation" and "scope of liability": see Adeels Palace at [42]; Wallace.
Determination of factual causation under s 5D(1)(a) is a statutory restatement of the "but for" test of causation. That determination is "entirely factual, turning on proof by the plaintiff of relevant facts on the balance of probabilities in accordance with s 5E": Wallace at [14]. To prove that a change in circumstances might have made a difference does not alone prove factual causation: Adeels Palace at [50].
The determination of "scope of liability" involves a value judgment (Wallace), as does the determination of "factual causation": see Paul v Cooke (2013) 85 NSWLR 167; [2013] NSWCA 311 at [11].
The requirement under s 5D(1) for the plaintiff to demonstrate "factual causation" and "scope of liability" does not include the common law concepts of material contribution or increase in risk: see Woolworths at [47]-[48]. Rather, causation requires a determination that "the negligence was a necessary condition of the harm".
This is not an exceptional case so s 5D(2) does not apply.

[43]

The plaintiff's submissions

A person conducting a business or undertaking at a workplace is required to manage, in accordance with Part 3.1 of the WHS Regs, risks to health and safety associated with a fall by a person from one level to another that is reasonably likely to cause injury to the person (WHS Regs, r 78(1)). So far as is reasonably practicable, the person conducting the business or undertaking must ensure that any work involving a risk of fall be conducted from the ground or on a solid construction (WHS Regs, r 78(3)). That obligation imports a requirement to warn.
Regulation 79 of the WHS Regs relevantly provides: "79 Specific requirements to minimise risk of fall This clause applies if it is not reasonably practicable for the person conducting a business or undertaking at a workplace to eliminate the risk of a fall to which clause 78 applies. The person must minimise the risk of a fall by providing adequate protection against the risk in accordance with this clause. The person provides adequate protection against the risk if the person provides and maintains a safe system of work, including by: (a) providing a fall prevention device if it is reasonably practicable to do so, or (b) if it is not reasonably practicable to provide a fall prevention device, providing a work positioning system, or (c) if it is not reasonably practicable to comply with either paragraph (a) or (b), providing a fall arrest system, so far as is reasonably practicable. Examples - 1 Providing temporary work platforms. 2 Providing training in relation to the risks involved in working at the workplace. 3 Providing safe work procedures, safe sequencing of work, safe use of ladders, permit systems and appropriate signs. A combination of the controls set out in this subclause may be used to minimise risks, so far as is practicable, if a single control is not sufficient for the purpose."
So far as the WHS Regulations are concerned it is my view that the common law position is not displaced by statutory duties. The WHS Act does not relevantly create - and the WHS Regs do not relevantly affect - any private right of action: see WHS Act ss 267(a), (c). Further, questions of breach of duty of care always turn on whether reasonable care was taken, not on whether a statute was breached: see Dederer at 345 [43] (Gummow J). Hence, I do not agree with the plaintiff's submissions on this point.

[44]

Scope of duty

The formulation of the relevant duty of care is clear in relation to occupiers such as Eden Park. As McColl JA stated in Pender at [48]: "[48] The respondent did not contend at trial, or on appeal, that the appellant owed him any duty of care higher than that of an ordinary occupier of land. That duty required the appellant to take reasonable care to avoid a foreseeable risk of injury to the respondent arising from the physical state of its land on the assumption that he used reasonable care for his safety: Australian Safeways Stores Pty Ltd v Zaluzna [1987] HCA 7; (1987) 162 CLR 479 (at 488) per Mason, Wilson, Deane and Dawson JJ; Roads and Traffic Authority of New South Wales v Dederer [2007] HCA 42; (2007) 234 CLR 330 (at [45]) per Gummow J."
As Leeming JA said in Hennessy at [53]: "[53] Finally, the scope of an occupier's duty is delimited by the expectation that users will exercise reasonable care for their own safety: see Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98 at [159] and Jackson v McDonald's Australia Ltd at [8]. As Gummow J observed in Roads and Traffic Authority of New South Wales v Dederer [2007] HCA 42; 234 CLR 330 at [45], the expectation that a potential plaintiff will exercise reasonable care in a case such as the present goes not merely to the assessment of breach, but is a "specific element contained, as a matter of law, in the scope of the ... duty of care"."
See also: Blakemore v Moore & Clements [2015] NSWDC 9, [103]; Council of the City of Sydney v Hunter [2014] NSWCA 449, [33].
As to the liability of the first and second defendants. The inquiry about whether a defendant ought to have taken the precautions for which the plaintiff mainly contends turns upon the foreseeability of the risk, whether that risk was not insignificant and whether in the circumstances, a reasonable person in the person's position would have taken those precautions. The inquiry is not to be undertaken in hindsight: Vairy, 461-462 [125]-[126] (Hayne J); it must be looked at prospectively, before the incident occurred: Adeels Palace at 438 [31].
The inquiry is not confined to what could have been done to eliminate, reduce or warn against the risk. While asking what could have been done will reveal what was practicable, it is necessary to ask also: would it have been reasonable for someone to take those measures? In other words, the knowledge of how the plaintiff actually came to sustain his injury has to be excluded when considering whether someone was obliged to take any precautions in the circumstances: see Neindorf v Junkovic (2005) 80 ALJR 341, 361 [93] (Hayne J). In short, a party does not breach its duty of care merely because there are steps that it could have taken to avert the risk that materialised.

[45]

Identifying the risk

As a starting point, the plaintiff is required to identify, and articulate clearly, the "risk of harm" in respect of which, it is alleged, a defendant was obliged to take precautions. It is only through the correct identification of the risk of harm that an assessment of the reasonable response can be made: Dederer, 351 [59]-[61] (Gummow J). The description should identify the "true source of potential injury": Dederer, 351 [60] (Gummow J). It is only if "the relevant risk is identified with sufficient precision" that one can "determine what, if any, reasonable precautions ought to have been taken in order to avert it": Perisher Blue Pty Ltd v Nair-Smith [2015] NSWCA 90, [98].
In Bridge v Coles Supermarkets Australia Pty Ltd (No 3) [2017] NSWSC 1800, Campbell J considered how a relevant risk of harm should be identified. He said at [44]: "[44] But correct identification of the risk is a question logically anterior to the assessment of breach. The risk which requires identification is the risk which materialised. Clearly that can only be identified with knowledge after the event. I am of the view, as I said in Vincent v Woolworths Limited [2015] NSWSC 435; [2015] Aust. Torts Reports 82 - 215, that the anterior question of risk identification can only be undertaken with the benefit of hindsight. If the focus is on identification of "the true source of potential injury" (Dederer at [60]) this cannot be done without knowing what happened to the plaintiff: Vincent at [26] - [27]. I said at [27]: 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 pp 351-355, 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]) "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: (citations omitted.)"
See also Avopiling Pty Ltd v Bosevski (2018) 98 NSWLR 171 ('Avopiling'), 180 [43].

[46]

The plaintiff's submissions

Where a task is capable of being carried out in more than one way, it is the employer's responsibility, so far as is reasonably practicable: to identify the risks potentially associated with each way; and, guard against those risks by implementing systems calculated to constrain the employee to carry out the task in the safest way (Deal v Father Pius Kodakkathanath [2016] HCA 31; (2016) 258 CLR 281, [53]). As such, within the requirement of instruction and training is the requirement to warn.
It is common ground that the plaintiff was not present when Mr Roweth, director of Eden Park to steps to train Pak Farm's workers. The scope and content of the duty of care should not be contentious: 1. Eden Park had expertise in apple tree pruning and had no reasonable basis to understand Pak Farm had any such expertise. 2. Mr Roweth took steps to train Pak Farm's workers on the most elementary of matters relating to apple tree pruning, including Mr Roweth instructed Pak Farm's workers on such elementary matters as the type of branches they should cut, what those branches are called, where to make the pruning cuts, and how close to the trunk of the tree the pruning cuts need to be made (1 CB 113, [31]). 3. Eden Park proscribed the work to be performed. Mr Roweth engaged in training and had no reasonable expectation Pak Farm engaged in any training. 4. Eden Park directed Pak Farm to supply its workers with their own lopping tools and knew that Pak Farm's workers would be using two-handed, manually operated tree lopping tools (1 CB 112, [19]; 1 CB 113, [26]). 5. The activity was for Eden Park's benefit and profit. 6. Eden Park did not train the plaintiff. 7. Eden Park provided the ladders to Pak Farm's employees so that they could reach the higher parts of the apple trees for an activity, which it knew required the use of two hands at height giving rise to a risk of harm (1 CB 111, [13]). Mr Roweth demonstrated to Pak Farm's workers where they could find the orchard ladders for that purpose (1 CB 114, [35]). 8. Pak Farm, the second defendant, did not train the plaintiff. 9. Pak Farm employed the plaintiff and had a non-delegable duty of care meaning it could not delegate its responsibility to Eden Park. 10. Pak Farm supplied the pruning shears knowing they would be used in conjunction with the ladder which gave rise to a risk of injury. 11. Neither defendant had instituted a safe system of work. 12. Both defendants were utilising migrant workers who were in no position of power or influence over the nature or system of work (see: Caltex Oil Refineries (Qld) Pty Ltd v Stavar [2009] NSWCA 258 at [101]-[108]).
There was no expectation that any of the workers had ever worked on ladders before or had been trained in the use of ladders, or were aware of the need to use three points of contact. Further, the repeated promulgation and review of safety protocols in the supply use of ladders generally and the use of bow ladders in horticulture (see footnote 1 at 1 CB 335) demonstrate that there is no reasonable expectation that workers are aware of the safety issues that pertain to the use of ladders generally (see for example 1 CB 287, 288, 1CB 317-322, 1CB 315, 1CB 312) or in the rural environment - see Williams T259.11--.45.
Further, Eden Park was the provider of equipment for the performance of work upon which it was the occupier. In the provision of equipment, it was required to take steps to instruct or train those who were to deploy it in the performance of their work. The instruction could be given verbally, or by sign or pictogram on the ladder (1 CB 148) and Patrick and Williams at T 229.05-37 and T227-228) or a painted mark to identify the "no-go'' zone on a ladder (1 CB 148 as set out in the SafeWork SA website).
Eden Park instituted a system of remuneration for piece work, which brings about its own risks of shortcuts being taken that exposes the workers to risks of injury.
Pak Farm provided equipment to the workers that was to be used in conjunction with a ladder. There was a statutory obligation to train and instruct. That instruction would likely be provided verbally.
The plaintiff should not have been directed or permitted to use two-handed shears on a ladder, or alternatively should have been instructed to maintain three points of contact with the ladder at all times. There were alternatives, including pole shears and single-handed implements which would have removed the risks and the need to use two-handed implements on ladders.
He should have also been inducted and instructed in relation to how far to climb. The experts agreed on this at T 228.46-14. This could have been conveyed through pictures diagrams or pictograms (T 229).
The system of work that was permitted or promulgated by Eden Park was deficient, in that the workers were directed or permitted to use two-handed implements on ladders, and that workers were permitted to work without having received training or instruction in the safety aspects of the task such as maintaining three points of contact (accepting that bracing with the knee is a third point of contact, (1 CB 147) which could not be achieved once the worker had ascended beyond the higher rungs of the ladder. The issue of training and instruction imports a requirement to warn the worker of risks associated with the performance of the task by ascending too high.
Questions of breach and causation (and thus liability) then fall to be determined in accordance with ss 5B to 5C of the CLA, as well as general common law principles. Applying those provisions and principles. Eden Park would be liable, were the plaintiff's claim not have failed have failed due to s 5H of the CLA.

[47]

First defendant's submissions on ss 5B and 5C CLA

Whether Eden Park breached its duty of care turns on ss 5B and 5C of the CLA.
The scope of the duty of care owed by Eden Park is also informed by the contract it entered into with Pak Farm: see Bevillesta Pty Ltd v Liberty International Insurance Co [2009] NSWCA 16. That contract imposed no obligation on Eden Park to employ, supervise or train the plaintiff.
In the present case, the risk of injury is not simply "falling from a ladder", because the fall also crucially involved the top two steps, and - on two of the three versions of events - the branch. The risk of injury is therefore the risk of a worker at the site falling from a ladder while standing on the top two steps, or a branch.
It must be proved that a breach of duty of care caused the accident. The following matters do not support that finding: 1. The plaintiff never explained why he climbed to the top of the ladder, and/or put his foot on a branch. These were, on the face of them, foolish things to do. This means he was probably also foolish enough to disregard any safety instructions that might have been given to him. He cannot, therefore, establish that he would have acted differently if he had been told not to stand at the top of a ladder or not to put his foot on a branch. 2. The plaintiff was not present when Mr Roweth demonstrated how to prune the trees, and Pak Farm employed him without Eden Park's knowledge. Any safety instructions were a matter for Pak Farm; but, even if that were not so, the plaintiff has not proved that any safety instructions given by Eden Park (as part of Mr Roweth's demonstration) would have been passed on to him by Pak Farm, or that he would have understood and followed them (bearing in mind the myriad pictograms and photos that should allegedly have been provided to him). 3. Prior to his fall, the plaintiff pruned 444 trees without incident. There is no evidence that, in that time, he ever stepped on a branch or stood on the top rungs of a ladder. To the contrary, the plaintiff would sometimes see two Pak Farm supervisors - Mr Musavi and a Malaysian man - walking around the trees looking at the work being done, as well as 3 or 4 others, whom the plaintiff "thought were the owners or bosses", who at times observed the work done (most likely to count the number of trees properly pruned). It is likely the Pak Farm supervisors, or the others, would have picked up any obviously unsafe practice, such as putting one foot on the top of the ladder and one foot on a branch, if they had noticed it. In those circumstances (and since it plainly cannot be suggested that the plaintiff needed constant supervision when pruning), the accident cannot be attributed to a lack of supervision. 4. The plaintiff was Pak Farm's employee, not Eden Park's. Eden Park did not train or induct him, because he was employed without its knowledge. Nor did Eden Park supervise the manner in which the Pak Farm workers did the work. It only checked their progress (the number of trees correctly pruned), because the basis of payment was per tree. In those circumstances, the safety of the plaintiff and his system of work was entirely a matter for Pak Farm. Scope of liability, under s 5D(1)(b) of the CLA, is not engaged.
First, each of the three versions of events given by the plaintiff - a fall from the top two steps, a fall from the top step with a foot on a branch, and a fall from the first step with a foot on a branch - involves him not taking reasonable care for his own safety. In other words, the only way a fall could relevantly eventuate is by the plaintiff failing to take reasonable care for his own safety. That risk is therefore outside any duty of care owed by Eden Park as an occupier because the scope of that duty of care is delimited by the assumption that entrants to the site, such as Pak Farm workers, will take reasonable care for their own safety. The first defendant therefore submitted that the Court should, find in the circumstances, that Eden Park owed no relevant duty of care to the plaintiff.
Secondly, for the purposes of ss 5B(1)(a) and (b) of the CLA, the risk of a worker falling from a ladder was unforeseeable and insignificant: 1. In 2013, 2014 and 2015, Eden Park supplied ladders to workers to pick fruit from 80,000 apple trees and 18,000 cherry trees - a total of 294,000 times. There were no known falls during that or any other time before the plaintiff's accident. The risk of this fall was therefore minimal. 2. While the plaintiff was not a "skilled workman" - pruning is not skilled work - he was "experienced in this type of repetitive work": Van Der Sluice at [72]. Before his accident, he pruned 444 trees at the site, using ladders when required, without any problems. It is unclear how many trees needed a ladder to prune, as most of them did not. However, even if as few as 10% of them did, that still meant the plaintiff had used ladders to prune dozens of trees. Given that experience, Eden Park "could not reasonably foresee that he would fall, because [it] was entitled to assume that he would identify any risk of falling and take measures to prevent that risk from arising if he did": see Van Der Sluice also at [72]. 3. Regardless of the plaintiff's experience, "[a]ll citizens can safely and reasonably assume that each normal adult human being acting autonomously and voluntarily will not incur unnecessary and blatantly obvious risks" - including "[t]he fact that the higher up a ladder one moves the more care one must take for one's own safety": Van Der Sluice, [74]. The risk of falling after climbing to the top of a ladder was a blatantly obvious risk. Further, the tree branches at the site were no more than about 5 cm thick, and were easily bent even by light forces. The risk created by stepping on such a branch (with or without the other foot on a ladder) is also blatantly obvious, and increases with height.
Thirdly - and turning to questions of reasonable precautions under s 5B(2) of the CLA - the 1.8 and 2.1 metre tripod ladders Eden Park supplied were suitable. They were purpose-built, industry-standard orchard ladders. They allow the user to place the single leg between tree branches to get closer to areas that need attention. This makes them plainly suitable for pruning work. Stickers or pictograms on the ladders were not required under the relevant Australian Standard. Any suggestion that the ladders were too short - and that the plaintiff needed to stand on the top or second top rung to prune trees - is incorrect. Given the trunk and main branches were kept to a height of about 2.5 metres (measured at 2.1 to 2.6 metres), the plaintiff only had to reach that height to make cuts near the trunk - which he could easily do so by positioning the ladder and standing on the first, or at most second, step.
The tree loppers - which, in any event, were supplied by Pak Farm, not Eden Park - were also adequate. The plaintiff's liability expert made a late suggestion, in the conclave, that using two-handed loppers on a ladder is unsafe because the user cannot maintain three points of contact with the ladder. However: 1. The liability experts later agreed that the wide base of the tripod ladders allows a person to lean into the ladder and use another part of their body - such as their thigh or hips - as a third point of contact while using two-handed loppers. 2. Maintaining three points of contact is often impractical if that is limited to hands and feet. "Every man who picks fruit or prunes a tree from a ladder must so work [ie, with both hands off the ladder]. So must a plumber erecting guttering from a ladder or a decorator using a ladder to paste wallpaper upon a wall. Examples can be multiplied. It would, I think, be quite contrary to common usage to describe it as dangerous merely to work from a ladder with both hands off the ladder": Duyvelshaff v Cathcart & Ritchie Ltd (1973) 47 ALJR 410, 412 (Menzies J). Other examples include installing a TV monitor or fixing a CCTV camera. 3. Battery-powered loppers, which could be operated with one hand, were not widely used in 2016.
In short, the plaintiff was given ladders and loppers, and that equipment was perfectly adequate for the pruning task Pak Farm gave him.
Fourthly, Pak Farm was an apparently competent contractor. By agreeing to do the pruning work, Pak Farm held itself out as competent to do that work. Further, pruning requires no special skill, Mr Musavi and his workers had done pruning work at the premises before, and Pak Farm had workers compensation insurance. Having engaged an apparently competent contractor, Eden Park had no "ongoing general law obligation with respect to the safety of the work methods employed by the contractor": Leighton Contractors Pty Limited v Fox (2009) 240 CLR 1, 25 [59]. That is, a reasonable person engaging Pak Farm would not have sought to control or monitor its work methods. In addition: 1. The "Contractors Agreement" provided that Pak Farm remained the workers' employer, and that Eden Park would not be liable for any claims. Those clauses, whether or not they were legally effective, reinforced the common law position that Eden Park was not responsible for Pak Farm's work methods. 2. The "Contractors Agreement" contemplated the use of immigrant workers, because Pak Farm warranted that its workers had a "valid working Visa to work in Australia." To Mr Roweth's observation, Pak Farm's workers did not appear to speak fluent English, and Mr Musavi spoke to them in a different language. Given those facts, it was plainly the responsibility of Pak Farm to ascertain what languages the workers spoke - they were, after all, its own employees - and to provide any necessary instruction in a manner and language they understood.
For these reasons, the plaintiff's case against Eden Park must fail. If that is correct, the second defendant's claim for indemnity against Eden Park under s 151Z(1)(d) of the WCA would fail.

[48]

The second defendant's submissions

The plaintiff conceded that he was told and shown what to do. That was how to prune the tree properly with the loppers that were supplied, and also how to put up and use the ladder if necessary to reach the branches of the trees.
The plaintiff worked two full days and the beginning of the third day and completed pruning 444 trees.
In his evidence, the plaintiff conceded that there was ongoing supervision by Mr Musavi and the worker and by three to four people he assumed were the "owners or bosses" from Eden Fruits. Scott Roweth also confirmed seeing Mr Musavi only supervising the workers, not doing any work himself.
The evidence of Scott Roweth, and of the expert Mr Williams, also establishes that the tree trunks and branches were kept to a height no greater than 2.5 metres. Given the nature of the work, pruning the "water shoots", no cut needed to be performed above that height.
The plaintiff conceded, and the evidence again of Mr Roweth and both liability experts establishes that virtually all the pruning could be done from the ground given the plaintiff's height, with extended arms, and the length of the loppers and the nature of the work being performed.
The plaintiff also conceded that he had been given instructions and did prune the lower branches first and would work his way up. On the evidence there was simply no need to ever go beyond the second rung, and at worst the third rung, of the ladder.
There was certainly no need to ever go to the top or the second top step of the ladder which was 2.1 metres high. Given the plaintiff's height, that would mean he had his head more than 1.3 metres higher than the highest point at which he had to make any cut.
If the plaintiff had gone that far up a ladder over the previous two days, it is reasonable to assume that he would have been "pulled-up" by one of the many people supervising the work.
But the plaintiff did not suggest that he had ever previously gone up the ladder to anywhere near that height. He also did not say in his evidence that he had seen any of the other workers doing that.
The ladders supplied by Eden Fruits were specifically designed for this purpose and, on the evidence of Mr Roweth and Mr Williams, were used industry-wide involving many thousands of similar uses every year. The same applied to the tree loppers which were of a length and design to facilitate doing the great majority of this work from ground level, which is precisely what occurred.
There is no evidence of any fault on the part of either defendant in the use of either the ladders or the loppers. Both items minimised the amount of work by providing simple access to all areas of the trees that had to be pruned, minimising the amount of climbing required and making any climbing that was required as easy as possible.
On the evidence: 1. The plaintiff had been shown how to use the loppers and the ladder and how to do the work; 2. He was working alongside other workers who had also been shown how to do the work and were presumably doing it in the same way; 3. He pruned 444 trees under supervision of up to six people without any need to correct his technique; 4. Most trees did not require any use of a ladder; 5. He had not had to climb more than two or three rungs on the ladder prior to this occasion; 6. He had not stepped onto a branch prior to this occasion; 7. There was simply no need to climb higher given the nature of the equipment but particularly the deliberately contained height of the trunks and branches to no greater than 2.5 metres; 8. It was obviously unnecessary and dangerous to stand on the top or second top step of the ladder and/or to put a foot on a branch of the trees.
The plaintiff's evidence about having put his foot on a branch was not mentioned anywhere in his evidentiary statement. Neither expert could understand why the plaintiff or anyone else would do that, because it was unnecessary and because the branches would obviously not be capable of holding his weight.
It is clear from the plaintiff's evidence, both in his evidentiary statement and in his oral evidence and when giving histories, that he has no real idea of what happened. Consequently, the court is in a position where it is not possible to make any factual finding as to precisely what it was that caused the plaintiff to fall. It is feasible that he simply slipped or mis-stepped. It is not uncommon for people to slip from the rungs of a ladder, in the same way that they slip or trip on steps or while walking across ostensibly flat ground.
The court would not accept the plaintiff's version of what occurred given: 1. The inconsistencies between the plaintiff's evidentiary statement and his oral evidence; 2. His concessions of having no clear recollection of what in fact did occur; 3. That on all the evidence it is simply unnecessary ever to have had to climb to the top or second top step of the ladder (which would be almost standing at the height of the trunk and highest branches); 4. It was unnecessary and obviously unsafe to attempt to step onto one of the branches of a tree.
If the court did accept the plaintiff's version, that he did climb to the top or second top step of the ladder and/or stepped onto the branch of a tree, the court would find: 1. That was not something he had done previously given 1. he did not give evidence that he had done it before this; 2. he did not suggest that he had seen any other worker do it; 3. it was entirely unnecessary given the height of the trees, the height of the ladders and the length of the loppers; 4. it would have been observed and corrected given the continuing supervision for over two days; and 1. That it was so obviously unnecessary and dangerous that it was not reasonably foreseeable, and otherwise was so remote a risk, that the defendants were not required to give a specific instruction that it was something they should not do (it is in the same category as warnings about pots on stoves, broken glass and slippery rocks on the seashore).
In the circumstances, even if accepting the plaintiff's version, the court would find no breach of duty by Pak Farm.

[49]

Resolution

I accept that if an employee is inexperienced, the employer must take that fact into account when considering whether there is inherent in the operation a risk of injury (Cockatoo Docks & Engineering Co Pty Ltd v Monteforte [1964] NSWR 1215, 1219; Da Costa, 218; Cribb v Kynock Ltd [1907] 2 KB 548).
As to s 5B(1)(a) - was the risk foreseeable (that is a risk of which the plaintiff knew or ought to have known), the plaintiff conceded that had been shown how to use the loppers and the ladder and how to do the work, he was working alongside other workers who had also been shown how to do the work and were presumably doing it in the same way, he pruned 444 trees under supervision without any need to correct his technique, most trees did not require any use of a ladder, he had not had to climb more than two or three rungs on the ladder prior to this occasion, he had not stepped onto a branch prior to this occasion, there was simply no need to climb higher given the nature of the equipment but particularly the deliberately contained height of the trunks and branches to no greater than 2.5 metres, it was obviously unnecessary and dangerous to stand on the top or second top step of the ladder and/or to put a foot on a branch of the trees.
Neither expert could understand why the plaintiff or anyone else would do that, because it was unnecessary and because the branches would obviously not be capable of holding his weight.
I accept the second defendant's submission that it is not possible to make any factual finding as to precisely what it was that caused the plaintiff to fall and that it is feasible that he simply slipped or mis-stepped.
However, on all the evidence it is simply unnecessary ever to have had to climb to the top or second top step of the ladder (which would be almost standing at the height of the trunk and highest branches). It was unnecessary and obviously unsafe to attempt to step onto one of the branches of a tree. In relation to s 5B(1)(b), I accept that if a person climbed onto the top step or second top step, (although here there was no reason to do so) the risk of injury was not insignificant.
Referring to s 5B(1)(c), I refer to my reasons in my resolution in relation to obvious risk and particularly to what was said in Van Der Sluice. In the circumstances, a reasonable person in the plaintiff's position would have taken the precaution, in not going further than the second step of the ladder. Mr Roweth and Mr Williams opinions were that to go up further steps of the ladder were unnecessary and certainly would not put one foot on the top step or second top step thereto ladder and the other foot on a branch of the apple tree.
So far as referring to the provisions in s 5B(2) are concerned. Section 5B(2)(a) and the probability that harm would occur, if care was not taken, it is probable that if a person climbed to the second or top step of the ladder and put one foot onto a branch of the apple tree holding the tree loppers, the probability of harm is reasonably certain.
Turning to s 5B(2)(c), the burden of taking precautions to avoid the harm, for reasons set out earlier, the use of electric powered loppers (not used at the time of the accident. The Hydralada machine used in cherry picking that the experts agree was not suitable for trimming water shoots on apple trees, as opposed to the tripod, so this precaution was not one that could be used as warning signs of height and finally a four pronged ladder with a flat rung, three pronged would mean that the ladder would be unstable as one could not get as close to the tree trunk and the flat rungs are more hazardous in wet conditions as the mud could build up on the soles of footwear and create a slip hazard. A warning sticker is not a requirement for a tripod ladder (opinion of Mr Williams).
As to training and induction, the occupier, Eden Park did provide an induction process, but it was thwarted as Pak Farm brought the plaintiff onto the site several days after the induction was conducted without the knowledge of Eden Park. From the plaintiff's own evidence, the plaintiff's induction by Pak Farm is that the worker employed by Pak Farm "showed him what he had to do at the property", how to prune apple trees with a tree lopping tool by showing him how he (the worker) pruned the water shoots on a tree. He was fold that if there were parts of the tree he could not reach, he should use a ladder and also shown how to put up the ladder, so he could reach the tree branches. He was shown the lane between the trees that he had to go up and down when pruning them. He was shown the storeroom where the ladders were kept, he was provided with a tree lopping tool by his employer, Pak Farm. As previously discussed, it is common ground that the ladders were provided by Eden Park and the tree loppers were provided by Pak Park to the plaintiff. He was aware that a supervisor, Mr Musavi and the worker, from Pak Farm were walking around the trees looking at the work that was being done.
As set out earlier in Van Der Sluice, as the plaintiff's moved higher up the ladder one moves, one must take care for one's own safety. The plaintiff did not take care how his own safety.
I agree the plaintiff is not able to explain how he actually came to fall from the ladder. The plaintiff gave three inconsistent versions as to how the fall from the ladder occurred. The plaintiff settled on his last version, that is he climbed to the first or second top ring of the ladder and placed one foot on a branch of the apple tree in order to prune watershoots. Mr Roweth and the expert evidence experts agree that there was no reason for him to have done so. It does not follow that Pak Farm has breached this duty. Even though the plaintiff had a limited grasp of English, he was employed and supervised by Pak Farm. A reasonable employer in the defendant's position would likely not have foreseen that the plaintiff would have taken the risks he did. Pursuant to ss 5B(1)(a) and (b) of the CLA, the risk of a worker falling, where he elected to place one foot on the top or the second top rung was negligible.
I have already stated that so far as s 5B(2)(d) is concerned, there is no social utility of the activity that creates the risk of harm.
Taking the general principles of s 5B of the CLA into account, as set out above, it is my view that there have been no breaches of care by either defendant. The result is that the plaintiff's claim in relation to s 5B fails.
If I am wrong, on the issues of obvious risk and breach of duty of care, I shall conclude on the plaintiff's post-accident life, the medical opinions and the assessment of damages.
The plaintiff could easily have prevented the accident by not going higher than he needed to, and by not putting one foot on a branch. This was "a practicable, quick, cheap and easy technique" that would have "enabled the work to have been done safely". His failure to do so "did not merely constitute contributory negligence", but rather "defeat[s] any contention that the defendant was in actionable breach of its duty of care, if it owed one" - for "the plaintiff should not have needed to be told about the risks of the course that he undertook". He "was the author of his own misfortune": Kolodziejczyk v Grandview Pty Ltd [2002] NSWCA 267, [45]-[48] (Heydon JA; Ipp AJA agreeing) ('Grandview'). The "easy technique" in Grandview was tying a two-legged ladder in place at the top and bottom to secure it. Not putting one's foot on a branch, and not going higher than necessary, are even easier.

[50]

The plaintiff's submissions

The issue of reliability does not import any obligation to have a greater satisfaction about the cogency of the evidence because of the seriousness of the allegation which is tantamount to fraud.
That the plaintiff is a hopeless and inaccurate historian does not mean he did not suffer injury and serious sequelae from the accident. That the sequelae are part physical and part psychiatric or psychological does not render them as insignificant - he can be disabled by minor injury continued with a prevailing and dominating psychiatric condition.
The evidence of a prevailing psychiatric condition since the accident is well established on the treating records. They establish improvement in function when he is engaged in active psychological and physical programs to assist him to understand his pain and to reduce pain avoidant behaviours.
The physical manifestations of pain avoidants include the placing of his hand in his pocket and holding it against his torso or "cradling of his arm". Observations of this behaviour commenced shortly after the back slab was removed. (See Appendix 3 - Pain Avoidant Behaviours).
It is a feature of this case, the plaintiff has described his arm as being "useless" or otherwise incapable of function. For instance, he has said to Prof. Fitzsimons he is unable to dress and undress and then demonstrated his capacity and then to facilitate a physical examination, he has then proceeded to don and doff his clothes. The defendants will say this demonstrates an attempt to deceive. If so, this is an issue of credit, that being honesty. The plaintiff submitted this does not relate to honesty but reliability. If he was intending to actively mislead, he would refuse to get undressed and bring his wife to assist him to undress or take other steps to demonstrate the veracity of his assertion he cannot dress without assistance. As such, there is an alternate explanation, which demonstrates this exchange is a feature of his outlook and his catastrophising as well as his use of language (see Dr Dinnen T 402.32-402.49; See also Dr Harvey 4 CB 1291 and 1292).
So far as the suggestions about the arm being "useless" and being unable to dress without assistance, the likelihood is this is a feature of his psychiatric condition and his personality traits as described by Dr Dinnen.
So too with the tremor. The tremor can be seen emerge as soon as the cast was taken off. The early treating doctors (including Prof Hawke and Dr Hughes) thought the tremor was associated with pain and was not a matter of any consequence. The tremor persisted and became entrenched. It is fair to say that when looking at the clinical records, the tremor was noted on every medical examination. In other words, the tremor has existed since the accident the removal of the cast and always has been.
However, the clinical examinations are somewhat inconsistent as to the persistence of the tremor. With some of the examinations, the tremor increased when was sought to be touched (Ms Dinley). On other occasions when he was relaxed, the tremor would abate in intensity or even reduced to zero (see Prof Cousins report 2 CB 649 at p 651.2). In other words, his tremor abated with distraction: "Neurological examination from the moment I asked the patient to disrobe for the examination he began to have rather exaggerated tremor. This began during all of the examination of the right upper limb, but when his attention was distracted by listening to the interpreter or other distractions, then the tremor markedly reduced and at times zero. Also, when I was writing up my findings, the patient was sitting down his arm below the level of the table, and I could see quite readily the tremor was gone."
This was a consistent feature that was revealed on a number of examinations (Prof. Fitzsimons 3 February 2020 at 3 CB 1251) "He held his right arm, with his elbow flexed, across his body during history taking. Throughout this time, I noticed a coarse right upper limb tremor, particularly obviously affecting his hand and elbow, of varying amplitudes. However, I noticed that when he was undressing, using his left arm, that his tremor ceased for a while. It also ceased a little later in the examination, when I was going over some details of the history, and he held his right arm cradled in the left arm, when it ceased for about 10 minutes."
In his is report of 26 October 2016, Dr Hughes considered the tremor observed was a severe form of cogwheeling of a kind seen in people who guard in a severe manner and try to limit the movement in terms of pain avoidance. In this respect, regard should be had to the opinion of Dr Hughes in his report but also the observations of Prof. Fitzsimons at the third last paragraph of 3 CB 1255.
Surveillance footage was shown to the defendants' doctors and reports were provided to the plaintiff by Eden Park. The use of the surveillance footage and supplementary doctors' reports was not disclosed to the Court or the plaintiff and was not the subject of Court order. The first tranche was of the surveillance footage disclosed in July 2022. The second tranche of surveillance footage was not disclosed until the plaintiff was undergoing cross-examination.
Most of the defendants' doctors viewed the footage, and others read the summary of the report provided by the surveillance company. Some of their opinions about the plaintiff and his reliability changed after viewing the surveillance.
As to s 5D of the Civil Liability Act on causation, I have already decided that the defendants were not negligent and it follows that the responsibility of harm should not be imposed on the "negligent parties". In these circumstances, the plaintiff's case fails in relation to s 5D of the CLA.
I accept that possibly the plaintiff's fall from the ladder caused him to suffer a dislocation of the right elbow and a non-displaced fracture of the right radial head that normally would have been expected to resolve within 3 to 6 months. These injuries are agreed the medical experts. As to whether the plaintiff has Complex Regional Pain Syndrome ('CRPS') and the cause of what he claims is a major tremor in his right hand as a result of the accident is more problematic.

[51]

Contributory negligence

Both defendants allege contributory negligence as against the plaintiff.
Section 55 of the Civil Liability Act 2005 (NSW) reads: "55 Contributory negligence can defeat claim In determining the extent of a reduction in damages by reason of contributory negligence, a court may determine a reduction of 100% if the court thinks it just and equitable to do so, with the result that the claim for damages is defeated."
Sections 5R and 5S read: "5R Standard of contributory negligence (1) The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm. (2) For that purpose: (a) the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and (b) the matter is to be determined on the basis of what that person knew or ought to have known at the time. 5S Contributory negligence can defeat claim In determining the extent of a reduction in damages by reason of contributory negligence, a court may determine a reduction of 100% if the court thinks it just and equitable to do so, with the result that the claim for damages is defeated."
The case of Woolworths concerned a challenge on a finding of no contributory negligence. In that case, and not on the topic, which was subject to appeal to the High Court, Campbell JA (with Handley AJA, Harrison J agreeing) stated at [38]: "[38] It is possible for a pedestrian in a shopping mall to take reasonable care for their own safety while still paying attention to the goods on display and the other people that are around that person. By contrast, a cleaner whose task it is to look for and clean up spillages, or any other person whose specific responsibility was to look for spillages, would not reasonably be expected to have the sort of divided attention that a shopper often has."
In Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529 ('Podrebersek'), the High Court determined at 532-533 that with regards to contributory negligence, the just and equitable apportionment of the liability ought to be examined as follows: "The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, ie of the degree of departure from the standard of care of the reasonable man (Pennington v Norris (1956) 96 CLR 10 at 16) and of the relative importance of the acts of the parties in causing the damage; Stapley v Gypsum Mines Ltd [1953] AC 663 at 682; Smith v McIntyre [1958] Tas SR 36 at 42-49 and Broadhurst v Miliman [1976] VR 208 at 219, and cases there cited. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case; for example, the circumstances of some cases may be such that a comparison of the relative importance of the acts of the parties in causing the damage will be of little, if 3ny, importance."
The question is whether, in the circumstances giving rise to the accident, the plaintiff failed to exercise reasonable care for his own safety: T and X Company Pty Ltd v Chivas [2014] NSWCA 235, [4]. This involves an objective test based on the facts and circumstances of the case, including what the plaintiff knew or ought to have known at the time: CLA s 5R(2)(b); Joslyn v Berryman (2003) 214 CLR 552, 558-559 [16] (McHugh J); Origin Energy LPG Pty Ltd v Bestcare Foods Ltd [2012] NSWCA 407, [217].
Eden Park's particulars of contributory negligence are as follows: The plaintiff use of the higher rungs of the ladder when it was unnecessary in the circumstances, failing to take account of his surroundings, failing to seek assistance, being inadvertent, failing to take any, or proper, precautions for his safety, and failing to conduct himself in such a way so as to not expose himself to unnecessary risk.
Pak Farm's particulars of contributory negligence are as follows: The plaintiff failing to take sufficient care for his own safety, failing to undertake work tasks with care, failing to undertake work tasks in an appropriate manner, and using inappropriately equipment (I take this to mean using equipment inappropriately) and failing to follow instructions.

[54]

Contribution

The defendants seek contribution from each other under s 5 of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW). In undertaking an apportionment of liability under s 5, the court evaluates the relative blameworthiness and relevant causal potency of the negligence of each party: Podrebersek, 494; Sullivan v Macquarie Pathology Services Pty Limited (1995) ATPR 46-143; Wynbergen v Hoyts Corporation Limited (1997) 72 ALJR 65; James Hardie & Co Pty Limited v Roberts (1999) 47 NSWLR 425. Findings of this kind are preconditions to the apportionment exercise: Amaca Pty Limited v State of NSW (2003) 77 ALJR 1509, [20].
If Eden Park and Pak Farm are both liable, Pak Farm's duties as an employer mean that its blameworthiness and causal potency were vastly greater. In Czatyrko, 842-843, the High Court confirmed (citations omitted): "An employer owes a non-delegable duty of care to its employees to take reasonable care to avoid exposing them to unnecessary risk 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 the case of repetitive work"
Further, "[t]he employer's obligation is not merely to provide a safe system of work; it is an obligation to establish, maintain and enforce such a system": McLean v Tedman (1984) 155 CLR 306, 313. Here, it was Pak Farm who told the plaintiff what to do and how to do it. Eden Park had no contact with the plaintiff, and no opportunity to train or instruct him because he was employed without its knowledge. Any defect in the plaintiff's training or instruction, or in Pak Farm's system of work, was overwhelmingly - if not exclusively - a matter for Pak Farm as the employer.

[56]

The plaintiff's evidence

The plaintiff consulted many doctors for treatment and for medico-legal opinions. The plaintiff says that he tried to do his best when the interpreter had asked him to move his arm and answer their questions. From what he could see, some of the doctors asked different questions of him through the interpreter. As stated above, the interpreters spoke either Hazaragi, Dari or Farsi/Persian. Sometimes the questions did not quite make sense to the plaintiff and he would have to check with the interpreter to work out what was being asked. Some of the English words he understood, and he understood movements by the doctors to demonstrate what they wanted. Sometimes it would still not be very clear to him what was wanted. These consultations with the doctors took a long time. On occasion, the interpreter or the doctor asked him how high he could lift his hand up or how low he could make his hand go. He would show the doctors how high or low he could use his arm without causing pain.
Sometimes, the doctors, through the interpreter or through motioning, would ask him to move his arm in different directions and bend it in different ways. He generally would try to keep moving his arm as far as he could for the doctors even after he started to feel pain. Some of the doctors would ask him to tell them when he started to feel pain in his arm, and when he told the doctors they would tell him to stop moving his arm.
When the plaintiff reached the hospital, he was still in very bad pain. He recalled that it was the worst pain he had ever experienced. He was very upset. The doctors gave him some pain medication, that did not help. The doctors then gave him an injection to block the nerve to his right arm, which helped to stop the pain.
He had a number of scans while he was in hospital. The doctors told him that he had an undisplaced fracture and dislocation of his right humerus. The doctors put his elbow back into place when he was in the Emergency Department. On 23 January 2016, he was discharged from hospital.
After leaving hospital, the plaintiff says that his right arm was still in a lot of pain. He had some pins and needles and lost some feeling in the arm. He also noticed that his right arm felt weak, and he couldn't use it like he did before.
He went to the fracture clinic at the hospital. His cast was removed and he was told that he should keep his right arm in a sling. About 3 or 4 weeks after the accident, he says that noticed that his right hand started to shake by itself. He says that it continues to shake today.
In late February 2016, he went to his local GP in Orange, NSW. He was referred to a specialist and physiotherapist.
Since his accident, the plaintiff has seen many specialists who have treated his injuries. He has seen surgeons, GPs, elbow specialists and pain specialists. He has also attended the pain clinic at Royal North Shore Hospital ('RNSH'). He says that even though he has tried to get better, he is constantly in a lot of pain, his arm still shakes and is very weak. The pain and the fact that he has been unable to use his right arm properly has made him very depressed. He says he also gets tired easily when he tries to do anything physical or when he goes to meet friends. He says that he has difficulty driving. He drives an automatic car. He says that he mostly uses his left hand to hold the steering wheel (this is not borne out with the surveillance).
The plaintiff says that he has not been able to work since his accident. He says that he has also not been able to do a lot of things around his home. His wife and children have had to help him a lot with cooking, cleaning and other household chores. He finds it difficult to get dressed because he is not able to move his right arm properly and it is very painful and weak. His wife helps him get dressed every day. The plaintiff's friend, Mr Qamberi helps him a lot as he speaks Hazaragi and takes him to doctors' appointments. Mr Qamberi also helps with maintenance around the plaintiff's house.
The plaintiff says that takes a lot of medication to help with his pain. The medication he takes has changed over time. When he takes medication, he says that it does not get rid of the pain, it just makes it a bit better. He says that the pain that he has wakes him up at night and also makes it difficult to fall asleep. He keeps going to see pain specialists, who have tried different medications and other ways to help him cope with his pain and disabilities.
From about May 2018, his general practitioner gave him a prescription for medications to help him with his pain. From about that time, he says that was taking Lyrica twice per day (once in the morning and once in the afternoon); Oxycontin (once in the evening) and Clonidine (once in the morning). He thinks these medications are paid for by the worker's compensation insurer.
On about 19 June 2018, he started Stage 1 of the ADAPT Intensive Pain Management Program at the Royal North Shore Hospital Pain Clinic ("the Pain Clinic"). He thinks this was paid by the worker's compensation insurer. He did not pay for it and could not afford it. A number of different people treated him, including doctors, a physiotherapist and a psychologist. He remembers the doctors asked him a lot of questions in his first meeting with them.
According to the plaintiff, he told the doctors about his pain, the medicine he was taking, how the pain affected him and what made the pain worse. He also told the doctors that he tried try to use his right arm to do light things but that made him feel more pain. The doctors said he should keep trying to use his right arm as much as he can. They told him he had to keep using his arm or it may get worse. This frightened him. He told the doctors he did not drive a lot, and when he did, it was only for short distances.
He was given exercises to do, shown how to do stretching and he was also given an elastic band to help him with the exercises. He says that doctors said they wanted him to make his right arm stronger and to get it to move more with less pain. He saw a psychologist who helped him with the pain in his hand at RNSH ('Pain Clinic').
On 15 October 2018, he started Stage 2 of the ADAPT Intensive Pain Management Program at the RNSH ('Pain Clinic').
During Stage 2 of the program, he says that he did stretching and exercises at his home and at the Pain Clinic. He was told by the people who ran the course he should try his hardest to socialise with others, use his right arm more and try to make his right arm stronger.
The doctors at the Pain Clinic checked on his progress. During Stage 2 of the program, he says that he could use his right arm more to help dress himself, he could walk and stand for longer with his arm hanging down, and he was not taking as much medicine for pain as before.
He says that he was not able to continue to Stage 3 of the ADAPT program as a lot of things were going on in his life at the time. His marriage had broken down, and he moved out of home for a while. The separation made him miserable and depressed. He also started to suffer from kidney stones, which added to his stress levels. He lost the motivation to do the exercises of Stage 3 of the program because of the relationship problems he was having with his wife. While a lot of the progress was made in the ADAPT program seemed to go away and his pain got worse. He did not return to the Pain Clinic.
In mid-December 2018, his general practitioner changed his prescriptions. From that time, he was taking Lyrica twice per day (once in the morning and once in the afternoon); Targin twice per day (once in the morning and once in the evening); and Clonidine (once in the morning). He usually took Targin, Clonidine and Lyrica in the morning between about 8.00 am and 9.00 am. He usually took Lyrica in the afternoon between 12.00 pm and 3.00 pm. He usually has his evening dose of Targin and Lyrica between 8.00 pm and 10.00 pm. Since his accident, he has also taken Panadol throughout the day as required. Approximately one year ago he stopped taking Clonidine. The other medications have continued.
He thinks that Lyrica is given to him for the pain in his arm. When he takes Lyrica by itself, it does not really have any effect on his level of pain. When he takes Lyrica and Targin at the same time he says that the pain gets better for a while and then gets worse again.
He says his right arm and hand regularly shake. He has noticed that when he is in more pain or when he has been moving or using his right arm more, his hand and arm shake more. When he is in less pain or has not been doing anything with his right arm, his hand and arm shake less. He has noticed when he takes Targin and Lyrica together, his pain gets less and that helps a little bit with the shaking in his arm.
He identifies the pain he feels in his right arm and hand. Aside from his shaking going up and down as his pain goes up and down, it appears to him that he is feeling stress about his pain, his accident or his current circumstances, the shaking in his arm can sometimes get worse.
Since the date of the plaintiff's accident he says, the pain, shaking, strength and movement of his right arm changed from time to time. Some days or weeks are better than others. Sometimes the plaintiff's arm feels better or worse at different times during the day. How the plaintiff's arm feels can depend on whether he has been trying to use his right arm to do things, whether he lifted anything with his right arm, whether his medication was working, and how is feeling mentally. Sometimes, he says that his arm feels better or worse for no apparent reason.
Since the plaintiff's accident, he says had been able to lift about half a kilogram using his right arm. Sometimes when his arm was in a lot of pain, he feels like he could not lift anything at all and tried to avoid using it. If the pain in his arm was lower than usual, the heaviest he could lift using his right arm was between about one to one and a half kilograms. When he pushed himself to lift or carry that kind of weight, he was only been able to do so for short periods. When he pushed himself to lift those weights, his right arm became very tired and the pain in his arm seemed to get a lot worse.
When the pain in his arm was lower than usual, he says that he tried to do light cleaning and tidying around the house. He says that when he tried to do that in the past, he was only able to do things that take a short amount of time. When he had done light cleaning for a short period of time, the pain in his arm had become worse and he usually had to rest his arm for a number of hours or take medication for the pain.
He says that he can still drive short distances and he can drive around his local area. The most he says that he can manage is about 15 minutes. Whenever he needs to drive for longer periods, or if he needs to go to the city to see doctors, his friend, Mr Qamberi, a Hazaragi speaker, usually drives him. The plaintiff uses his left hand and arm to steer the car and generally uses his right hand and arm to support the steering wheel.
The plaintiff says he finds it difficult to use a fork or knife or spoon to eat with his right hand. That is because of both the pain and shaking in his arm. The plaintiff can use them with his left hand, but using a knife is hard because he needs to use both hands to cut food. He may be able to do light things like make a cup of tea, but he cannot open jars, bottles or cans with his right hand. He says that he still cannot cook a meal or help his wife with meal preparation for their family.
The plaintiff says he often relies on his wife to help him with dressing. He says that the hardest part of dressing is putting his right arm into sleeves. He can do that, but without his wife helping him, it is difficult. His wife also helps him do up the buttons on his clothes. He can use his left hand to do most buttons up, but it takes more time and is difficult as he is not left-handed.
The plaintiff says he is still not able to do shopping for his family and he relies on his wife. If the plaintiff goes to the shops, he says that it is generally when nobody else can help him, and then it is in his local area and only to get one or two light items that he can manage to carry with his left hand. If he must do shopping for his family, his wife or daughter comes with him to lift and carry heavier items and bags.
He says he finds it hard to push and pull items with his right arm. He also says that he can move very light items back and forth, open and close doors, and do very basic pushing and pulling with his right arm, but it can cause pain and his arm gets tired easily after repeated movements. He says he cannot push or pull items that weigh a lot.
The plaintiff says the pain levels in his right arm still go up and down. When his pain is worse, his arm does not feel as strong and gets tired easily. It is also harder to move his arm on days when the pain is worse. Sometimes when he medicates for his pain and his arm feels better, he can do some very light things around the house with his right arm, but when the pain medicine stops working, his arm feels worse than it did before he took the medicine.
He says that his lawyers have told him, Ms Dinley, an occupational therapist, prepared a report stating that he did not show her his car even though it was in his street when she came to the plaintiff's house. He had an interpreter present. The plaintiff remembered Ms Dinley asking him a few times where his car was or asking him if he can show her his car. The says that the plaintiff told her his friend had taken the car for a service. His friend's name is Zamaan. The plaintiff gave Zamaan the key to the car and he thought he took it because the car was not in his driveway where it is usually parked. He was not sure whether Zamaan had taken the car and returned it or whether he had not taken it yet when Ms Dinley was at his house. If he knew the car was at his house, the plaintiff says that he would have shown it to her. From the first time he met Ms Dinley in 2019, he told her that he was able to drive short distances in her car.
The plaintiff says the relationship between himself, and his wife is very strained. They argue a lot and they had already had one separation. He is worried about what would happen to him if their relationship failed. He has no other family in Australia who could help him and he does not have many friends who would help him with heavy household chores that his wife currently does for him. The plaintiff says that he would have to get commercial cleaners and help and he did not have the money for this.
Finally, the plaintiff also says that he would like to attend English classes, but he does not have the motivation and feels depressed. He finds it hard to concentrate. He worries about his future and how he can financially support himself and his family with his right arm problems.

[57]

The plaintiff's submissions on credibility

The plaintiff's credibility and reliability need to be assessed after due consideration of the following matters: His lack of education, cultural issues (Dinnen 2 CB 464), use of expression (for instance, whether the tremor has been "constant" since the accident), the existence of his depressive illness (which emerged in about November 2016 as the then clinical treatment was not giving rise to his expected recovery), his personality traits including the fact he was one to catastrophise (2 CB 498, [5.67]) and his use of medication.
The plaintiff acknowledged that the defendants' case in opening submissions is that the claim is based on fabrication, even though it was not pleaded in either of their defences, in accordance with Part 14 r 14.2 Uniform Civil Procedure Rules. The defendants have clearly alleged the plaintiff's complaints amount to feigning, faking or malingering as part of a conscious intention to mislead for the purpose of financial reward. The plaintiff was challenged on a very limited basis that the tremor was made up. There was no challenge to the plaintiff's claim that he suffered a pain condition.
Counsel for the first defendant addressed the Court very early on and made an allegation the tremor in the arm was a fake and it does not exist (T 3.10). The case was opened on the following basis: "But effectively, your Honour, he's presented to doctors over the years with a (sic) described as a tremor of his right arm where it just doesn't stop shaking, and it appears the evidence has been that has been the case, at least, for many years after the accident. Unusually, it's not done often this way but there was some surveillance undertaken … which shows the Plaintiff not to be shaking his right arm. The Plaintiff put on a subsequent evidentiary statement, it's a little unclear exactly what he's saying, but there's suggestions that if he doubles medications it goes away, and there's good days and bad days, and the like. The Defendant's case, quite frankly, is the whole thing's a fake, it doesn't exist."
During cross-examination, the following allegations were put in opening by the plaintiff, there was this observation at T 24.03: "He says, and I assume Mr Kelly [Counsel for the second defendant] will say the same thing, that this is just a fake. It's an exaggerated response and I assume the objective is in pursuit of financial reward or gain."
Further, at T 28.25: "it seems the defendant's case is that this is a case of exaggeration and malingering and fabrication of symptoms for financial gain, because this isn't chronic regional pain syndrome, and there's not any other readily identifiable cause for this man's disabilities."
And at T 29.34: "The question is, really, whether he does have a medical condition, which is associated pain and tremor in his shoulder [should be right hand]. and if so, whether it's legitimate or whether it's fabricated. Whether he believes it or whether he doesn't."
It became clear at T 42 (and elsewhere): "Q. See, I suggest to you Mr Babayi, that this shake you have fabricated for the purposes of trying to get money out of this case? A. INTERPRETER: No, my hand shakes like that and I have not done it for purpose of money."
In short, the plaintiff denies that he is faking.

[58]

Eden Park's submissions on credibility

The plaintiff's fall caused a dislocation of the right elbow and an undisplaced fracture of the radial head. The usual prognosis is a return to normal activities within 3-4 months. In contrast, the plaintiff's claim in these proceedings, and in the witness box, was that the accident has left him with little or no use of his right arm - that he is "unable to use [it] properly", and that it is essentially useless, due to ongoing pain.
The plaintiff also claims that the accident has left him with a pronounced tremor in his right arm and hand. He displayed this tremor in the witness box - keeping it up quite valiantly for the most part, Eden Park submits that though visibly tiring after a few hours (at which point the right hand dropped below the table and the tremor became far less pronounced). He was, however, unable to keep up the performance in the gallery after he had finished giving evidence. Notwithstanding, his evidence was that the tremor has been present since 3-4 weeks after the accident, and that his arm shakes all the time. He said the tremor decreases - but does not stop - when he takes extra doses of his medication, and that it increases when he feels stressed or pressured.
The plaintiff gave similar histories to multiple doctors, with and without interpreters: 1. On 6 June 2017 and 26 April 2022, the plaintiff told neurologist Dr Milder that the tremor was present daily and "throughout the day". 2. The plaintiff presented to vocational assessor Professor Bright on 7 August 2019 with a constant tremor in his right hand, and said he could lift nothing with it. 3. On 20 August 2019, the plaintiff presented to orthopaedic surgeon Dr Harvey with a constant tremor, indicated he could do absolutely nothing with his right arm, and would not actively move a single joint in it, supposedly due to pain. 4. When assessed by occupational therapist Ms Dinley at his house on 11 September 2019, the plaintiff's right arm was constantly shaking - so strongly that Ms Dinley was bounced up and down when she held it firmly and tried to stop it. The plaintiff also presented as unable to grasp and hold a grip strength meter in his right hand, and said it caused too much pain to carry even half a kilogram in his right hand. 5. The plaintiff told psychiatrist Dr Wilcox on 29 October 2019 that he was unable to manage any activity with his right hand, including eating, writing, and dressing. In the witness box, he said this remains true. 6. The plaintiff told orthopaedic surgeon Dr Machart on 23 October 2019 that he was left with not much use in his right hand, and that he had very little movement of his right arm. 7. When assessed by Ms Dinley on 20 April 2022, the plaintiff said he was unable to do anything with his right hand, and that he is mentally suffering due to his constant 24/7 right dominant hand tremor, which is embarrassing, forcing him to self-isolate, not socialise in the community, and to drive rarely. 8. On 26 April 2022, Dr Milder recorded a tremor, that "[v]oluntary movements of the right shoulder were unable to be performed due to marked pain", and that this also prevented any assessment of the strength of the right arm. 9. On 22 April 2022, the plaintiff presented to Dr Wilcox with a shaking right arm and told her the pain limited his ability to manage any activities, that he was unable to lift his right arm above waist level and that he rarely drove because it was difficult to drive with one hand. 10. The plaintiff told rehabilitation physician Dr Dalton on 3 May 2022 that his right arm shakes constantly, that he cannot use that arm and that his sleep is frequently broken by it. 11. The plaintiff told psychiatrist Dr Dinnen on 16 May 2022 that his right arm was useless.

[60]

Other inconsistencies

The plaintiff's evidence was inconsistent or implausible in other respects.
The plaintiff said he had never estimated to anyone, in metres, the height from which he fell, and had only indicated that height with his hand. Yet his liability expert and multiple doctors record histories in metres, with none suggesting he had merely indicated the height with his hand.
The plaintiff pruned 444 trees before his accident. As to how many of those needed a ladder to prune, the plaintiff initially said it was all of them (and that he used a ladder on each side of each tree), then that he did not remember, then that it was not most of them, then that it was most of them, then that he did not remember, and finally, again, that it was not most of them.
The plaintiff eventually conceded that it is untrue to say he cannot use his right hand at all. He added - dishonestly, given the consistent histories to doctors - that he had never claimed this, and that any record of him saying so must be due to translation problems.
The occupational therapists agreed that if the plaintiff had minimal use of his right arm as he claimed, there would likely be serious muscle wasting in his right arm - which was not present. That was also the unchallenged evidence of Dr Machart: "you'd expect to have skin on bone…like you see in paraplegic people."
When assessed by Ms Dinley at his house on 11 September 2019, the plaintiff demonstrated that he could not reach using his right arm without using his left hand to stabilise it. In the witness box, he said he could lift it slightly higher than that when he had taken his medication. Inconsistent with that evidence, Ms Dinley recorded that he had in fact taken his medication on the day of the assessment.
Ms Dinley noticed that in 2019, the tremor went up and down, whereas in 2022 it went sideways. The plaintiff claimed - implausibly, if he were genuine - that he had not noticed any change in this respect.
When Ms Dinley asked to see the plaintiff's medication on 20 April 2022, he showed her boxes of medication prescribed in October 2020 and March 2021. These were nearly full, indicating that he hardly used it - contrary to his claim that he "always take[s] medication".
The plaintiff was a partner in a travel agency business. He said he was "unable to book any tickets" because he "cannot read and write". He said he is "unable to write English", other than his name, his wife's name (which he sometimes misspells), and two of his three children's names. Given those limitations, neither the plaintiff, nor his friend Mr Qamberi (who had seen him working in the travel agency), had any comprehensible explanation of what the plaintiff actually did in the business - beyond somehow charging people to submit, or perhaps post, visa forms they had already filled out themselves.
In August 2019, the plaintiff told vocational assessor Professor Bright that he could send and receive emails and do Internet banking, and that he has a Facebook account and uses WhatsApp. In the witness box, he said he cannot write emails or messages. Contrary to that evidence, his WhatsApp messages, examined in the courtroom, showed he was able to communicate in simple English, such as making arrangements to buy cigarettes. While it is not suggested the plaintiff reads or writes fluent English, he clearly lied about the limits of his abilities, by downplaying them.

[63]

Surveillance footage

I carefully viewed hours (about 10 hours I think) of surveillance footage over days. The surveillance filmed occasions between 2019 to 2022, showing the plaintiff engaged in a range of ordinary activities: driving, shopping at several locations, carrying a tray of drinks, using his iPhone, washing his car, socialising with friends, pouring and drinking tea, and so on. Throughout hours of recorded activities, he used his right arm without apparent pain or restriction, and there was never any tremor or obvious restriction in its use. The only unusual feature of his presentation was that he often kept his right hand in his pocket. I have largely adopted the first defendant's summary of the surveillance footage but have deleted some of them and added my own observations.
The footage recorded the following examples: 1. On 28 June 2019, this plaintiff is shown picking out polo shirts at a store, holding them in his right hand well above shoulder height, and going into a changing room to try them on. He told Ms Dinley, on 20 April 2022, that he is too embarrassed to go to the shops and will not shop or clothes. 2. This next bit of surveillance footage on 15 August 2019 is striking. The plaintiff was with a friend when he crossed Macquarie St from the Mint side. The surveillance shows the plaintiff standing on the mint side of Macquarie Street when he was on his way to attend Prof. Fitzsimons' rooms in Mena House for a medico-legal examination. The surveillance showed the plaintiff using his mobile phone and carrying papers in his other hand. His right arm was not shaking. Counsel for the plaintiff requested this Court to carefully review the footage, as he submitted that the plaintiff's right hand was shaking. I have reviewed the footage a number of times. At best the plaintiff's right hand gave a momentary tremor before his hand was put in his pocket as he crossed Macquarie Street to attend by Prof. Fitzsimons rooms. Prof. Fitzsimons recorded observations at that appointment that his right arm was shaking dramatically. The plaintiff suggested that his medication wore off, or that the tremor was brought on by the stress of the examination. Yet he gave no such history to Prof. Fitzsimons - an inconsistency he speculated, implausibly, was due to translation problems. This footage was also just 5 days before the plaintiff presented severely disabled to Dr Harvey on 20 August 2019, where he claimed he could do "absolutely nothing" with his right arm. 3. Another more striking piece of surveillance footage on 11 January 2020 shows the plaintiff sitting for hours at a café with friends. He was laughing and joking, and pouring tea for himself and others. He was able to reach right across the table with the teapot in his right hand and pouring the tea into the other attendees' cups without any discernible tremor. The plaintiff explained that there was a religious friend at the table, and for religious reasons, it would have been disrespectful to use the left hand in front of him. He further explained that the religious friend was one who attended the mosque regularly. In my view, his explanations did not actually explain the absence of any tremor or apparent restriction in the right arm. It also did not explain why, earlier that day, without the friend present, the plaintiff had freely and vigorously used his right arm to scrub his car. Further, when asked by Ms Dinley on 20 April 2022, the plaintiff denied socialising and said he had lost his sense of humour. The plaintiff's friend, Mr Qamberi, confirmed the plaintiff "[o]f course" goes to the café "a lot". I find Mr Qamberi to be an unreliable witness. 4. The plaintiff said that, due to the tremor, he always drives only with his left hand. On numerous occasions, the footage showed him comfortably using both hands to drive. He then admitted he sometimes uses his right hand when driving. It is at odds with the footage that always showed him doing so. 5. Footage from 13 January 2022 showed the plaintiff carrying a large folding clothes rack with both hands and placing it in the back seat of his car. The footage demonstrated that he had no difficulty in undertaking that task by himself, which is at odds with his evidence. 6. On 24 May 2022, the plaintiff went to his GP for a sore throat. Footage showed him arriving and leaving, then picking up a prescription at a chemist, with no tremor or apparent restriction; nor do the GP's clinical notes of that consultation record any tremor. Two weeks earlier, when the plaintiff visited the same GP for a workers compensation certificate, the clinical notes record that the right arm was shaking. 7. I do not accept the plaintiff's possible explanations as referred to earlier in the First, he said he might not have been in pain on those days, because he had taken "extra medication". Yet, across years of medical appointments, and despite his unequivocal evidence that his medication at best "makes [the pain] a bit better", not once did the plaintiff suggest that extra medication allows him to move freely without any apparent pain or tremor. Only when asked to explain the surveillance footage did he suggest, to Dr Guirgis, that doubling his medication "would minimise the jerking" (which still does not suggest it would stop entirely, as observed in the footage). 8. Secondly, the plaintiff explained that sometimes he "had no choice" but to engage in various activities, or it was an "emergency". He committed to the position that every occasion captured on film just happened to be an emergency. That is not credible; but even if it were, it would only explain why he attempted various activities, not why he was able to perform them without restriction. Curiously, the plaintiff said he "had no choice" about driving his children to school - and had done so - "if…it was raining, or it was too hot, or they were running late."

[64]

Plaintiff's submissions

In summary, the surveillance shows the plaintiff engaged in activities that are most inconsistent with his claimed levels of disability. This undermines his credibility. It also undermines his other claimed disabilities, such as alleged difficulties buttoning his shirt, dressing himself, shaving his face, or doing up a zipper, going shopping, washing his car, socialising and pouring cups of tea at the café.
The tremor in the plaintiff's right wrist and the plaintiff's claimed disabilities, are largely uncorroborated. The plaintiff has lived with his wife since the accident, other than a brief period of separation. Despite seeing him day and night, no evidence from the wife was called to corroborate the tremor or the plaintiff's claimed disabilities, or any domestic assistance. Nor did she provide any evidence of domestic assistance
The plaintiff's wife had signed an evidentiary statement. There was no explanation as to why it was not relied upon and why she was not called to give evidence. It is my view that she would have been in the best position to provide corroborating evidence if she observed the plaintiff's right arm shaking, his other disabilities and any domestic assistance she was required to provide. In the exercise of my discretion, I have drawn a Jones v Dunkel (1959) 101 CLR 298 inference that her evidence would not assist the plaintiff's case. I will also made adverse findings concerning Mr Qamberi's evidence.
I have already recorded my observations of the plaintiff's demeanour when he was in the witness box when he was cross-examined. I have taken into account that his first language is not English and that he has had little formal education. However, I have reluctantly come to the conclusion that his evidence was evasive, unreliable and at other times his evidence was implausible. It follows that I had difficulty accepting his evidence unless it is corroborated by evidence of others witnesses or contemporaneous records. There are other difficulties with his evidence as to causation and damages which I will refer to when I later analyse the medical expert's evidence.
It is convenient if I now record the plaintiff's friend, Mr Qamberi's evidence that addresses the plaintiff's condition both before and after the accident.

[66]

The first statement

Mr Qamberi was born in 1991. He is a friend of the plaintiff. He has known Ali for most of their life. They were originally from the same village near Ghazni, Afghanistan. Mr Qamberi and the plaintiff have been close friends for most of his life. He has always looked up to the plaintiff as an older brother.
In 2014, Mr Qamberi moved from the UK to Australia. After arriving in Australia, he shared a house in Auburn with the plaintiff. There were other people living on the premises usually 3 or 4 people in the shared house were Afghani.
In 2015, Ali left the share house shortly before his family arrived in Australia. After this, Mr Qamberi would see Ali once or twice a week with his family at their new home. A few weeks or months after Ali's family came to Australia, and after the travel agency closed, Ali and his family all moved to Orange, NSW. Then he would travel to Orange every few weeks to see the plaintiff and his family after they moved.
He says that to his observation, when Ali was with his family in Pakistan and Australia, he appeared to be a very involved husband and father. Mr Qamberi remembers that because men in his culture usually work outside the house, while women usually take care of the household and children.
In around late January 2016, Mr Qamberi was at work on a construction site in Sydney. He called the plaintiff on the phone. During the conversation with the plaintiff, he heard something in the background. He asked, "what's that?" Ali said words to the effect of "I fell off a ladder at work and now I'm in hospital".
After the phone call he went to Orange Base Hospital to see Ali. He spent a few days there staying at Ali and his wife's house and taking care of the children. After Ali's accident he visited Ali almost every 2 weeks to help in any way he could.
After Ali moved back to Sydney he helped to move a television and mount it on the wall as he was of the opinion that Ali could not do that himself. He also helped move a washing machine into Ali's house and install it, and also install a shelf in his garage. From time to time he would mow Ali's lawn. He would drive Ali's children to school and would drive Ali to appointments and the chemist.
Mr Qamberi returned to Australia on 19 May 2022.
According to Mr Qamberi, before the accident, Ali was a very active person. He loved to cook and would always be building something or doing DIY-type work around the house. Mr Qamberi observed Ali helping his wife do cooking for their family, or when they had guests. He would help with his kids, take them to and from school, and appeared to be very close to them. He always thought of Ali as a jolly man who was down to earth.
After the accident, it is Mr Qamberi view that Ali is now more of an angry person. Since the accident, when he has been at his house, he has seen the plaintiff get angry and yell at his wife and kids. He says that the plaintiff now has a short fuse and it looks like his wife and children are scared to upset him. The plaintiff always tells Mr Qamberi that he feels bad about being so angry towards his family. The smallest thing seems to set him off. The plaintiff has told Mr Qamberi that he will often spend time out of the house to avoid having fights with his family. On occasions when the plaintiff's son has had disciplinary problems at school and the plaintiff has been called in for a parent meeting, he has asked Mr Qamberi to go in his place so that his anger does not get the better of him in those situations.

[67]

The second statement

In March 2022, Mr Qamberi was asked by the plaintiff to prepare a statement (the first statement) six years after the accident. Mr Qamberi was in Pakistan at the time. He was asked to recollect how the plaintiff's behaviour had changed since the accident had occurred. When cross-examined as to why he had not remembered to include the fact that he had observed the plaintiff's hand shaking in his first statement. Mr Qamberi's evidence is that this omission was because he had written the first statement early in the morning while he was in Pakistan (T280.18-25).
Mr Qamberi was cross-examined about his omission of significant detail in his first statement, omitting the fact that the plaintiff's arm had been shaking for six and a half years, whereas Mr Qamberi had mentioned that the plaintiff had gained a significant amount of weight (T284.1-5). Mr Qamberi equated this lapse in memory to forgetting one's keys or forgetting a meal, as well attributing this oversight to the personal stress he was under by having to attend to his sick mother at the time of drafting (T283-284).
Mr Qamberi's evidence is that he had forgotten why he was asked to write a second statement. He denied that the reason was that he forgot to include any observation that the plaintiff's arm was shaking or that he was instructed by the plaintiff's counsel or solicitors to include additional details (T285-286). Mr Qamberi claimed that he would often work from 7:30am until 8pm, with a half an hour work break (T286.10-15) and that he had just started at his new job when he took the call from the plaintiff's solicitors regarding drafting a second statement. He said he was distracted by the pressure of his workplace and that is why he could not remember details.
On 2 March 2022, Mr Qamberi participated in a teleconference with the plaintiff's counsel and solicitor, Mr David Carter.
Mr Qamberi says that he sees Ali regularly. He usually sees him once or twice per month. Over the years since his accident, Ali has complained about very bad pain in his right arm and hand. He has seen that Ali has difficulty bending his right arm at the elbow. In his culture, it is usual for people to eat with their right hand, but since the accident, Ali uses his left hand to eat.
Mr Qamberi says in this statement that since 2016, he has seen Ali's hand shaking. He has seen Ali's forearm, hand and fingers shake. To the best of his recollection it now seems to him that Ali's hand is always shaking, but he cannot remember every single time he has seen him since 2016, and he does not spend every day with him. Mr Qamberi says that there may have been occasions when Ali's arm and hand may not have been shaking, but he simply does not remember it. He explained that it is not something that he focuses on.
Based on what Mr Qamberi has seen, sometimes the plaintiff's right arm shakes more and sometimes he shakes less. When he sees Ali, he usually wears long sleeve shirts. He often has his hand in his pocket. Sometimes Mr Qamberi can see his hand and fingers shaking but he can't tell if his forearm and arm is shaking. Sometimes Mr Qamberi can see his hand and fingers shaking and either see his forearm moving under his shirt or jacket or in his pocket, or he can see his shirt or jacket sleeve moving.
Mr Qamberi says that often Ali gets nervous or upset. He can tell he is nervous or upset because he looks sad or looks like he is thinking very deeply. Sometimes Ali says to Mr Qamberi words to the effect that he gets "stressed and upset". He has said to me words to the effect that he gets stressed and upset about "things he can't do anymore": "the fact he is not himself anymore" and "because he gets upset over small things now". To his observation, on the days Ali is smiling, appears to be happy or says that he is less stressed, his fingers, hand and arm still have some shaking but it is a lot less.
Since 2016, Mr Qamberi says that he hasn't seen Ali use his right hand much. From what he has seen, Ali mainly uses his left hand to do things. He cannot recall seeing him pick up any heavy items with his right hand since his accident. When he has seen Ali use his right hand, usually when they meet up and there are heavy items or heavy bags to be carried, his wife, children, friends or he helps him by carrying them for him. Mr Qamberi says that the plaintiff has said to him many times since 2016 words to the effect that he is "in pain all the time".
Mr Qamberi cannot explain why he did not mention Ali's shaking hand in his first statement. He cannot remember whether he was asked about this by Ali's barrister or solicitor. Had he been asked about it he would have told them that he has seen Ali's hand and arm shake, as set out in this second statement. He has seen Ali's right-hand shake when they get-together or when he is at his house. Mr Qamberi says he has attended many doctors' appointments and lawyers' appointments with Ali. He has seen his right hand shake on these occasions.
When asked about the surveillance, Mr Qamberi replied that it would not surprise him if he saw the plaintiff doing certain tasks like washing the windscreen of his car (T295.20 - 50). Mr Qamberi admitted that he would be surprised if the plaintiff would be able to lift a bucket full of water with his right hand (T302.10-15). When showed the video evidence, Mr Qamberi conceded that it surprised him 'a little bit' that Ali was lifting the bucket but responded that nonetheless, it wasn't a 'very… physically demanding job' (T302.35-35).
He admitted that Ali did not inform him about the surveillance footage where Ali is filmed pouring a pot of hot tea into cups across the table with his right hand. Mr Qamberi confirmed that it is disrespectful in their religion to use one's left hand when eating or drinking. Therefore, he would have to use his right hand. When Mr Qamberi was asked would be unusual to uncontrollably shake in the presence of an occupational therapist and on a different occasion be able to lean across a table and pour tea, Mr Qamberi replied that in his observation, the plaintiff's shaking depends on his stress levels and mood (T307.1-25).
When asked whether, in his opinion, Ali could do up a zipper on his jacket, Mr Qamberi was not forthcoming in his answer to the question (T311.1-50). He eventually conceded that on the day of the coffee shop video footage, the plaintiff may have been able to zip up his jacket. When Mr Qamberi was shown the video of the plaintiff lifting clothes above his head, he was asked whether that was extraordinary considering he had limited movement in his right arm (T312.1-50). Mr Qamberi replied that he perceived the plaintiff's arm to be bent in the video (T313.1-20).
When counsel for the first defendant asked Mr Qamberi whether he would normally see Ali lift his arm above his head. He replied that Ali told him that he cannot lift heavy objects (T313.15-30). Mr Qamberi said that he could not ascertain what Ali could and could not do with his hand, as it was often in his pocket (T313.25-35). When asked whether he was able to make a proper assessment of Ali's arm, Mr Qamberi said that he visited the plaintiff in the hospital after the accident and saw the effects of his injury firsthand (T313.35-50).

[70]

The plaintiff's evidence

After sustaining his initial injury, the plaintiff went on to develop pain, stiffness and sensory changes in his right arm. The Court should make a finding to this effect.
The plaintiff suffered injury and on presentation had an obvious gross deformity, and the dislocation was reduced in the Emergency Department (Dinley report). Immediately after removal of the back slab, the plaintiff experienced a right-handed tremor. This was the subject of an extensive investigation by his treating doctors.
He suffered a neuropraxia for a short time although this appeared to have resolved - it being related to a nerve block to enable relocation of the humerus (this is common ground). He developed Chronic Regional Pain Syndrome type 1 (as per Dr Gurguis and Dr Machart, and several of the treating doctors), or a movement disorder, with depression (for which he was treated) and a pain disorder (for which he was treated) and somatoform disorder (for which he was partially treated at the Pain Clinic). He attended physiotherapy, psychologists and psychiatrists. He was prescribed analgesia and anti-depressants by his treating doctors. He attended the Pain Clinic but disengaged after marital disharmony. He did not re-engage.
It is a feature of the expert evidence that he needs to wean off analgesia for the treatment of his pain condition. This is consistent with the pain clinic recommendations that the plaintiff needs to disengage from passive treatment modalities such as analgesia. It is also a feature of the evidence (except for Dr Dalton) that he needs to re-engage with clinical management to attempt to restore his functioning, with the pain clinic being the likely venue. Prof. Fitzsimons was clear about this as was Ms Dinley.
The plaintiff was provided with workers' compensation weekly payments and his medical costs and expenses were covered by the workers' compensation nominal insurer. There are extensive files regarding his treatment and the need for rehabilitation. These attendances have been set out in detail in the plaintiff's chronology and the plaintiff incorporates this document by reference into his submissions. These documents are an important repository of information and are essential to properly resolving the conflict between the parties. The Court should make a finding to this effect.

[71]

Diagnosis of CRPS

Chronic Regional Pain Syndrome is established by the Budapest criteria or clause 17.1 of the assessment guidelines set out in detail later in this judgment. When one goes through the elements, the clinical and medicolegal reports are replete with observations of clinical signs which are incapable of being faked.
It was a feature of the evidence that each of the defendants' doctors variously drifted towards either a suspicion about fabrication, or actually opined that the plaintiff was fabricating his claim after viewing the video footage and contrasting this against the video footage.
Most of this analysis based on surveillance revolved around the right arm tremor that was demonstrated on many attendances by doctors. The predominance of the footage does not depict shaking.
It is a feature of the case that the plaintiff was not cross-examined on the contents of his second statement, nor was it suggested that his statements that the shaking was aggravated by stress or alleviated by analgesia were false and part of the deception. The Court should make a finding to this effect. The fact is that the contemporaneous clinical records record the aggravating and alleviating circumstances relating to the tremor. These are identified in the chronology and the attached appendix. The Court should make a finding to this effect.
Importantly, without such a challenge to the alleviating factors, any submission about complete fabrication of the tremor is not available, because they have the capacity to provide a wholly satisfactory explanation for the appearance on surveillance. It is not a matter of "luck" that the footage did not depict the tremor- it is a matter that the plaintiff was not depicted functioning under moments of stress.
The plaintiff concedes that the extent of the tremor, and its effect on functioning remains an issue for resolution by the court. Further, the evidence of Dr Wilcox that she thought the symptoms were a fabrication must fall away.
It is also a feature of the evidence that the defendants' doctors (Drs Machart, Dinley, Fitzsimons and Dalton), having viewed the footage, formed a view that the plaintiff did not suffer from CRPS and stated so in the reports and conclave reports. However, during cross-examination in conclave: 1. Each expert agreed that the features of CRPS could fluctuate. 2. Each expert agreed that the condition could fluctuate. 3. Each agreed that looking historically at the treatment and medico-legal records, there were objective signs and symptoms of CPRS that could not be "faked". 4. Historically, Dr Guirgis diagnosed the condition. That he diagnosed it by reference to Clause 17.1, perhaps incorrectly, does not matter and it could be equally diagnosed under the Budapest protocol. 5. Dr Machart diagnosed the condition, having identified each of the requirements for CPRS, including the objective signs. 6. With the exception of Dr Dalton and Ms Dinley, each of the non-psychiatric experts agreed that the condition either existed (Dr Machart said it may have abated) or the diagnosis was available (Prof. Fitzsimons)

[72]

The plaintiff's summary of the favourable evidence of the medical experts

On 19 February 2016, the plaintiff saw Dr Vijay Maniam, orthopaedic surgeon, who met with a team leader at Work Focus. By that point, no physiotherapy had been commenced and the right elbow was in fixed flexion at 90 degrees, and he was unable to clench his fingers (3 CB 941). It appears that the first record of tremor in the right hand was made during this consultation (2 CB 595).
On 23 February 2016, the plaintiff was reviewed by Dr Maniam. He was referred back to the Fracture Clinic because there were concerns about neuropraxia symptoms and weakness in the right arm and he was to be reviewed by Dr Kwa (3 CB 940).
On 9 March 2016, the plaintiff was reviewed by Dr Maniam noting pain and tremors with Lyrica prescribed (3 CB 940).
On 11 March 2016, Dr Kwa noted "when he focuses on his hand he has a marked tremor. I notice slight discolouration of his hand compared to the left hand with slight purplish discolouration (2 CB 571)".
On 23 March 2016, the plaintiff was reviewed by Dr Maniam and there was discussion about a letter from Dr Samuel Khan. The diagnosis of CRPS and tremor which was not typical. He was referred for pain management and neurological review (Dr Hammond).
On 11 July 2016, Dr Thong recorded the plaintiff's case worker attending the appointment noting continuing pain, no response to Fentanyl increases that there was a noted reduction in tremor but only after resting and that it becomes worse if holding a position too long if the arm is not supported. He was reporting less pain in bed with the arm supported and tingling of the face. He was noted to hold his right arm in flexion at the elbow using his left arm to support the right arm. Continuing tremor, less when the arm is rested and worse the longer he holds a position and after palpation. At that time, there was no temperature, colour or sweating difference between the hands (3 CB 1247). It was noted the sympathetic features of the CRPS were less although the tremor and pain continued. There was noted allodynia on palpation. There was a trial of further medication, a recommendation for a sling and a recommendation to continue with exercises and maintaining movement (1 CB 124 [8]).
On 21 June 2016, Dr Thong prepared another report. In summary, there was diagnosed neuropraxia/neuropathic pain ((3 CB 1245) as well as CRPS and right elbow pain secondary to trauma (3 CB 1245).
On 10 June 2016, there was a report after a case conference with diagnosis of right elbow pain secondary to trauma, neuropraxia and CPRS with nerve injury. It was noted he was emotionally worse because of the pain and he was worried about his memory. He is forgetful but it was hard to know whether this was due to the pain, lack of rest or the medication. On examination, the tremor was noted to persist, the elbow allodynia and hyperalgesia, forearm and fingers hypersensitive made worse with passive movement and medication review.
On 12 May 2016, there was a progress report by Dr Thong noting sleep continued to be disturbed by pain and the tremor was reduced with the adjustment of pain medication. At this stage, he was undergoing physiotherapy.
On 8 May 2016, the plaintiff saw Dr Hughes, an orthopaedic surgeon specialising in shoulder and elbow surgery. He noted the history of the accident and the complaint of pain and noted the diagnosis by Dr Kwa of CRPS. He noted consistency of fragmentation of the epicondyle consistent with ligament injuries. He confirmed the CRPS diagnosis and was concerned about developing a secondary capsulitis of the right shoulder as well as potential surgery (3 CB 1238).
In April and May 2016, the plaintiff underwent physiotherapy. By 4 May 2016, he was noted to have had difficulty with making a fist and extending his fingers. There was improvement in tremor and pain levels following review which enabled better compliance with physiotherapy intervention (3 CB 1212).
On 11 May 2016, the plaintiff was examined by Prof. Hawke noting pain with the plaintiff holding his right arm against his trunk and any passive movement induced tremor and pain. The right hand was cold and sweaty.
On 18 May 2016, it was noted the plaintiff was very distressed, he was unable to provide for his family (2 CB 609).
On 24 June 2016, there was an MRI of the right shoulder noting subacromial bursa inflammation, small glenohumeral joint effusion without synovitis and mild supraspinatus tendinopathy with fraying suggesting injury with probably pre-existing cervical spine disc disease. It was noted there was less tremor and muscle wasting right arm consistent with lack of use (3 CB 1032).
On 11 July 2016, there was a pain specialist review with Dr Thong. There was an increase in pain, minimal strength to the right hand and the CRPS symptoms had reduced including sweaty palms, temperature and colour (PSB 58 and 84).
On 16 August 2016, Prof Hawke performed a SPECT/CT that revealed a considerable uptake in the right elbow and to a lesser degree in the right shoulder. There was a degree of subacromial bursitis but that was less of a problem in the right elbow. He referred the plaintiff to Dr Hughes, orthopaedic surgeon. Prof Hawke thought the tremor was secondary to the pain and he would not be concerned about it (3 CB 1038).
In a report dated 21 September 2016, Dr Thong addressed the tremor: "Dr Hawke's opinion is that it is due to pain. This is circumstantial and presumptive because the tremor is less with pain control. It doesn't exclude the tremor of CRPS or nerve injury (or potentially both diagnoses) (3 CB 1047)."
Some medico-legal experts placed weight on reaching their opinions on the report of Dr Michael Cousins dated 12 April 2017 (2 CB 649). He made an assessment and noted a rather exaggerated tremor which was abated by distraction and was markedly reduced at times down to zero. As Prof Cousins was writing the report, he observed that the plaintiff's hand tremors disappeared. He noted there was no increase in sweating but that the patient said it happened "a lot". He did not note any colour changes and no swelling. On the basis of this, he did not think the plaintiff had a CRPS. However, what Prof Cousins does say is that the plaintiff has: 1. Post-injury right upper limb persisting pain with some evidence of neuropathic pain descriptors and a voluntary right upper limb tremor. 2. Marked sleep disorder. 3. Much reduced physical and mental activities. 4. Depressed mood.
He recommended education, consultation with a pain centre clinical psychologist and physiotherapist to start cognitive behaviour therapy and a program of home exercises and strategies for dealing with fear avoidance behaviour and other problems identified during the evaluation. He further recommended: 1. Glenohumeral injection of cortisone. 2. Weaning off opioids. 3. a trial of spinal cord stimulation but he stated that he thinks the role of psychological factors needs to be carefully explored (3 CB 1196).
It appears the plaintiff was given a brochure on spinal cord stimulation (3 CB 1194).
He sought psychological assistance.
On 17 January 2017, a physiotherapist report noted a diagnosis of CRPS with tremors and limited range of motion. It was noted he had fear avoidance beliefs and hyperalgesia and there was a need to give Ali some direction, hope and purpose (3 CB 1176).
Throughout the period, the worker's compensation insurer had various transferrable skills analysis reports prepared (3 CB 1185 15 March 2017). There was a large number of barriers to work identified (3 CB 1186).
The reference to the ADAPT pain management appears to have taken place in September 2017 (3 CB 1128) with a referral by Dr Thong.
On 22 May 2018, it was recorded the plaintiff was agreeable to return to work, compliant with his treatment, participating in rehabilitation to facilitate faster recovery, willing to participate in medical case conferences, willing to participate in job seeking and he could access public transport independently to attend appointments.
On 22 May 2018, the plaintiff indicated he could lift 1 kg (PSB 109).
On 6 June 2017, the plaintiff received a corticosteroid injection into his right glenohumeral joint (2 CB 646; 3 CB 1138)
In July 2017, his English course was arranged (PSB 93).
On 11 October 2017, the plaintiff received a corticosteroid injection into his right subacromial space (2 CB 658)
On 15 November 2017, Danielle Said attended a medical case conference with Dr Maniam and the plaintiff noting the plaintiff presented with a sweating palm of the right upper limb.

[73]

The first defendant's submissions on the medical evidence

Counsel for the first defendant submitted that there is no doubt the plaintiff was injured. Rather, he proposed that the plaintiff had recovered from the injury in possibly a few months and was continuing to feign his injury to receive $1,500 a week in unemployment benefits (T314.35-45). Mr Qamberi replied that he wasn't a doctor or an expert, but knows what he saw (314.45-50).
As set out earlier in submissions on credibility, the tremor is fake, it is not corroborated by evidence that could be accepted, and the plaintiff has otherwise extensively lied about and exaggerated his symptoms and disabilities. The tremor is also not medically explicable as an organic consequence of the injury: 1. The orthopaedic and rehabilitation specialists agree that there is no organic or physical basis for the tremor. 2. There is also no identified neurological basis for the tremor. Dr Milder, for the plaintiff, says "the plaintiff reports that he has a tremor and also that he did not have it before the accident", and therefore it must be "related to the accident", whether in a "physiological, post traumatic or psychosomatic" sense. That is a fragile basis to attribute any medical or organic cause to the tremor (if that was Dr Milder's intention), and it overlooks the likelihood of fabrication. Dr Milder said he did not know if the tremor was organic, because he was "not aware of any test that is able to distinguish." A test was hardly necessary. As Prof. Fitzsimons pointed out, the tremor is likely to be voluntary (which was also the opinion of Professor Cousins) because of the way it fluctuated wildly and was "so gross that…the cause was likely to be non-organic." 3. The tremor was always unusual. The plaintiff's treating doctors recorded, in 2016 and 2017, that it "is not a typical symptom pos[t] injury or post nerve injury"; that it "could not be explained on an anatomical basis"; that there was "clear functional overlay", and that it was "an enhanced physiological tremor…of no consequence." The unchallenged evidence of the defendants' occupational therapist, Ms Dinley, is that the "tremor [in 2019] was extremely strong, and Ms Dinley, who is also a former Hand OT has never seen this symptom resulting from that injury-type in 35 years of working."
The first defendant submitted that to the extent the plaintiff seeks to anchor his case in a finding of CRPS, there is no persuasive evidence for that diagnosis. The two leading sets of criteria for CRPS are in Exhibit H: the "Budapest Criteria", and Table 17.1 of the SIRA "NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment". Clinical judgment is required in applying them. The criteria include subjective elements (the need for at least one reported symptom under each of the headings "sensory", "vasomotor", "sudomotor/oedema" and "motor/trophic"), and objective elements (signs observed by the clinician in those same areas), as well as an evaluative element ("[t]here is no other diagnosis that better explains the signs and symptoms"). Table 17.1 requires at least one sign in all four categories, whereas the Budapest Criteria only require at least one symptom in three or more categories.
Two experts were best qualified to make any diagnosis of CRPS. One was Prof. Cousins, a recognised world expert in CRPS, who treated the plaintiff in April 2017. He concluded, based on his examination - including "no increase in sweating", "no colour changes and no swelling" - that the plaintiff did not have CRPS. The other expert was rehabilitation physician Dr Dalton, retained by the defendants. Dr Dalton has a 40-year history of diagnosing, researching and treating CRPS in clinical practice. Based on his examination of 3 May 2022, Dr Dalton considered "there was clearly no evidence of muscle wasting, dystrophy or any signs of disuse in relation to his right upper limb and there were no trophic changes affecting his skin, nails or right arm"; consequently, the plaintiff presented no objective clinical signs of CRPS. That, as Dr Machart agreed, was confirmed by the surveillance footage, which was inconsistent with (significant) CRPS.
After a careful examination on 15 August 2019, Prof. Fitzsimons concluded, for similar reasons, that there was "no persuasive evidence" of CRPS. Prof. Fitzsimons was "certainly open to that diagnosis of CRPS" in the early stages, but "whether it has been ongoing" is another question, and the tremor "should be taken with a huge degree of diagnostic input in relation to diagnosis of CRPS." That is, the fabrication of the tremor suggests fabrication in other areas.
Significantly, none of the plaintiff's treating specialists diagnosed CRPS using the relevant criteria: 1. On 11 March 2016, orthopaedic surgeon Dr Kwa said "[t]he marked stiffness, pain, hand discolouration and tremor ma[y] suggest he has a developing Complex Regional Pain Syndrome." That was a suggestion, not a diagnosis, and did not address either set of criteria for CRPS. On 8 April 2016, Dr Kwa said "I believe he does have a Complex Regional Pain Syndrome", but did not supply any further details or analysis. 2. On 14 April 2016, pain specialist Dr Thong referred, in the "History" section of his report, to a "[c]omplex regional pain syndrome assessment as mentioned by D[r] Kwa" and added that "Mr Babayi stated that he has pain, sensitivity, tremor, sweating, swelling, temperature change, unclear if there is colour change." Dr Thong did not address either set of criteria for CRPS, he did not record any objective signs to support a diagnosis of CRPS, and to the extent he referred (on the following page) to "Diagnoses" including "Complex regional pain syndrome type 2 [the nerve injury type] affecting right forearm and hand", that could not be correct, because, as Dr Milder noted, any nerve issues (neuropraxia) were caused by anaesthetic, and they recovered. On 11 July 2016, Dr Thong noted "[t]he sympathetic features of the CRPS are less." On 24 August 2016, Dr Thong referred to "Diagnoses" including "[c]omplex regional pain syndrome with nerve injury" - that is, type 2, which is again incorrect. 3. On 5 May 2016, orthopaedic surgeon Dr Hughes "agree[d]…that this man appears to have a chronic regional pain syndrome". However, that was based entirely on the plaintiff's self-reported pain and movement limitations, rather than objective signs, and did not address either set of criteria for CRPS.
The first defendant submitted that to the extent doctors examining the plaintiff have, from time to time, recorded objective signs consistent with CRPS, those signs are minor, have fluctuated over time (which can happen for many reasons), and - on either set of CRPS criteria - they are not sufficient to diagnose CRPS: 1. The signs include a "slight purplish discolouration" of the right hand observed by Dr Kwa on 11 March 2016; a "cold and sweaty" right hand observed by Dr Hawke on 11 May 2016 (albeit not compared to the left hand); "muscle wasting right arm" recorded by Dr Thong on 27 July 2016; "generalised wasting of the muscles in the right arm and hand" (clarified as his "impression, there was a little bit of muscle wasting there"), and "temperature asymmetry and skin colour changes, oedema, sweating", observed by Dr Machart on 23 October 2019. 1. In contrast, there was "no serious [muscle] wasting observed" by a treating physiotherapist on 14 September 2016. On 11 July 2016, Dr Thong observed "[n]o temperature, colour or sweating difference between hands." On 12 April 2017, Professor Cousins recorded "no increase in sweating", "no colour changes and no swelling." On 15 August 2019, Prof. Fitzsimons observed no obvious or measurable wasting of the arm muscles, and no sweating or colour asymmetry. On 11 September 2019, Ms Dinley recorded that the plaintiff's right upper limb "was not observed to be coloured or sweaty"; and on 20 April 2022, she observed no muscle wasting, swelling, colour changes or sweating in the right hand and arm. On 3 May 2022, Dr Dalton observed "no evidence of muscle wasting, dystrophy or any signs of disuse in relation to his right upper limb and there were no trophic changes affecting his skin, nails or right arm."
In short, the first defendant submitted that the plaintiff has not consistently shown objective clinical signs that would support - and then only in part - a diagnosis of CRPS.
The first defendant submitted that ultimately the Budapest Criteria and Table 17.1 contain subjective as well as objective elements; and even the objective elements, such as "evidence of hyperalgesia…and/or allodynia" (heightened pain responses), or "evidence of decreased range of motion", depend on the plaintiff's subjective reports of pain, and their willingness to move their limbs. Thus, if the plaintiff's subjective reports are not accepted - and they should not be, Pak Farm submitted - then that undermines the diagnosis of CRPS. Further, under both sets of criteria, the final criterion is that "[t]here is no other diagnosis that better explains the signs and symptoms." The better diagnosis, in this case, is that the plaintiff is malingering: he is fabricating the tremor, pain, and extensive loss of movement in his right arm.
Finally, even if the plaintiff at some point had CRPS, or continues to have it, CRPS "could present as very mild or very severe", and so the diagnosis by itself would not "necessarily indicate loss of function or what degree of loss of function there is." The plaintiff's level of function is clear from the surveillance footage. If he had, or has, CRPS, it must be of the very mildest type. Further, any disability caused by CRPS is "a fairly constant feature" that is unlikely to fluctuate much over time. Thus, it is unlikely the plaintiff ever had severe, or even moderate, CRPS.
Given there is no persuasive evidence of significant physical disability or loss of function, there is also no evidence of significant psychological sequelae.
There are further reasons to prefer the evidence of Dr Wilcox over that of Dr Dinnen: 1. Dr Dinnen was reluctant to update his opinion based on the surveillance. He said "it requires a fair bit of…contrary information to challenge the original opinion you formed", and it was a "major step" to "challenge [his] clinical findings". This approach gives undue weight to the original diagnosis, rather than giving all the evidence the weight it deserves. 2. Dr Dinnen had a "particular view" that surveillance is "at best, a small window into the plaintiff", and is otherwise either "misleading and unhelpful", or "irrelevant." That gives inadequate weight to the surveillance in cases such as this, where it shows the plaintiff to be an unreliable historian who routinely engages in activities that are inconsistent with his claimed levels of disability. 3. While accepting the plaintiff had given consistent and unequivocal histories of constant pain and a useless right arm, Dr Dinnen then sought - in light of the surveillance - to reinterpret those histories as being accounts of intermittent pain and partial uselessness. He was resistant to the logical explanation that he had been deceived. Dr Dinnen also had trouble explaining the sudden onset of the tremor when the plaintiff saw Prof. Fitzsimons on 15 August 2019 (where the footage showed no tremor immediately before the appointment): he tried to explain this by comparing the plaintiff's tremor to an intention tremor, but then conceded it is not an intention tremor.

[74]

Pak Farm -The second defendant's submissions on the medical evidence

The second defendant submitted that although significant time was spent on whether the plaintiff had or has CRPS, to a large extent that might be more academic than of substance. It appears a diagnosis of CRPS is simply to provide an explanation, and some legitimacy, for a person complaining of continuing pain disproportionate to any causal event that otherwise cannot be explained by any other medical diagnosis.
The court would not accept the plaintiff to have had CRPS given the opinions of clear experts in the field, Professor Cousins and Dr Dalton, notwithstanding doctors that might have supported that diagnosis, including Dr Machart.
It is evident from the criteria, whether under Table 17.1 or Budapest, that the majority remain subjective and in particular involve acceptance of the patient's reports of pain and various identified symptoms. Even those criteria suggested to be "objective" still include the patient "displaying" signs which include decreased range of motion and sensitivity. In reality, they are "subjective" as evidenced by the assessments of Drs Guirgis, Milder and Machart, accepting the plaintiff to complain of effectively no movement and sensitivity in his right arm, whereas the genuinely "objective" surveillance evidence clearly proved those complaints to be knowingly false, as evidenced by the revised opinion of Dr Machart.
Importantly, none of the experts suggest that having CRPS, itself, says anything about consequential incapacity or disability. Dr Machart makes clear that it can be severe or mild and he specifically said that CRPS says nothing about functionality. That is, there can be very mild cases of CRPS which cause no relative loss of capacity.
In this case, Dr Machart concluded, based upon the surveillance and other reports commenting on it, that the plaintiff has either "no or minor disability" (4 [108] 1287) even if he did otherwise satisfy the criteria.
Consequently, it is submitted that it is probably of no consequence whether the plaintiff formally met the criteria for a diagnosis of CRPS at any stage, including now and no expert suggested that it could explain the plaintiff deliberately misleading the experts or the court.
The second defendant submitted that the surveillance was clearly of critical importance to the opinions of the defendants' medical experts. The plaintiff had support from doctors who had assessed him for the defendants including Dr Machart, Dr Wilcox, Prof. Fitzsimons and Professor Bright. However, all regarded the surveillance as evidence that the plaintiff had fabricated symptoms upon formal examination, and in reality displayed no relevant incapacity or disability. Whether there was some residual incapacity or a disability from the original injury was impossible to assess because it would still depend upon the acceptance of the plaintiff's subjective presentation.
The reluctance, of the experts qualified by the plaintiff, to accept the significance of video is difficult to understand given that it was entirely at odds with how he presented it to them. It was suggested that an examining doctor should accept what the patient says but that is not the role of a medicolegal expert and certainly not when the evidence disproves what was said.
The criteria involved in the diagnosis of CRPS are largely dependent upon subjective factors, and in particular, the patient's "reports" of pain and other symptoms, so that the veracity of those complaints is critical in the assessment.
Dr Dalton did not doubt that the plaintiff did not have CRPS in any event, irrespective of what was seen in the surveillance.
The experts qualified by the defendants maintained those positions in the conclaves and Dr Guirgis appeared to agree with Dr Dalton and Machart although he subsequently sought to withdraw from concessions he had made. That attempt was unpersuasive as was his failure to explain the absence of any findings on examination in any of his reports and, more significantly, the fact that in each of his reports the detailed assessment of the criteria for CRPS in fact established that the plaintiff did not satisfy the requirements for diagnosis of CRPS.

[75]

Complex Regional Pain Syndrome ('CRPS')

It seems that the development and risk factors for CRPS are currently not properly understood. CRPS usually develops after an injury or illness. This can be anything from a broken bone to something as innocuous as a bruise, getting blood taken, or an IV inserted. It can also be triggered by stressors on the body such as surgery, an infection, or a heart attack.
In relation to the plaintiff's diagnosis of CRPS, the parties referred to the diagnostic criteria stipulated in the Budapest criteria and Table 17.1 of the State Insurance Regulatory Authority Guidelines ('SIRA') ('Ex H').
The Budapest criteria (the less demanding test) is as follows: "… The patient must also report one symptom in three of the four following categories: Sensory (report of hyperesthesia (sic) or allodynia) - … Vasometer (sic) (temperature asymmetry and/or skin colour changes … Sudomotor/oedema - … Motor/trophic changes (decreased range of movement and/or motor dysfunction and/or trophic changes to the hair, skin, nails) - … The patient must also display at least one sign in two of the above four categories."
Table 17.1 of the SIRA Guidelines (the more demanding test) is as follows: "Complex Regional Pain Syndrome Type 1 For Complex Regional Pain Syndrome Type 1 (CRPS1) to be present for the purposes of assessment: a) the diagnosis is to be confirmed by criteria in Table 17.1 b) the diagnosis has been present for at least one year (to ensure accuracy of the diagnosis and to permit adequate time to achieve maximum medical improvement) c) the diagnosis has been verified by more than one examining physician d) other possible diagnoses have been excluded. e) CRPS1 is to be assessed as follows: ○ Apply the diagnostic criteria for complex regional pain syndrome type 1 (Table 17.1). Table 17.1 Diagnostic Criteria for Complex Regional Pain Syndrome types 1 and 2 states: 1 Continuing pain, which is disproportionate to any casual event. 2 Must report at least one symptom in each of the following four categories: i) Sensory: Reports of hyperaesthesiae and/or allodynia. ii) Vasomotor: Reports of temperature asymmetry and/or skin colour changes and/or skin colour asymmetry. iii) Sudomotor/oedema: Reports of oedema and/or sweating increase or decrease and/or sweating asymmetry. iv) Motor/trophic: Reports of decreased range of joint motion and/or motor dysfunction (tremor, dystonia) and/or trophic changes (hair, nail, skin). 3 Must display at least one sign* at time of evaluation in all of the following four categories: i) Sensory: Evidence of hyperalgesia (to pin prick) and/or allodynia (to light touch and/or deep somatic pressure and/or joint movement). ii) Vasomotor: Evidence of temperature asymmetry and/or asymmetric skin colour changes. iii) Sudomotor/oedema: Evidence of oedema and/or sweating asymmetry. iv) Motor/trophic: Evidence of decreased active joint range of motion and/or motor dysfunction (tremor, dystonia) and/or trophic changes (hair, nail, skin). 4 There is no other diagnosis that better explains the signs and symptoms * A sign is included only if it is observed and documented at time of the impairment evaluation. Then consider the following in assessing CRPS1: • If the criteria in each of the sections 1, 2, 3 and 4 in Table 17.1, above, are satisfied, the diagnosis of CRPS1 may be made. • Rate the extremity impairment resulting from loss of motion of each individual joint involved. • Rate the extremity impairment resulting from sensory deficits and pain, according to the grade that best fits the degree or amount of interference with ADL, as described in AMA5 Table 16.10a (p 482). Use clinical judgement to select the appropriate severity grade and the appropriate percentage from within the range shown in each grade. The maximum value is not automatically applied. The value selected represents the extremity impairment. A nerve value multiplier is not used. • Combine the extremity impairment for loss of joint motion with the impairment for pain or sensory deficit using the Combined Values Chart (AMA5, p 604) to obtain the final extremity impairment. • Convert the final extremity impairment to WPI using AMA5 Table 16.3, (p 439) for the upper extremity and AMA5 Table 17.3 (p 527) for the lower extremity."
Ultimately, the Budapest Criteria and Table 17.1 contain subjective as well as objective elements; and even the objective elements, such as "evidence of hyperalgesia…and/or allodynia" (heightened pain responses), or "evidence of decreased range of motion", depend on the plaintiff's subjective reports of pain, and their willingness to move their limbs. Thus, if the plaintiff's subjective reports are not accepted - and they should not be - then that undermines the diagnosis of CRPS. Further, under both sets of criteria, the final criterion is that "[t]here is no other diagnosis that better explains the signs and symptoms." The better diagnosis, in this case, is that the plaintiff is malingering: he is fabricating the tremor, pain, and extensive loss of movement in his right arm.
The orthopaedic specialists, the neurologists and the psychiatrists disagreed as to whether the plaintiff satisfies the criteria for a diagnosis of CRPS. In the end, I preferred the opinions of Dr Machart and Dr Dalton, the orthopaedic and rehabilitation experts, Prof. Fitzsimons, neurologist and Dr. Wilcox, psychiatrist, that the plaintiff did not on the balance of probabilities satisfy the criteria for CRPS. Below are my findings on the medical evidence.

[76]

Orthopaedic conclave evidence - Drs Marchart, Guirgis and Dalton, rehabilitation expert

I will now refer to the evidence of the orthopaedic rehabilitation experts, the neurosurgeons and the psychiatrist's evidence. Aside from the plaintiff suffering a physical injury that should have resolved in 3-4 months, there are differing opinions among the specialists.
At the time of the conclave, all of these medical experts assessed that the prognosis for this injury was expected to follow the clinical path of post-traumatic stiffness. The pain was not expected to be a feature beyond reasonable healing time, which, in Dr Machart's opinion, was 3-4 months. After that time, he expected the plaintiff to be back to usual activities. As I stated earlier in my judgment, this was common ground between these experts. These experts disagree with Dr Guirgis's diagnosis that the plaintiff is suffering from multiple lipomatosis, which itself would be associated with some sort of neurological disorder (Joint Report CB155). In any event, it is not relevant to the plaintiff's complaints and not related to the plaintiff's fall, so it can be disregarded.
Dr Dalton considered the involuntary movement at the time of assessment to be factitious and was indicative of functional overlay. He now considers, after viewing the surveillance footage, that the jerky movements are contrived, are non-organic, and are not related to the plaintiff's injury. Dr Dalton had formed the opinion that he did not consider that persistent neuropathic pain and CRPS are consistent with the level of function and mobility of the plaintiff which is clearly observed in the surveillance footage.
Dr Machart agreed with Dr Dalton. He also stated that the treatment the plaintiff was given was inappropriate as has been over-managed. The management was not part of standard medical treatment for this pathology of injury. Dr Guirgis considered that the extent of disabilities displayed are not consistent with the original injury. Dr Guirgis stated that if a patient presents to the treating doctor or specialist with a problem, the treating doctor should handle that problem to the best of his ability. Dr Guirgis stated, we are talking here about managing chronic pain syndrome in a patient who might be or might not be suffering from pain behaviour and as such he would acknowledge that treating specialists and doctors were doing the right thing.
During cross-examination by Videolink from Rome, Dr Guirgis was asked how he could diagnose the plaintiff with CRPS in applying table 17.1, despite the plaintiff failing to present with the requisite diagnostic criteria. He replied that as an orthopaedic surgeon "It's my privilege that I have clinical experience to do it", "the guides are only guides" and "if it looks like a duck, walks like a duck and quacks like a duck, it is a duck." (T533.39-47). I find his evidence to be unimpressive. I prefer the opinion of Drs Dalton and Machart. His medical reports were lacking in substance. He did not record his clinical findings upon examination of the plaintiff when he wrote his reports.
In relation to the diagnosis of CRPS, Prof. Fitzsimons referred to the report of Dr Guirgis dated 29 March 2022 in which Dr Guirgis went through the criteria for diagnosis of CRPS. In that report on page 5 at section 3 and noted that Dr Guirgis does not place a tick against the criteria for ''Sudomotor/oedema: Evidence of oedema and/or sweating asymmetry". The absence of that criteria from the plaintiff's presentation, in the context of a diagnosis of CRPS, is significant.
It is Prof. Fitzsimons' opinion that the reason that CRPS requires the satisfaction of a number of criteria before a diagnosis is made is because many of the criteria can have alternative explanations. Hence the significance of the absence of a tick next to the criteria "Sudomotor/oedema: Evidence of oedema and/or sweating asymmetry" by Dr Guirgis in his report dated 29 March 2022. I agree.
Dr Machart, the treating orthopaedic surgeon who prior to viewing the surveillance thought that the symptoms and disability presented to him at examination were so severe, then summarised as a completely useless right arm. After viewing the surveillance footage, Dr Machart changed his view and concluded that was not consistent with the pathology of injury (CB155). when asked by Counsel for the first defendant about the surveillance video, he concluded that he had been deceived by the plaintiff stated that he certainly found a lot of discrepancies and it was certainly suggestive that he had been misled (T534.44-535.3).

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Neurologist expert evidence - Dr Dan Milder and Prof. Robin Fitzsimons

Below is a summarised version of the Joint Expert Conclave Report of Neurologists Dr Dan Milder and Prof. Robin Fitzsimons, dated 17 August 2022. It was written prior to viewing the surveillance. After viewing the surveillance Prof. Fitzsimons changed her opinion.
There the experts noted that the plaintiff would have suffered physical symptoms and disabilities, however, they have limited their comment to the neurological aspects.
Dr Milder and Prof. Fitzsimons were asked to respond to whether the plaintiff's symptoms and disabilities caused by the accident were proportionate to or consistent with the injuries he sustained, the objective clinical signs, and the surveillance footage.
Prof. Fitzsimons noted that her last assessment of the plaintiff took place in the second half of 2019 and therefore her opinion in relation to this question is based on that assessment, as well as subsequent documentation with which she has been briefed, including surveillance footage. Dr Milder noted that his last assessment of the plaintiff took place on 19 July 2022.
As at 19 July 2022, Dr Milder reported that the plaintiff suffered severe pain within the right upper limb, predominantly within the upper arm, present daily throughout the day, increasing with movement. Movements of the right shoulder were markedly restricted. A tremor in the fingers of the right hand was present throughout the day and increased with stress. Perspiration may be present within the palmar surface of the right hand. A discoloration of the palmar surface of the right hand was present. Numbness was present within the fingers of the right hand.
Dr Milder opined that the reported symptoms and disabilities of the patient are consistent with a possible consequence of the injuries sustained and the objective clinical signs. Dr Milder also concluded that they are not inconsistent with the surveillance footage.
Prof. Fitzsimons was very precise when giving her evidence. She referred to her notes and considered the question and her notes before answering. She assessed the plaintiff in the second half of 2019, and then subsequently viewed video surveillance. Prof. Fitzsimons noted that Dr Milder reported that perspiration may be present on the palm surface of the plaintiff's right hand and discolouration on the right hand was present.
Prof. Fitzsimons observed that this was not a workers compensation matter to which medical assessment criteria for whole person impairment applies, but if it were to apply, then she considered that it is doubtful that the plaintiff would satisfy the criteria for a diagnosis of Complex Regional Pain Syndrome (CRPS). Prof. Fitzsimons considered that the plaintiff did not satisfy the criteria for a diagnosis of CRPS at the time she assessed him. Further Prof. Fitzsimons noted that the plaintiff did not satisfy the criteria for such a diagnosis when other doctors such as Prof Michael Cousins saw him.
Prof. Fitzsimons also noted that the plaintiff complained of pain when she assessed him. In relation to the plaintiff's tremor, Prof. Fitzsimons stated that it was open to question whether that tremor is caused by the accident. On that issue, Prof. Fitzsimons noted that the plaintiff's treating neurologist, Dr Simon Hawke, reported that the plaintiff's tremor was an enhanced physiological tremor made worse by pain and of no consequence.
She also gave evidence that what she observed during her examination of the plaintiff was that it was a gross tremor, not a minor tremor, and that it was memorable. She recorded that this tremor was absent in the surveillance footage that she reviewed, and the plaintiff was filmed pouring tea, an act which would not be possible if the plaintiff suffered the gross tremor, she observed during her examination.
She rightly identified contentious issues among the experts as to whether the tremor was caused by the accident. She observed that Dr Guirgis used what she considered was slightly selective use of the literature on this issue to argue that the accident was a cause before discounting that possibility using unusual phraseology. Prof. Fitzsimons referred to the report of Dr Guirgis dated 26 July 2022 where he stated: "To avoid confusion and fruitless argument, one would discard the PIMD [Peripherally Induced Movement Disorder] from the equation dealing with his traumatic incident."
Her conclusion was that she did not consider that the tremor arises from the injuries the plaintiff suffered in the accident. Prof. Fitzsimons observed that the tremor was absent in the surveillance footage she viewed.
I have already made my finding that I prefer the opinions of Drs Machart and Dalton to that of Dr Guirgis.
Prof. Fitzsimons was of the opinion that the plaintiff did not have CRPS and additionally, the tremor does not arise from any injury suffered by the plaintiff in the accident.
Counsel for the plaintiff asked Prof. Fitzsimons whether the plaintiff had suffered CRPS for a short time. She left open the possibility that there were earlier signs, which were not present she saw him (T452.25-30) (my emphasis).
In relation to the issue of consistency (or otherwise) between the plaintiff's presentation on assessment and what was captured in the surveillance footage. Dr Milder remained of the opinion that what he observed in his assessment of the plaintiff is not inconsistent with what was captured in the surveillance footage. He pointed out that the surveillance footage is consistent with some degree of use of the right limb and that any disability need not be evident on the video footage. Dr Milder also noted that there was some footage of the plaintiff sitting at a table with other people and in another video the plaintiff was shown emerging from a car. None of that negates that the plaintiff may be suffering a disability.
Prof. Fitzsimons opined that if there is a tremor present there is a question of whether it was organically mediated as a consequence of the accident, in which case it would be a standalone disability. Dr Milder expressed the opinion that the tremor was a disability but that it bore no significance in terms of determining whole person impairment.
Dr Milder stated that it appeared that the tremor was absent in the surveillance footage but a tremor is not necessary in order to make a diagnosis of CRPS. Also, Dr Milder stated that tremors can be intermittent and may vary, for example, tremors that come with the end of the day. As to whether the tremor was caused by the accident he opined is another matter. The plaintiff reports that he has a tremor and also that he did not have it before the accident so he considered that there was a case to be made that in some way the injuries sustained have resulted in a tremor and one can argue the basis of this: whether it is physiological, post traumatic or psychosomatic. However, according to Dr Milder the plaintiff has said that it has only been present since the accident. Further, it is not a factor considered by Dr Milder in coming to his diagnosis of CRPS. In other words, Dr Milder accepted the plaintiff's history as reported to him.
Dr Milder expressed the opinion that the plaintiff suffers Complex Regional Pain Syndrome, Type 1. Dr Milder added that the features of the condition are severe disabling pain, present both spontaneously and in response to touch, clinical signs of vasomotor (vascular) and sudomotor (perspiration) "instability" and change in associated tissue characteristics.
He also observed asymmetry in the sense of mottled discolouration and sweating in that he observed a greater degree of sweating on the right-hand side. Those features that he gave evidence on were noted on both occasions he examined the plaintiff.
Prof. Fitzsimons noted that the observations of Prof. Cousins and other practitioners were similar to her observations. Taken together, she considered that these observations raise questions as to the aetiology of the signs and symptoms that were observed and also the accuracy of any CRPS diagnosis.
Prof. Fitzsimons agreed that physiological tremors can vary in severity but she observed that the tremor she witnessed was a very gross tremor and to go from that to a complete absence of any tremor in the surveillance video, she considered that this stretched the grounds of plausibility. It comes down to whether this is organically determined or non-organic, or whether it is voluntary or involuntary.
She observed that it is often notoriously difficult to determine whether a disorder is voluntary or involuntary, as they are very difficult to distinguish. She continued that the tremor was so gross that she felt for that reason alone that the cause was likely to be non-organic. Her observation was that the tremor was so gross that it did not correspond with any disorder or condition that she thought was likely to have an entirely organic consequence. She also observed that Dr Hawke expressed a similar idea in different language.
In short, as to resolution of any tremor that is of non-organic origin, Prof. Fitzsimons considered this to be an issue for psychiatric consideration, rather than neurological consideration.
Dr Milder opined that the clinical management of pain, including the medications prescribed, is adequate. Dr Milder stated that he was not in a position to comment on the medication regimen involving use of the antidepressants He added that the plaintiff's current medication is Lyrica, Targin and Panadol, as well as an antidepressant which the plaintiff could not name. Prof. Fitzsimons expressed the opinion that the use of Targin (an opiate medication comprising oxycodone with naloxone), particularly the length of time that it has been used by the plaintiff, is a matter of concern because Targin is an opioid. Its use comes down to whether the orthopaedic treaters/experts consider it necessary to treat the plaintiff. She was unsure whether the plaintiff remains under the care of a treating pain specialist but opined that, if not, the plaintiff requires review by a pain specialist and considered this very important.
Further, Prof. Fitzsimons opined that the chronic use of opiates should be reviewed and avoided if possible. Dr Milder agreed. Finally, Prof. Fitzsimons added that other pain management strategies should be considered. Dr Milder and Prof. Fitzsimons were asked to give their diagnosis of the plaintiff's condition (if any) caused by the accident, including whether he suffers from CRPS and if he did, what were the characteristics of this condition.
Dr Milder and Prof. Fitzsimons were asked to describe the plaintiff's prognosis. Dr Milder expressed the opinion that that outlook is poor and that further improvement was unlikely. Prof. Fitzsimons' opinion was that she does not consider the plaintiff suffered from any diagnosable neurological condition. She repeated her earlier opinion. To the extent that the tremor has a psychological basis, then it should be addressed by a psychiatrist or psychologist.
Dr Hawke, a neurologist, in his report dated 21 August 2017 stated "as far as the tremor is concerned, he thought it was an enhanced physiological tremor made worse by pain and of no consequence".
As to the plaintiff's complaint of ongoing pain reported at the assessment with Prof. Fitzsimons, at that time the plaintiff reported pain in the elbow and also in the right shoulder (but not as severe as the pain in the elbow).
Prof. Fitzsimons recorded in her previous assessment that the plaintiff was unable to work with that inability being associated with right arm pain. His wife does all the housework whereas he reported that he helped before the accident. The plaintiff had reported to her that he only drives the car a little, only to the shops and that he no longer does the gardening.
Prof. Fitzsimons then recorded her observations of what the plaintiff can do from the surveillance footage many of which have been discussed already: 1. He was filmed opening the door of a car using his right arm; 2. He carried boxes of food in his left hand; 3. On 15 August 2019 (the day Prof. Fitzsimons examined him) and before her examination, he was filmed as the front seat passenger in a car, he gets out of the car and slammed the car door shut with his right arm; 4. On the same day he is seen at McDonald's grabbing tissues with his left hand and seen carrying a McDonald's cardboard box; 5. On the same day he is on what appears to be Macquarie Street (the street where Prof. Fitzsimons' room is located), with both arms outstretched and he is also seen using his phone; 6. On 11 January 2020, he is filmed flexing his right elbow to attend to his nose; 7. The plaintiff was filmed cleaning his car by throwing a bucket of water over the car with his right arm at an elevated level at about 110°; 8. On 11 January 2020, the plaintiff was filmed at a social gathering at a café, standing up and greeting people extending arms forward. He was also filmed using both arms to assist him getting out of the chair and was also filmed with his right arm frequently flexed to about 20°; 9. The plaintiff was also seen lifting a teapot and pouring tea for several of those present, an action one could not perform with a significant tremor.
Prof. Fitzsimons is satisfied that there was no tremor observed at all (not even an intermittent tremor) in any of the footage she has mentioned above. She noted that the surveillance footage, when taken altogether, seems to give an overall appearance that the plaintiff has a preference for using his left arm for tasks such as carrying lightweight produce.
She added that when she examined the plaintiff last, over 2 years ago, she made no observations of sweating asymmetry when she specifically examined the plaintiff and that she recorded the following observations in her report; "I carefully examined the palms for any relative change in sweating. Sweat was visible on both palms. There was no change in colour. There were no abnormalities of the nails, and I [sic] not detect any changes in hair distribution. Temperature felt normal on both hands. I concluded that there was no persuasive evidence of chronic regional pain syndrome [CRPS]."
She also considered the possibility of specific nerve injuries and she did not find any evidence in her examination which would support that diagnosis. Therefore, from a neurological perspective, Prof. Fitzsimons considered that the plaintiff did not have any diagnosable condition.
Dr Milder disagreed with Prof. Fitzsimons' observations when he examined in those occasions, the plaintiff recorded that he observed asymmetry in the sense of mottled discolouration and sweating in that he observed a greater degree of sweating on the right-hand side. Dr Milder expressed the opinion that the symptoms and disabilities have not resolved and, further, they are likely to persist.
Dr Milder expressed his opinion that that outlook is poor and further improvement is unlikely.
Prof. Fitzsimons refers to her previously expressed opinion regarding diagnosis, in particular, that she does not consider the plaintiff suffers from any diagnosable neurological condition. She repeated her earlier opinion to the extent that the tremor has a psychological basis, then it should be addressed by a psychiatrist or psychologist.

[83]

Psychiatric evidence

Below is a summarised version of the psychiatric evidence of Drs Rosalie Wilcox and Anthony Dinnen in their joint expert report and their evidence given in conclave dated 25 July 2022.
Dr Dinnen opined that the clinical features of the plaintiff's psychiatric condition is that it is chronic, and he also considered that the plaintiff gave a consistent account of his injuries and ongoing symptoms.
Dr Wilcox stated that, in her opinion, the plaintiff provided a consistent account of chronic disabling pain, persistent tremors and chronic depression. She went on to say that the plaintiff also consistently indicated that no intervention had been helpful. The plaintiff provided her with a consistent account that his situation has become worse over time, rather than better over time.
Dr Dinnen recounted that he has assessed the plaintiff a total of three times: the initial consultation was a face-to-face consultation, followed by a Zoom interview in May 2022 and then a further face-to-face consultation in July 2022. Dr Dinnen agreed with Dr Wilcox that the plaintiff provided a consistent account of his injuries and ongoing symptoms and stated that the main focus of the history provided to him was regarding his mental health issues and, in that vein, the plaintiff provided consistent accounts of depressed mood, lack of confidence, all of which are consistent with a depressive illness.
The plaintiff provided him with a history of chronic pain, a persistent tremor and also that he could not use his right arm effectively, all of which is consistent with the history that the plaintiff seems to have provided to Dr Wilcox. Consistent with what the plaintiff had reported to Dr Dinnen, Dr Wilcox stated that he reported to her a history of persistent low mood, severe social isolation in that he did not mix with anyone, and a restricted lifestyle, as a consequence of his chronic pain and depression.
Dr Dinnen recounted that he does not think that in his assessments he focused so much on the issue of social isolation, but that he was more struck by the ongoing domestic conflict and problems in the marriage, as well as the plaintiff having feelings of worthlessness and uselessness. Dr Wilcox reported that the plaintiff also informed her that his depression was affecting his marriage because he was irritable, he was arguing a lot with his partner and there was a general level of frustration in the relationship.

[84]

The psychiatrists' opinion of the surveillance

More importantly, is whether the surveillance footage is consistent with the plaintiff's physical injuries, Dr Wilcox opined that the surveillance footage was not consistent with the history provided by the plaintiff and that the plaintiff is clearly not as disabled as he represents. She agrees that in the surveillance footage, the plaintiff does not sit in pain, he did not display restricted movement of his arm, he was observed meeting up with people on many occasions, he seems to have several groups of friends and also appeared to be able to use his right arm freely and that there was no visible tremor and he was depicted in surveillance footage going shopping without his wife, as well as driving his car. These were activities that the plaintiff had reported to her that he could not perform.
Dr Dinnen disagrees with the opinion of Dr Wilcox. He stated that having recently viewed the surveillance footage, his impression that it was apparent that the plaintiff could certainly use his right arm from time to time and there was not an obvious tremor visible on the footage. However, Dr Dinnen stated that he did not consider that one could tell from watching a surveillance video whether the plaintiff was in pain or whether he was depressed. He stated upon his explanation to state that he was unsurprised that the plaintiff had friends and recounted that the first time he assessed the plaintiff he reported to him that he had support from friends from his own country during his first five years in Australia and that he still met with these people.
Therefore, Dr Dinnen did not consider that footage of the plaintiff meeting with others is a significant element in the context of this case. Dr Dinnen expanded and stated that in the context of the plaintiff's statement, as well as the statement provided by his friend Mr Qamberi, the content of those statements is consistent with what appears in the surveillance footage. For example, from the plaintiff's statement, he said that he could lift weights of one and a half to three kilograms with his right arm and that the tremor varied. Dr Dinnen did not consider that overall, the surveillance footage was inconsistent with the contents of the plaintiff's supplementary statement provided recently, or the information in the statement from the plaintiff's friend, Mr Qamberi, or the information provided to Dr Dinnen by the plaintiff during his assessments of him. I interpose here, as I have already recorded that I found Mr Qamberi's evidence unreliable.
In reply, Dr Wilcox said that disagreed with Dr Dinnen's opinion. She observed that in her assessments of the plaintiff, he portrayed himself as having a very extreme tremor, however, that tremor was not present at all in any of the surveillance footage that she watched.
As to that opinion, Dr Dinnen stated that in one part of the surveillance footage where the plaintiff was seen with a group of friends, his right arm was in his lap for long periods of time. Dr Dinnen repeated his opinion that the surveillance footage of the plaintiff was not at odds with the accounts that he was given during his assessments and also contained in the plaintiff's statement.
In contrast, Dr Wilcox stated her viewing of the surveillance footage caused her to revise her previous opinion that the plaintiff was a reliable historian because the accounts that he provided to her during her assessments were very extreme in relation to matters such as the extent of his social isolation, for example, he stated that he rarely left the house and this was not what was depicted in the surveillance footage.
On this issue, Dr Dinnen stated that he considered that it depended on the interaction between the patient and the psychiatrist and went on to observe that patients will often say, "I can't use this arm," when in fact, the patient means that in a general sense as an overall description of a disability, rather than a specific one or a day by day or hour by hour account. Dr Dinnen went on to state that, as another example, when people say, "I'm socially avoidant," it does not mean that they are necessarily trapped at home but that they generally avoid social interaction. Overall, Dr Dinnen considered that this was the problem with surveillance videos with the end result being they can be misleading.

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Diagnosis

Dr Wilcox stated that if one were to accept that the plaintiff was a reliable historian and that his level of function was truly restricted, she would maintain her original diagnosis that he has a diagnosis of a somatoform disorder because his presentation when she assessed him has been one where he has been predominantly preoccupied with pain, expressed anxiety about pain and also complained how pain affects his life and a secondary Major Depressive Disorder. However, Dr Wilcox went on to opine that given that she has now viewed the surveillance footage, she no longer considers the plaintiff to be a reliable historian and she has difficulty with maintaining the previous diagnoses as she has reservations regarding the accuracy of his accounts because, in her view, the surveillance footage contributes to an impression that the plaintiff's level of function is not as impaired as he claims.
Dr Wilcox went on to state that, with regards to factitious disorder and functional neurological disorder, those conditions are what would be called a conversion disorder where a person receives a shock and then they experience physical symptoms (for example, blindness or an inability to walk). In this case, people might say that the plaintiff has functional neurological symptom disorder on the basis he has this tremor that cannot be explained (referring to the report of Dr Dalton). However, if the tremor is fabricated then the plaintiff does not have a Functional Neurological Symptom Disorder because it is a tremor that is deliberate. Dr Wilcox expressed the opinion that, from her observations of the surveillance footage compared to her observations during an assessment of the plaintiff, the tremor is neither subconscious or unconscious and is totally fabricated and, therefore, Dr Wilcox concluded that the plaintiff does not have a Functional Neurological Symptom Disorder.
Dr Dinnen agreed with Dr Wilcox to the extent that if the surveillance video does give rise to a finding that the plaintiff's complaints are inconsistent with what can be observed from the surveillance footage, that could give rise to a diagnosis of factitious disorder or malingering. While Dr Dinnen does not agree that is likely, given his view of what the surveillance footage shows, he cannot rule out that this may be the case. Dr Dinnen went on to observe, however, that as Dr Wilcox had pointed out, malingering is very difficult to prove unless a patient actually tells you that they are malingering because it is an exclusionary diagnosis.
Dr Dinnen adhered to his opinion that the plaintiff suffers from a Major Depressive Disorder, which he says also really encompasses a depressive disorder due to physical injury, which was his initial diagnosis in the first assessment, with the major depressive disorder being diagnosed subsequently. Dr Dinnen therefore considers those two conditions as one. Dr Dinnen also opined that there is a degree of disproportionality between the plaintiff's condition as he discloses and the physical causes for that condition, as has been asserted by various experts. Therefore, Dr Dinnen would say that the plaintiff also suffers from a functional neurological symptom disorder.

[88]

Summary of my findings in relation to the medicolegal evidence

In summary, it is common ground that the plaintiff in the fall suffered from a dislocation of the right elbow and a non-displaced fracture of the right radial head that should have resolved in 3 to 4 months.
As to his other current injuries and disabilities including psychiatric diagnoses, having had regard to all the medical evidence before me, I am of the view that the plaintiff does not suffer from CRPS or at best according to Prof. Fitzsimons, he suffered for a short while.
On the balance of probabilities, the medical evidence supports the conclusion that the plaintiff does not currently suffer from CRPS. Central to the medical practitioners' diagnoses is their opinions after having viewed the surveillance. I have recorded my opinion in detail earlier in this judgment. It is my view, he has deliberately portrayed himself as seriously disabled, when in reality he is not. The surveillance footage showing the plaintiff performing various acts without the presence of the tremor is inconsistent with medical evidence of CRPS symptoms.
Prof. Fitzsimons noted that the plaintiff's tremor was a gross tremor, a gross tremor completely absent from the surveillance videos. I agree with Prof. Fitzsimons' opinion. However, she thought that there may be a psychiatric explanation for this, so I need to consider the psychiatric opinion.
When examined by the psychiatrists, the plaintiff gave "a consistent account of chronic disabling pain, persistent tremor and chronic depression", and that "he could not use his right arm effectively". As Dr Wilcox noted, those reported symptoms are inconsistent with the surveillance footage, which shows the plaintiff "is clearly not as disabled as he represents" - which undermines any psychiatric diagnosis based on the claimed psychological consequences of those claimed (but fabricated) symptoms. This reasoning is compelling. In contrast, Dr Dinnen's diagnoses of functional neurological symptom disorder, somatic symptom disorder with predominant pain, and major depressive disorder, relied upon accepting the plaintiff as a reliable historian, and should therefore be rejected.
Prof. Michael Cousins, a recognised expert in rehabilitation medicine was of the view that the plaintiff did not have CRPS. Dr Dalton agreed with the opinion of Prof. Fitzsimons. Dr. Machart, who had initially diagnosed the plaintiff with CRPS conceded, after viewing the surveillance video, that the plaintiff did not suffer from CRPS. Hence, I prefer the evidence of Prof. Cousins, Prof. Fitzsimons, Dr Dalton, Dr Machart and Dr Wilcox that the plaintiff did not meet the diagnosis of CRPS set out in the less demanding Budapest test or Table 17.1. SIRA guidelines.

[91]

The plaintiff's submissions

The plaintiff suffered an injury that had unexpected consequences for him. The defendants will submit that he has greater functional capacity than is depicted in the footage. However, he accepted that this was correct in his second statement. He was not cross-examined on that statement.
The plaintiff said the medication reduces the pain which decreases the shake of the hand (T 44.45, T 46.39-.50, T 47.06). While the plaintiff said he could not explain that since the time of the accident, his arm is always shaking such as set out at T 58.34-.45, he does provide an explanation about pain medication (T 59) and further at T 60.30 he stated when he is under pressure and stressed, the shakiness increases (T 60.32). He said he told doctors it shakes when he is under stress (T 60.37). In this regard, there was clearly a potential for ambiguity which was the subject of objection that was overruled (T 61.36). The fact is this man did not suffer from a tremor prior to the accident and has suffered from a tremor after the accident.
He also claimed he had problems with his memory (T 75.21). This is corroborated in the medical material.
In a report of Dr Gordon dated 24 February 2016, it was noted the tremor was not present at rest. This was taken into by Dr Dinnen at 2 CB 445. In Prof Hawke's report dated 21 August 2017, he noted, in my view there was a clear functional overload … as far as the tremor was concerned, I thought it was an enhanced physiological tremor made worse by pain and of no consequence. This was addressed by Dr Dinnen at T 445.
In Dr Harvey's report dated 20 August 2019, he noted the plaintiff has developed grossly abnormal pain responses and I do not believe that the very coarse tremor of the right upper limb can be explained based on any physical muscular skeletal injury. Normally, it would be anticipated that a person with an injury of this kind would be able to return to normal work within about three months (referred to in the report of Dr Dinnen (2 CB 452)).
Prof. Fitzsimons identified in a report dated 24 August 2021, the gross tremor exhibited when she him but not shown in the footage was not an organic consequence of the accident (referred to by Dr Dinnen at 2 CB 460). She went on to diagnose the Plaintiff as suffering from a somatoform symptom disorder with predominant pain and major depression.
In his report dated 28 May 2022, Dr Dalton identified considerable functional overload abnormal illness behaviour and that the plaintiff is not as disabled as he portrays.
On assessment in the clinical notes of RNSH Pain Clinic, there were noted to be high levels of pain behaviours including the cradling of the arm. It was noted (2 CB 845) understanding of pain vein and elbow was damaged, hence pain, fear of pain increasing. The pain descriptors were constant pain, and dull ache if not moving. Increase in pain with movement/activity. Aggravating factors exercise, using right arm, stress or thinking too much, and getting cranky with kids. Coping strategies were noted to be extra medications for flare up of pain or goes to the doctor and asks for more medications otherwise nothing.
He was also noted to have financial stress, major family stress, relationship stress and he had a sense of shame around his tremor and disability (2 CB 840). It was also noted (2 CB 836) stress was an aggravating factor to pain.
In these circumstances, where the plaintiff has been feigning his physical injuries, I do not consider that he has any psychological or psychiatric diagnosable condition arising from the accident.

[94]

Economic Loss - Past and future

Sections 12 and 13 of the Civil Liability Act 2002 (NSW) provides for damages for past or future economic loss. They read: "12 Damages for past or future economic loss - maximum for loss of earnings etc (1) This section applies to an award of damages: (a) for past economic loss due to loss of earnings or the deprivation or impairment of earning capacity, or (b) for future economic loss due to the deprivation or impairment of earning capacity, or … (3) For the purposes of this section, the amount of average weekly earnings at the date of an award is: (a) the amount per week comprising the amount estimated by the Australian Statistician as the average weekly total earnings of all employees in New South Wales for the most recent quarter occurring before the date of the award for which such an amount has been estimated by the Australian Statistician and that is, at that date, available to the court making the award, or …" 13 Future economic loss - claimant's prospects and adjustments (1) A court cannot make an award of damages for future economic loss unless the claimant first satisfies the court that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant's most likely future circumstances but for the injury. (2) When a court determines the amount of any such award of damages for future economic loss it is required to adjust the amount of damages for future economic loss that would have been sustained on those assumptions by reference to the percentage possibility that the events might have occurred but for the injury. (3) If the court makes an award for future economic loss, it is required to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted."
In Husher v Husher [1999] HCA 47; (1999) 197 CLR 138, the court expressed the general principle in relation to an award for economic loss at [7] as follows: "[7] Since at least Graham v Baker it has been recognised that it is convenient to assess an injured plaintiff's economic loss "by reference to the actual loss of wages which occurs up to the time of trial and which can be more or less precisely ascertained and then, having regard to the plaintiff's proved condition at the time of trial, to attempt some assessment of his future loss." But damages for both past loss and future loss are allowed to an injured plaintiff 'because the diminution of his earning capacity is or may be productive of financial loss'. Both elements are important. It is necessary to identify both what capacity has been lost and what economic consequences will probably flow from that loss. Only then will it be possible to assess what sum will put the plaintiff in the same position as he or she would have been in if the injury had not been sustained."
Also in State of NSW v Moss (2000) 54 NSWLR 536 ('Moss') at 559, Heydon JA at [87] said: "[87] The task of the trier of fact is to form a discretionary judgment by reference to not wholly determinate criteria within fairly wide parameters. Though the trier of fact in arriving at the discretionary judgment must achieve satisfaction that a fair award is being made, since what is involved is not the finding of historical facts on a balance of probabilities, but the assessment of the value of a chance it is appropriate to take into account a range of possible outcomes even though the likelihood of any particular outcome being achieved may be no more than a real possibility."

[99]

The first defendant's submissions

As to future economic loss, the first defendant submitted that doing the best one can, the plaintiff's earning capacity has been reduced by no more than $5,000 net per year, or $96.15 per week, including superannuation. The calculation is then: $96.15 x 597.5 (multiplier for 16 years until retirement) x 85% (discount for vicissitudes) = $48,832.18, which may be rounded up to $50,000. That figure may also be justified as a buffer (with the amount reflecting the plaintiff's modest injuries, modest earning capacity before the injury - he does not appear to have reached the tax-free threshold - and 16 years to retirement): see Moss, [87]; Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99, [84]; Clancy v Plaintiffs A, B, C and D [2022] NSWCA 119, [276]-[277] ('Clancy').
The plaintiff arrived in Australia in 2010. He does not appear to have earned any income in the 5 or 6 years before the pruning job with Pak Farm. For example, he "did not earn any money from [the travel agency] business". He has not produced any tax returns showing income before the Pak Farm job. The Pak Farm job was itself a seasonal, one-off job; and the Pak Farm invoice indicates its work for Eden Park only went for 8 days, from 15 January 2016 to 22 January 2016. There is no evidence that Pak Farm ever did any further work, or that the plaintiff was ever likely to receive any further work through Pak Farm or anyone else. He is a seasonal unskilled worker with limited English and a minimal work history - on the evidence, of two days of paid work the plaintiff's claim for economic loss must be rejected to the extent it assumes - without evidence - that he would have been employed full-time since the accident and into the future.
The plaintiff's Pak Farm payslip dated 25 January 2016 indicates the pruning work paid $1.72 per tree, with about 200 trees being pruned per day, giving $344 gross per day. Gross figures may be used because it is unlikely the plaintiff would ever have exceeded the tax-free threshold. If he had worked 8 days for Pak Farm, he would have received $344 x 8 = $2,752 gross. His actual gross earnings, according to the payslip, were $765. The difference is then $2,752 less $765 = $1,987. It may be assumed - generously, because there is no evidence for it - that, but for the injury, he would have picked up another similar pruning job, worth $2,752 gross, in the six months after his injury (before being fit to work again). Past economic loss is then $1,987 + $2,752 = $4,739. That may be rounded to $5,000. Superannuation should not be separately assessed, because the plaintiff has not generated, nor was he likely to generate, superannuation.
The evidence does not establish any incapacity, or reduced capacity, that would justify an award for future economic loss. But for the accident, the plaintiff would have been limited to odd jobs and seasonal work. That remains so. There is no loss.

[100]

Resolution

The plaintiff performed low skilled and seasonal physical work. He has a limited grasp of the English language. But for, the accident his future earning capacity would be limited to odd jobs and seasonal work. The plaintiff has some minor restrictions with the use of his right shoulder and arm. The plaintiff may not be able to climb ladders for tree pruning and fruit picking. The plaintiff could return to full-time work, but some restrictions with heavy lifting and manual handling would apply due to ongoing stiffness in the elbow. His only difficulty would be with those jobs which involve an extension of the elbow and, as Dr Machart said, with reaching above shoulder height, but other than that Dr Dalton and Dr Machart would not place any other restrictions upon future earning capacity.
In Zreika v State of New South Wales [2009] NSWCA 99 ('Zreika'). The Court of Appeal (Beazley, Ipp and MacFarlan JJA) stated at [29], [38] and [43]: "[29] The implications that s 13 [of the Civil Liability Act] has on the power of a court to award a buffer for future economic loss were discussed in Penrith City Council v Parks [2004] NSWCA 201. Giles JA (with whom Cripps AJA agreed) said (at [5]): "I consider that it is still open to assess damages by way of a so called 'buffer'. The occasion for a buffer is when the impact of the injury upon the economic benefit from exercising earning capacity after injury is difficult to determine. There is still a comparison between the economic benefits, although the difference can not be determined otherwise than by the broad approach of a buffer. Section 13(1) can be fulfilled, and the assumptions as to exercising earning capacity before injury can be stated." … [38] In State of New South Wales v Moss [2000] NSWCA 133; (2000) 54 NSWLR 536, Heydon JA said (at [87], 559): "In short, where earning capacity has unquestionably been reduced but its extent is difficult to assess, even though no precise evidence of relevant earning rates is tendered, it is not open to the court to abandon the task and the want of evidence does not necessarily result in non-recovery of damages. … The task of the trier of fact is to form a discretionary judgment by reference to not wholly determinate criteria within fairly wide parameters. Though the trier of fact in arriving at the discretionary judgment must achieve satisfaction that a fair award is being made, since what is involved is not the finding of historical facts on a balance of probabilities, but the assessment of the value of a chance, it is appropriate to take into account a range of possible outcomes even though the likelihood of any particular outcome being achieved may be no more than a real possibility." (Citations omitted). … [43] In my view the appellant should be awarded what McClellan AJA in Penrith City Council v Parks (at [58]) called "[a] modest award as compensation for the chance that a claimant may be disadvantaged in the future because of the injury". That involves the award of a buffer."
As discussed already, prior to the accident, the plaintiffs had undertaken intermittent unskilled work. Since 2010 after he arrived in Australia, he did odd jobs and started a business with a friend buying wrecked cars and removing parts to sell as scrap metal. In 2013, the plaintiff entered into a partnership to start a travel agency business called Flights Haus. While he was a director of the company for 2 years, he did not earn any income from that business. From the plaintiff's evidence, it is difficult to say what role he played there. During this time, he did not pay any tax. It is unlikely the work he undertook, as set out above, was productive of any (or very limited) remuneration.
On 18 January 2016, the plaintiff commenced the work of trimming water shoots from apple trees. He had worked 2 days when the accident occurred early on the third day.
I have accepted that the plaintiff has some stiffness in his right elbow.

[103]

Section 151Z(2) of the Workers Compensation Act 1987

Section 151Z(2) reads as follows:
… (2) If, in respect of an injury to a worker for which compensation is payable under this Act - (a) the worker takes or is entitled to take proceedings independently of this Act to recover damages from a person other than the worker's employer, and (b) the worker also takes or is entitled to take proceedings independently of this Act to recover damages from that employer, the following provisions have effect - (c) the damages that may be recovered from the person by the worker in proceedings referred to in paragraph (a) are to be reduced by the amount by which the contribution which the person would (but for this Part) be entitled to recover from the employer as a joint tortfeasor or otherwise exceeds the amount of the contribution recoverable, (d) the amount of the contribution that the person is entitled to recover from the employer as a joint tortfeasor or otherwise is to be determined as if the whole of the damages were assessed in accordance with provisions of Division 3 as to the award of damages, (e) if the worker does not take proceedings against that employer or does not accept satisfaction of the judgment against that employer, subsection (1) applies as if the worker had not been entitled to recover damages from that employer, except that - (i) if the compensation paid by that employer exceeds the amount of the contribution that could be recovered from that employer as a joint tortfeasor or otherwise - the indemnity referred to in subsection (1) (d) is for the amount of the excess only, and (ii) if the compensation paid by that employer does not exceed the amount of that contribution - subsection (1) (d) does not apply and the employer has, to the extent of the compensation so paid, a defence to an action for such a contribution.
The first defendant submitted that given the liability of Pak Farm (if any party is liable), the plaintiff's damages would need to be reduced under s 151Z(2)(c) of the WCA. The amount of the reduction is the difference between two amounts: the actual contribution recoverable from the workers compensation nominal insurer in accordance with s 151Z(2)(d) of the WCA, and the hypothetical contribution that would be recoverable from the WCNI if s 151Z(2)(d) did not apply.
Further, and in the alternative, the first defendant says that any damages awarded to the plaintiff are to be reduced pursuant to s 151Z(2) of the Workers Compensation Act 1987, due to the negligence of the plaintiff's employer, Pak Farm.
Pursuant to s 151Z(2)(d) of the WCA, the amount of any contribution recoverable from the second defendant, the insurer is limited to work injury damages (past and future economic loss).

[107]

The plaintiff's submissions

This is calculated as $15,055 for one off costs as (per the report of Mr Christian Byrnes, an occupational therapist, dated 20 July 2022 (at pages 30-31)) and $146,804 for recurring costs per annum calculated as $6,024.20 for costs contained in report of Mr Christian Byrnes dated 20 July 2022 (at pages 30-31), $2,144 for psychiatrist/antidepressants and $750 for medication (Costs per annum ($8,918.20) /52 weeks ($171.50) x 856 (5% multiplier at 33 years) = $146,804).
The plaintiff reports being significantly disabled and distressed by persistent pain. He describes significant avoidance and escape behaviours: resting, avoidance of, and escape from, activities that increase pain, the use of painkillers and aids. These behaviours have also led to physical deconditioning and contributed to emotional distress, irritability and dysphoria. There are several possible reinforcers of these unhelpful behaviours: persistent pain; emotional distress; including fear of pain; health professionals; family, and friends. It is recommended that the plaintiff make efforts to change his behaviour: an increase in activity levels through a reduction of avoidance and escape behaviours and a reduction in the use of painkillers and aids. This will require a change in the contingencies of reinforcement. The best chance of achieving behaviour change would come from his participation in an intensive behaviour change program such as the Adapt Pain Management Program (2 CB 829).
There was a team meeting at which it was decided he may be suffering from a major depressive disorder and recommended psychiatric review. Approval for individual psychological treatment and physiotherapy was sought noting the plaintiff had successfully reduced many of his analgesic medication.
The goals of the Adapt program are set out at 2 CB 806 and are not unimportant. All these assessments were analysed after the completion of the initial referral questionnaire (784-801).
He embarked on the ADAPT program and the records have been produced, but it was interrupted and he disengaged after there was a breakdown in the family. He did not re-engage. Other examples of his "catastrophising behaviour" are to be found at 2 CB 762.
The records indicate he had medications in a blister pack (2 CB 758). By 26 September 2018, there was reference he returned to the general practitioner. At that time, he was going exercises, stretches and using stretches and elastic and he noticed the trembling was a tiny bit better but the pain was the same (2 CB 756). Other references to pressure and stress at 2 CB 754.
The progress report of the Adapt program 5 November 2018 (2 CB 771) is instructive as it demonstrates engagement and improvement throughout the period. The specific recommendations were made at 2 CB 715. Thereafter the discharge summary report of 31 January 2019 demonstrating the separation are at 2 CB 707.
As such, this gave rise to the recommendation for occupational therapy, psychological assistance, ongoing workplace assessment and pain management to assist him to manage his chronic pain and fear of movement.

[110]

Resolution

The future medical expenses represent a buffer to allow the plaintiff to be "weaned off his medication as soon as possible" (joint orthopaedic and rehabilitation conclave report, p 9), and to pay for any minor one-off costs such as occupational therapy interventions (Ms Dinley supports 8 hours x $194 per hour = $1,552: joint occupational therapy conclave report, page 12).
The occupational therapists recommend the following: Mr Byrnes stated that depending on progress, an initial 6 sessions of occupational therapy is deemed reasonably necessary. A review by a trained driver assessor is also reasonably necessary. Further occupational therapy may be required, depending on the response to the initial course. Mr Byrnes also referred to his report dated 20 July 2022 at page 30.
Mr Byrnes noted that Mr Babayi would likely benefit from the provision of the following therapeutic interventions (Note; this is based upon consideration of his current symptoms, the likely progression of his condition and need for future surgery or other invasive treatment): 1. Input from an occupational therapist regarding pacing, task modification and energy conservation techniques. Mr Byrnes recommended six sessions, at $192.50 or a one-off payment of $1,155. 2. A driving assessment to determine if aids/ equipment (e.g. mirrors, reversing sensor, or steering wheel knob) would assist to increase driving tolerance. To be confirmed by certified OT Driver Assessor with one-off costs of $1,400 and $500. 3. Physiotherapy input to develop an exercise program, including hydrotherapy program to keep him as active as possible. This would involve 6 sessions per year at a cost of $149.70 per session or $898.20 per year. 4. Regular massage therapy to manage him symptoms. This would involve 12 sessions per year at $90 a session or $1,080 per year. 5. Participation in a hydrotherapy program to improve general fitness level. This program offers unlimited access at a cost of $350. 6. Support from a psychologist regarding depressed mood and chronic pain. Ongoing need for treatment to be confirmed by treating GP/psychiatrist in consultation with psychologist. This would involve 12 sessions per year at $238 a session or $2,856 per year. 7. A Pain Management Program. This formal program to assist to manage chronic pain would be at a cost of $12,000; and 8. assistance from an interpreter to utilise the recommended interventions at a cost of $140 an hour or $840 per year.
Ms Dinley recommended 8 hours of occupational therapy interventions as a one off cost. The NDIS hourly rate for occupational therapists would apply (about $194/hr), This would include retraining, time management chronic pain management service access, maybe some physiotherapy and re-engagement.
Ms Dinley stated services of a driving occupational therapist would be required if the tremor is genuine (of which Ms Dinley is doubtful). This will involve cancelling the plaintiff's licence, the plaintiff would need to obtain a learners' permit again, the plaintiff would then undergo 2 sessions with an occupational therapist and lessons with a driving instructor. The plaintiff would also need to obtain spinner knob and be trained to use his left hand on the spinner knob. The cost of this is estimated to be $2,700.

[113]

Future domestic care and assistance

Plaintiff's submissions
As to future domestic care and assistance, the plaintiff has calculated damages at $406,745.52 also relying on the report of Christian Byrnes. 1. Median life expectancy = 33.22 years; 2. Rate per week per report of Mr Christian Byrnes dated 20 July 2022 (at page 28-29) = $475.17 3. $475.17 per week from 02/08/2022 to approximate median life expectancy date (33 years) $475.17 x 856 (5% multiplier at 33 years).
Domestic aids and appliances are calculated by the plaintiff at $2,471.86. This number is derived from the report of Mr Christian Byrnes dated 20 July 2022 (pages 29-30) as $150.16 per (costs per annum / 52 weeks x 856 (5% multiplier at 33 years)).
The plaintiff submitted that he has a severe tremor, aggravated by stress. This is concerning and distressing for him. That it may be psychogenic is not to the point. It is entrenched and has been for the last 6 years and the experts all agree that he requires extensive clinical management restore function. This necessarily affects his capacity to engage in heavier household cleaning tasks and yard and other maintenance.
He was assessed on 18 May 2019 by Mr Byrnes, in terms of his activities of daily living, was report at 2 CB 499) pain makes bending down to wash his car, tend to his vegetable garden, complete home repairs or reaching to take the washing out of the machine or hang it difficult. Pain limits his willingness to engage in any form of exercise or walking, e.g., to complete shopping which contributes to his reported weight gain. Pain reduces his capacity to lift and carry resulting in a greater resilience on his wife and children to help with the shopping, carry washing out to the line and results in an inability to work.
The plaintiff submitted that the combination of pain, fear of aggravation, poor psychological heath and fatigue as constraining his ability to perform tasks for meal preparation, housework, spring cleaning, laundry, gardening, home maintenance, household management, etc.
The plaintiff agreed it was not true to say he could not use his right arm to dress himself (T 85.36).
Dr Dinnen observed that, assuming the plaintiff's history and presentation was genuine, 6.5 years of treatment has not made him better. He recommended that the plaintiff receive supportive management from a GP, as well as 6 sessions per year of supportive counselling with prescription of medication for pain and depression. Dr Dinnen stated that review by a pain specialist once each year would also be appropriate. Dr Dinnen stated that this regime of treatment is intended to be maintenance treatment at a low level and is appropriate in the context of the chronicity of the plaintiff's condition. The estimated cost of this regime is $2,000 per year.
Dr Wilcox stated that, if the plaintiff is genuine, then has already had a lot of input and treatment to manage his symptoms without resolution or improvement, and therefore there would be no utility in implementing an intensive treatment regime (for example, participation in a pain management program). Assuming the plaintiff is genuine, Dr Wicox agreed that the treatment regime recommended by Dr Dinnen is reasonable and emphasised that treatment should focus on support and monitoring with a GP providing regular prescriptions and medication.
However, if it is found that the plaintiff is exaggerating his symptoms and that his representation of his injuries and disabilities is not accurate, then Dr WiIcox considered that no treatment would be required. Dr Machart was of similar opinion that the plaintiff had already been overtreated by practitioners. Dr Dalton's opinion was the plaintiff had a mild stiffness of the right elbow, but did not require any further medical treatment.

[114]

The first defendant's submissions - Past and future care

Eden Park submitted that no amount should be awarded for past or future domestic assistance, because the plaintiff does not meet the intensity and duration thresholds in s 15 of the Civil Liability Act and does not require commercial assistance."
Given the plaintiff's likely ability to return to usual activities of daily living within 3-4 months of the accident, his uncorroborated evidence that his wife and children now help him "a lot with cooking, cleaning and other household chores" and shopping, and that his wife helps him "get dressed every day", should be rejected. He has not proved - as s 15 of the CLA requires - that the alleged domestic assistance was provided, and that the need for it arose solely from the accident. Similarly, whatever assistance Mr Qamberi has provided - such as taking the plaintiff to doctors' appointments, or assistance with home maintenance - was not reasonably necessary, because the plaintiff can drive, and he has no demonstrated incapacity that would reasonably require assistance with home maintenance.
Further, the plaintiff's evidence does not begin to quantify the level of gratuitous assistance actually received after the accident. The occupational therapists have assessed that certain levels of care would (if provided) have been reasonable; but that does not prove such care was provided - and their assessments still depend upon acceptance of the plaintiff's histories and claimed disabilities, which are inconsistent with his activities in the surveillance footage.
None of the plaintiff's family, and most notably his wife, gave evidence of any assistance they may have provided to the plaintiff in the past as a result of any accident-related disability. His eldest daughter gave evidence of assisting with emails as a result of language difficulties.
The practical effect is that the plaintiff's claims for past and future gratuitous domestic assistance simply fall away. No amounts should be awarded, because he does not meet the intensity and duration thresholds in s 15 of the CLA.
Nor does the plaintiff require future commercial assistance. That was the unchallenged view of Dr Dalton in the joint report and during evidence, which should be accepted.
Alternatively, if commercial assistance with heavy manual handling and some home maintenance is required in the future - Ms Dinley originally allocated 1.5 hours for this, but considered this should be reduced given the findings of the joint orthopaedic and rehabilitation conclave - then the plaintiff requires no more than 1 hour of commercial assistance a week, at $55 per hour. The appropriate figure is then $55 per week x 845 (5% multiplier for remaining 32 years' life expectancy) x 0.85 (discount for vicissitudes: Avopiling Pty Ltd v Bosevski (2018) 98 NSWLR 171, 201 [153]) = $39,503.75, which would round to $40,000.
In summary, the first defendant submitted that no amount should be awarded for past or future domestic assistance, because the plaintiff does not meet the intensity and duration thresholds in s 15 of the Civil Liability Act and does not require commercial assistance.

[115]

Occupational Therapists' evidence

Ms Susan Dinley and Mr Christian Byrnes, both occupational therapists, provided a joint expert report dated 9 August 2022. They gave conclave evidence. The joint report has been summarised below.
Mr Byrnes made the assumption based on what the plaintiff reported to treating medical specialists, and formed the opinion, that the plaintiff was injured in a work-related accident on 20 January 2016. The initial injury was dislocation and fracture of the right elbow. He developed chronic pain and significant loss of functional use of his right of the limb. The plaintiff has experienced ongoing poor psychological health as a result of his chronic pain and chronic disability. This assumption, and opinion, was formed on the basis of assessment findings (on two occasions in 2019 and 2022), and of review all available medical and related reports and consideration of reviews surveillance videos. This assumption, and opinion, has been supported by the most recent opinions.
However, in cross-examination, Mr Byrnes conceded that if the accepted medical opinion was that there was no need for future care, then without some extraneous hypothetical circumstance he would agree with the expert medical evidence (T369.10-35). Mr Byrnes also acknowledged that the video surveillance footage was at times inconsistent with the way in which the plaintiff presented to him during examination (T378.13-380.21). He mostly attributed this to fluctuations or "good and bad days" in the plaintiff's symptoms.
Ms Dinley referred to her work coordinating a hand injury clinic for many years, working with surgeons, and stated that she has never seen the tremor the plaintiff demonstrated at the first assessment. Ms Dinley reported that the tremor changed direction from the first time she assessed the plaintiff, where the tremor movement was directly up and down, to one which is recorded in her 2022 assessment of the plaintiff where a tremor moved the hand from pronation to supination. Additionally, Ms Dinley stated that the surveillance tapes showed good right-hand function, including reflexes. Ms Dinley is a driver trained occupational therapist and expressed her opinion that if the plaintiff's right dominant hand is as bad as was demonstrated then he should not be permitted to drive. However, she also noted that the plaintiff is driving, which indicated that he could successfully grip and steer.

[116]

Past care or assistance

Mr Byrnes recorded that the plaintiff has received assistance with personal care, care of others, meal preparation, spring cleaning, shopping, laundry, vehicle maintenance, garbage management, garden/lawn care, bill payment and vehicle maintenance from the date of the injury to the date of the assessment. The amount of care received varied depending on the care provided. Mr Byrnes noted that the care was principally provided by the plaintiff's wife with the plaintiff reporting that he received additional care from a friend and also his landlord.
Mr Byrnes formed the opinion, based upon assessment findings and medical reports reviewed, that the plaintif's condition has not improved. Ms Dinley agreed with Mr Byrnes that the plaintiff has received past care. Ms Dinley said that the plaintiff required care from the date of the accident to April 2022 (when she last assessed the plaintiff), the amount of which reduced over time.
Ms Dinley has divided the period over which the plaintiff received past care into 4 stages: 1. From 21 January 2016 - 23 January 2016 the plaintiff did not receive any domestic assistance or attendant care as he has in hospital. 2. From 24 January 2016-13 February 2016 (a 21 days). The plaintiff's arm was in a cast/sling during this period. Ms Dinley stated that the plaintiff required 18 hours of domestic assistance or attendant care each week for this period of 3 weeks. 3. From 14 February 2016 to 11 September 2019 (3.5 years, 187 weeks) the plaintiff was at home during this period. The plaintiff's arm developed a tremor. The plaintiff slowly returned to driving. The plaintiff re-engaged in domestic tasks. The plaintiff never returned to work and never did any maintenance tasks. The plaintiff reported that the tremor was affecting his ability to participate in activities of daily living, his sleep and his ability to return to work. Ms Dinley found that the plaintiff required 9 hours per week of care with gradual reduction to 3 hours per week. 4. From 12 September 2019-20 April 2022 Ms Dinley assessed the plaintiff on 20 April 2022 at his home and on this occasion the interpreter was running late and arrived 30 minutes after the scheduled start time. During the period while they were waiting for the interpreter to arrive, Ms Dinley observed the plaintiff going about various tasks at home while they waited and noted that the tremor was absent during this time. As soon as the interpreter arrived, the tremor started again and it was a pronation/supination tremor, which is different from when Ms Dinley assessed him in 2019. Ms Dinley assessed that the plaintiff required 1.5 hours per week for maintenance tasks and domestic tasks. After this period, ending with the date of her assessment of the plaintiff, Ms Dinley assessed the plaintiff for future care.
Ms Dinley also noted that, during her last assessment, when asking the plaintiff to perform tasks around the kitchen he could not locate simple things like the location of the tins of food, he could not locate a can opener, he did not know where the carrots were in the fridge. This reinforced to Ms Dinley that the plaintiff has never performed domestic tasks like cooking around the home.
Ms Dinley stated that she has since watched the surveillance video during which the tremor was absent. In cross-examination, she did however concede that the plaintiff did display guarding or pain avoidance behaviour by keeping his arm close to his body or in his pocket through the majority of the surveillance footage (T335.7-50).
Ms Dinley stated that the assistance was provided by the plaintiff's wife in relation to domestic tasks. Ms Dinley stated that the plaintiff reported that the insurance company did some of the gardens and lawns, although she observed that there was not much lawn or gardens because the landlord had built a structure at the back. There was reported that assistance was provided by a friend and his son who was in his late-teens.
Mr Byrnes agreed with Ms Dinley that the plaintiff would not have required any domestic assistance or attendant care while he was in hospital. The experts also agreed that the plaintiff would have required domestic assistance and/or attendant care at other times, however the nature and extent of the care is not agreed.
As to the issue of whether that domestic assistance and/or attendant care was required solely as a result of the accident, Ms Dinley stated that she has reviewed all of the reports provided. Due to the different conclusions from information provided across those reports. Ms Dinley undertook a triangulation exercise where she compared what the experts had reported and what the plaintiff described and also her observations of the plaintiff during the assessment and in the surveillance videos.
From what she observed and in comparison with the information in the reports, Ms Dinley therefore came to a view that the plaintiff would have required domestic assistance and/or attendant care as a result of the accident but that it would have reduced over time due to the plaintiff's improving condition.

[117]

Future care

Mr Byrnes concluded that the nature of assistance required is personal care shopping, spring cleaning, laundry, lawn/gardening, household garbage management, household maintenance, vehicle cleaning and vehicle maintenance. Mr Byrnes went on to opine that, based on assessment findings, including reports mentioned above, future support will be reasonably required on an ongoing basis.
Ms Dinley stated that she has based her opinion on this issue taking into account the medical inconsistencies in the clinical presentation reported by various experts and also from her own observations during assessment and in the surveillance video. Ms Dinley stated, of particular note, that Dr Dalton noted that there were inconsistencies in the plaintiff's movements during the examination in the manner that the plaintiff could dress and undress himself and also the inconsistent presentation of the tremor during the examination. Dr Machart, in his report dated 5 July 2022, Dr Machart, referring to Dr Dalton's report, Ms Dinley's report.
In her assessment of the plaintiff, Ms Dinley noted the absence of any wasting in the affected limb and also noted the absence of contractures. Ms Dinley stated that, in her experience in the hand clinic under Prof Cummings and from her expertise, this is an indication that the plaintiff is using the right upper limb.
Ms Dinley did not agree with those experts that concluded the plaintiff has CRPS, Dr Guirgis and Dr Milder, and considered it was more likely that (in accordance with other experts who have expressed the same opinion on this issue) the plaintiff does not have CRPS. So far as I best understand it, it is not the role of an occupational therapist to provide a medical diagnosis.
Overall, Ms Dinley accepted that the plaintiff has suffered a frank injury to the right elbow but rejected any diagnosis of CRPS. Ms Dinley concluded that the plaintiff required, into the future, 72 hours of assistance per year for lawn mowing (30 minutes) and heavy domestic tasks including maintenance tasks (1 hour/wk). This is on the basis that the plaintiff's right arm may be affected by the vibrations in a lawn mower and also that he would have difficulty with heavy domestic tasks. The cost of the domestic assistance is $45 per week for a commercial provider, with the local cost being $22 per hour. The cost of assistance with heavy domestic and maintenance tasks is $65 per hour for a commercial provider, with the local cost being $30 per hour.
The experts observe that the regimes they have recommended differ and this is at least partly due to the differing assumptions that the experts have made regarding the plaintiff current condition, noting that Mr Byrnes accepts the diagnosis of CRPS, whereas Ms Dinley does not.

[118]

Past and future attendant services

Dr Machart stated that, for the first 3 or 4 months, the plaintiff may not have been able to do much with the right arm, noting he had a well-functioning left arm, he would have been restricted from strenuous domestic works, such as cutting the lawn or gardening. Beyond that, Dr Machart did not see any reason why the plaintiff would require external assistance. This opinion is based on his experience with these fractures. For Dr Machart to come to a different conclusion about this patient, he would have to be convinced the injury did not follow the usual pathology paths, for which there is no such evidence.
Dr Guirgis agreed with Dr Machart with the qualification that the question of the existence of any additional pathology might be a relevant issue here, being the pain disorder and its effects.
Dr Dalton considered that the plaintiff would have had some restrictions immediately following the injury and while he was recovering during his immobilisation. Once his injury had stabilised he did not, in Dr Dalton's view, require any assistance with his pre-accident domestic tasks. He considered that the plaintiff may have difficulty with heavy manual handling and some home maintenance tasks but, on the balance of probabilities. Dr Dalton did not consider that the plaintiff requires any ongoing domestic assistance in the future.
Prof. Fitzsimons in her first report described various domestic capabilities/restrictions which the plaintiff reported. Prof. Fitzsimons also noted that the surveillance showed the plaintiff performing certain tasks such as using his right arm to pour tea, he used his right arm more freely than on examination and he was able to wash the car by himself.
Prof. Fitzsimons surmised that the orthopaedic injuries may prevent him from doing the heavier domestic tasks and that there was nothing neurologically that would prevent the plaintiff from performing the usual domestic tasks. She also stated that, if the tremor were genuine, then it would have an effect on the plaintiff's ability to perform domestic tasks, however that tremor was completely absent in any of the surveillance footage where the plaintiff was shown to be doing certain tasks such as pouring tea.
Dr Milder opined that the plaintiff's ability to perform domestic tasks, including those performed prior to 20 January 2016, is markedly impaired. Prof. Fitzsimons refers to her first report in which she described various domestic capabilities/restrictions which the plaintiff reported.
Prof. Fitzsimons noted in the surveillance that the plaintiff was able to pour tea, he used his right arm more freely than on examination, he was able to wash the car. Prof. Fitzsimons surmised that the orthopaedic injuries may prevent him from doing the heavier domestic tasks. However, from a neurological perspective, it is Prof. Fitzsimons' opinion stated that there was nothing neurologically that would prevent the plaintiff from performing the usual domestic tasks. Alternatively, if the tremor were genuine, then it would have an effect on the plaintiff's ability to perform domestic tasks, however that tremor was completely absent in any of the surveillance footage where the plaintiff was shown to be doing certain tasks such as pouring tea.
The psychiatric experts agreed that if it is accepted that the plaintiff was exaggerating or manipulating his symptoms intentionally, then one could not conclude that he was unfit to perform pre-accident domestic tasks as a result of his injuries.
On that issue, Dr Wilcox recounted that during her assessment of the plaintiff, he stated that he could not lift his right arm and when he demonstrated this, he tilted his whole body in order to demonstrate that this is how he moved his right arm. In other words, it was an extreme physical demonstration of what was represented to be an extreme restriction of movement.
However, Dr Dinnen stated that in part of the surveillance footage, the plaintiff was observed to be shopping and during that activity was observed to be holding clothes with his right hand, which, on one view, demonstrates that he is able to use that hand. However, Dr Dinnen went on to state that if you look carefully at the clothes which the plaintiff was holding, they would have weighed less than one kilo, which is not inconsistent with the plaintiff's statement where he says that he can lift one and a half kilos for reasonable periods of time.

Ali Khan Babayi v Eden Park Fruits Pty Ltd

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