Andonovski v Park-Tec Engineering Pty Ltd and Barbeques Galore Pty Ltd; Andonovski v East Realisations Pty Ltd - [2015] NSWSC 341 - NSWSC 2013 case summary — Zoe

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Andonovski v Park-Tec Engineering Pty Ltd and Barbeques Galore Pty Ltd; Andonovski v East Realisations Pty Ltd

[2015] NSWSC 341

Supreme Court of NSW|2013-12-19|Before: Campbell J

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2013-12-19

Before

Campbell J

Source

Original judgment source is linked above.

Judgment (38 paragraphs)

[1]

rm (Miscellaneous Provisions) Act (NSW); Limitation Act 1969 (NSW); Motor Accidents Compensation Act 2002 (NSW) Workers Compensation Act 1987 (NSW); Workplace Injury Management and Workers Compensation Act 1998 (NSW); Workers Compensation Regulation 2010 (NSW) Cases Cited: Andar Transport Pty Ltd v Brambles Limited [2004] HCA 28; 217 CLR 424; Ashrafi Persian Trading Co Pty Ltd t/as Rosyln Gardens Motor Inn & Anor v Ashrafinia [2001] NSWCA 243; Benic v State of New South Wales [2010] NSWSC 1039; Birdon Marine Pty Ltd v Jepp [2009] NSWCA 147; Bostic Australia Pty Ltd v Liddiard [2009] NSWSC 167; Aust. Torts Rep. 82-020; Bressington v Commissioner for Railways NSW (1947) 75 CLR 339; Connelly v Wells (1994) 10 NSWCCR 396; Council of the Shire of Wyong v Shirt (1980) 146 CLR 40; CSR Limited v Wren (1998) 44 NSWLR 463; Czatyrko v Edith Cowen University [2005] HCA 14; 79 ALJR 839; Dalgety Farmers Ltd T/as Grazcos v Bruce (1995) 12 NSWCCR 36; Davies v Adelaide Chemical and Fertilizer Co. (1946) 74 CLR 541; Dib Group Pty Ltd T/as Hill & Co v Cole [2009] NSWCA 210; Ermogenous v Greek Orthodox Community of SA Inc [2002] HCA 8; 209 CLR 95; Estate of Mutton v Howard Haulage Pty Ltd [2007] NSWCA 340; Franklins Self-Service Pty Ltd v Wyber [1999] NSWCA 390; Hoad v Peel Valley Exporters Pty Ltd [2008] NSWSC 981; I & J Foods Pty Ltd v Bergzam Pty Ltd (1997) 14 NSWCCR 486; Jaensch v Coffey [1984] HCA 52; 155 CLR 549; Kempsey District Hospital v Thackham (1995) 36 NSWLR 492; Kondis v State Transport Authority [1984] HCA 61; 1984 154 CLR 642; Leighton Contractors Pty Ltd v Fox [2009] HCA 35; 240 CLR 1; Manser v Spry (1994) 181 CLR 428; Pitcher v Langford (1991) 23 NSWLR 142; Podrebersek v Australian Iron and Steel Pty Ltd HCA 34; 59 ALR 529; Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99; Roads & Traffic Authority v Dederer [2007] HCA 42; 234 CLR 330; Roads and Traffic Authority of New South Wales v Refrigerated Roadways Pty Ltd [2009] NSWCA 263; Rosenberg v Percival [2001] HCA 18; 205 CLR 434; Shaw v Bindaree Beef Pty Ltd [2007] NSWCA 125; Shaw v Thomas [2010] NSWCA 169; Smith v Broken Hill Pty Ltd (1957) 97 CLR 337; Swain v Waverley Council [2005] HCA 4; 220 CLR 517; Thompson v Woolworths (Q-land) Pty Ltd [2005] HCA 19; 22 CLR 434; TNT Australia Pty Ltd v Christie [2003] NSWCA 47; 65 NSWLR 1; WorkCover Authority of New South Wales v Billpat Holdings Pty Ltd (1995) 11 NSWCCR 565; Zuijs v Wirth Bros Pty Ltd [1955] HCA 73; 93 CLR 561 Category: Principal judgment Parties: Vlado Andonovski (Plaintiff) Representation: Counsel: A Lidden SC with E Welsh and M Sciglitano (plaintiff) TA Berberian (First Defendant, Park-Tec) N Polin (Second Defendant, Barbeques Galore) R O'Keefe (First & Second defendant, Westbus)

[4]

The issues

In the first action the issues are: 1. Park-Tec accepts it owed the plaintiff a duty of care. But there is an issue about the nature, scope and content of that duty. Park-Tec at all material times was a wholly owned subsidiary of BBG, Mr Andonovski's employer. BBG deployed Mr Andonovksi to work in Park-Tec's operations as a truck and forklift driver, and factory hand. Mr Andonovksi, Park-Tec and BBG all accepted that a salient feature in the determination of the content of the duty of care owed by Park-Tec is whether the supervisory staff under whom he worked at Park-Tec were employed by it or BBG. Park-Tec argued that the supervisory staff was all employed by BBG. Mr Andonovksi and BBG argued to the contrary; 2. Park-Tec and BBG both denied negligence and asserted contributory negligence on the part of Mr Andonovksi; 3. If both Park-Tec and BBG are liable, there is an issue between them as to apportionment for the purposes of contribution; 4. BBG claimed indemnity for compensation paid to, for, or on behalf of Mr Andonovksi under s 151Z(1)(d) Workers Compensation Act 1987 (NSW). That cross-claim was filed on 24th July 2012 and Park-Tec says that payments made more than six years before the date are barred by the provisions of s 14 Limitation Act 1969 (NSW). There may also be an issue about what was paid for which injury, and how s 151Z dove-tails with the principle against double compensation in this case; 5. There is a very hot contest about the nature and extent of Mr Andonovski's injuries and resultant disabilities. This issue involves Mr Andonovksi's credit-worthiness as a witness, especially as a good deal of surveillance film was shown, which all defendants say is inconsistent with his complaints and presentation to medical assessors and the Court.
It is not in issue that Mr Andonovksi has satisfied the permanent impairment threshold for bringing and maintaining a claim for work injury damages against BBG of "at least 15 per cent": s 51H 1987 Act. He was assessed as having such a degree of impairment by an approved medical specialist, Dr Greg McGroder, by a certificate dated 12th September 2011 (Exhibit H, and Exhibit 3D10, tab 43). There is no issue that the plaintiff has otherwise complied with the pre-litigation requirements imposed by Ch 7 Workplace Injury Management and Workers Compensation Act 1998 (NSW). On 29th July 2013 Harrison J made orders under s 151D 1987 Act extending the time during which the work injury damages proceedings could be brought ([2013] NSWSC 800).
The cause of action in the bus accident proceedings arises from a collision between a truck and the bus which occurred on 28th May 2011. For reasons I will give later in this judgment, I am satisfied that a truck owned by RD Transport backed into the bus owned by Westbus which was stationary in a queue of traffic waiting to turn right from Cowpasture Road, Edensor Park. The bus accident defendants have common legal representation and have admitted breach of duty of care. The issues relate solely to question of damage and include whether the plaintiff suffered any injury, and if so the nature and extent of it, and the resulting disabilities. The bus accident defendants deny any injury at all but say, in the alternative, if there was an injury it was a minor injury of a self-limiting type, the effects of which had resolved within, at most, a few months. The bus accident defendants also say that Mr Andonovski cannot be believed in what he says about his injuries and disabilities. It is accepted that the degree of permanent impairment suffered by Mr Andonovski, as assessed by Dr Mark Burns, a medical assessor for the purpose of the Motor Accidents Compensation Act 1999 (NSW) is insufficient to entitle Mr Andonovski to damages for non-economic loss in respect of the consequences of the motor accident (s 131 of the 1999 Act; Exhibit 3D10, tab 25).

[5]

The history of the proceedings

As I have said, it is necessary in this case to say something about the tortuous route by which this litigation came to trial. This was pithily summarised by Counsel for the plaintiff in her opening (3.5 - .40T). Later developments are fully described by Harrison J in [2013] NSWSC 800 at [2] - [10]. His Honour described the course of the proceedings as "extraordinary, if not almost unbelievable". But Mr Andonovski's difficulties, as explained by Counsel were not all to be laid at his feet.
Initially he was not able to sue his employer because his degree of impairment had not been assessed as sufficient to cross the s 151H threshold "of at least 15%" by the time proceedings should have been commenced in March 2007. On 9th May 2007, a certificate was issued by Dr McGroder assessing the degree of permanent impairment at less than 15 per cent.
There was also some confusion about which of BBG or Park-Tec was his employer. Both are companies in the BBG group. Park-Tec took the view that it was the employer. Within three months of the commencement of the proceedings (originally in the District Court), on 5th June 2007, it filed a motion seeking summary dismissal of the statement of claim on the grounds that Mr Andonovski had not complied with the pre-litigation conditions for bringing a work injury damages claim required by Ch 7 of the 1998 Act. Moreover, as I have said, by then the binding assessment made by Dr McGroder was less than 15 per cent.
On 10th March 2008, an Amended Motion was brought in the name of BBG, who was not then a party, but advanced by the lawyers acting for Park-Tec seeking the separate determination of the question of the identity of Mr Andonovski's employer, effectively was it Park-Tec or BBG (see [2009] NSWCA 305 at [14] per Sackville AJA). That motion was determined by Johnstone DCJ on 30th July 2008. His Honour's decision was that Park-Tec was the employer not BBG. His Honour's decision, (by leave to the extent necessary) was appealed to the Court of Appeal. The history between the filing of the Amended Motion and Johnstone DCJ's determination is set out in the judgment of Sackville AJA at [14] - [20].
Johnstone DCJ's finding led to him dismissing the proceedings against Park-Tec because it was common ground that Mr Andonovski was not entitled to bring a claim for work injury damages. He refused leave to commence against, or substitute, BBG expressing the view that the proceedings "had been discoverable by the appellant more than 3 years before the application was made and was therefore extinguished by s 50C of the Limitation Act 1969 (NSW)" (Sackville AJA at [39]). On 27th October 2009 (six weeks after the hearing) the Court of Appeal decided that on the balance of probabilities, Mr Andonovski's employer was BBG and not Park-Tec (Sackville AJA at [74]). That determination is binding on me. But his Honour observed at [77]: However, the evidence is insufficient to enable a finding to made as to the identity of the employer of the other employees who work at [Park-Tec's premises] … This observation left that question open for determination by me, to the extent to which it is relevant to resolve the issues that the parties put before the Court for resolution.
There is no real explanation about what happened with the proceedings between 27th October 2009 and the determination by Dr McGroder in 2011 that Mr Andonovski suffered at least 15 per cent permanent impairment from the work injury. From then, it is tolerably clear that the other pre-litigation steps prescribed by the 1998 Act had been complied with and Harrison J has documented the flurry of activity in about mid-2012 until his determination in July 2013. I should interpolate that the proceedings were commenced in the District Court of New South Wales on 5th March 2007 and transferred to this Court on 12th March 2013.
The bus accident proceedings, commenced in 2008, essentially remained in a holding pattern. Sensibly, that matter had to be determined with the work injury proceedings and accordingly the parties had to bide their time whilst the interlocutory manoeuvring in those proceedings took its course.

[6]

Park-Tec's operations

The first issue I have identified is about the nature and scope of the duty undoubtedly owed by Park-Tec to Mr Andonovski. The Court of Appeal's decision, as I have just remarked, conclusively for present purposes determines that the nature of the relationship between BBG and Mr Andonovski is that of employer and employee and accordingly BBG owes Mr Andonovski the employer's non-delegable duty to exercise reasonable care to protect him from unnecessary risks of personal injury in the performance of his work. The duty is often described as "stringent" because it is a duty to see that reasonable care is taken: Kondis v State Transport Authority [1984] HCA 61; 1984 154 CLR 672; Andar Transport Pty Ltd v Brambles Limited [2004] HCA 28; 217 CLR 424.
The significance of determining the nature of Park-Tec's operations and the question left open by the Court of Appeal about the identity of the employer of the other employees is for the purpose of establishing the category into which Park-Tec's duty falls. If the other workers engaged in the operations and in particular the supervisors and management are all employed not by Park-Tec but by BBG then, according to Park-Tec's argument, the duty is that owed by an occupier as discussed in Thompson v Woolworths (Q'land) Pty Ltd [2005] HCA 19; 221 CLR 234; but if the other employees are employed by Park-Tec it may owe a duty analogous to that of an employer as discussed in TNT Australia Pty Ltd v Christie [2003] NSWCA 47; 65 NSWLR 1. It is not suggested that this could be a case like Leighton Contractors Pty Ltd v Fox [2009] HCA 35; 240 CLR 1 where no duty was owed to the employee of an independent contractor.
Obviously, what reasonable care requires may vary according to the closeness of the relationship between Park-Tec and the plaintiff. For instance Park-Tec argues that all of the persons working in its operations including supervisors and managers were BBG employees. In this circumstance, Park-Tec would have no obligation to devise and implement a safe system of work; Its duty as an occupier would be limited to its responsibility for the static condition of the premises.
The evidence establishes that there is a Barbeques Galore group of companies. ASIC searches (Exhibit 2D3) indicate that BBG is the parent or holding company of the group. It was formerly named Barbeques Galore Ltd but a process of "privatisation" took place in 2005 (Exhibit 2D7). BBG accepts that Park-Tec is its wholly owned subsidiary and accordingly BBG had a degree of control over Park-Tec.
There were other companies in the group (Exhibit 2D8, a workers' compensation renewal declaration identifies four other separate companies). These workers' compensation insurance renewal documents also show that for the financial year 1st July 2003 - 30th June 2004, the financial year during which Mr Andonovski's accidents happened, Park-Tec estimated its wages bill for workers engaged in the manufacture of household appliances as $3m. It declared that in the previous financial year its wages bill was $5.8m. Moreover, its workers compensation premium for the financial year in which Mr Andonovski was injured was $120,629.20. I interpolate that BBG argues this is powerful evidence that Park-Tec has its own workforce.
Mr Nathan Hepburn, as at the date of the trial, was the financial controller of BBG. His statement is Exhibit 2D7. He produced Park-Tec's financial statement for its financial year running from 1st February 2004 to 31 January 2005 indicating that its revenue was $12,078,714 and its wages bill was $1,945,890. His evidence is that BBG was "the chequebook" for other companies in the group, including Park-Tec and paid the wages to Park-Tec's workers, who numbered 62. His evidence is that all of those persons worked at Park-Tec's premises as part of its operations. The wages when paid were treated in BBG's books as a loan from BBG to Park-Tec. Rent was included in the financial statement in the category "other expenses from ordinary activities".
There is other documentary evidence in the form of Exhibit 1D24 consisting of pay records relating to managers, supervisors and other workers performing work in Park-Tec's operations at the time of Mr Andonovski's injury. The first person whose records are reproduced (Tab 1) is Mr Loucas Nicola. In an affidavit affirmed on 17th May 2007 for the purpose of these proceedings he described himself as "the General Manager of Park Tec Engineering Pty Ltd" since 2003. But he had been with the company since about 1986 (Exhibit 2D4). He described himself in the same way in Exhibit 1D11 [6], a statement made to a private investigator on 22nd April 2004. In oral testimony (384.15T) he agreed with the proposition that he was "the general manager working at the Park-Tec premises" at the time of Mr Andonovski's injury. His PAYG payment summary for the year ending 30th June 2004 shows the payer's name as BBG and displays its Australian Business Number. Copies of payment summaries from 2003 to 2004 apparently generated by word processors in BBG's payroll office are stamped with the business name, "Barbeques Galore", identify the payee as BBG and again contain its ABN and its ACN. Monthly pay records for Mr Nicola bearing BBG's name were also tendered.
The next employee is Thanh Vu. His statement of 23rd April 2014 was tendered as Exhibit 1D8. He describes himself as a "floor supervisor in the assembly section with Park-Tec"([6]). Mr Andonovski sometimes worked under him when there were no deliveries to be made with his truck. Again, the records produced in relation to his employment (Exhibit 1D24, Tab 2) include a series of copy PAYG summaries between 1st July 2002 and 30th June 2011. Each of the documents identifies BBG as the payer and contains its ABN and ACN. Two weekly pay records are in the name of BBG. So far as oral evidence is concerned, Mr Vu said he had worked at the Park-Tec factory for 22 years (357.10T).
Mr Terry Hawes' statement of 22nd April 2014 is Exhibit 1D17. Mr Hawes died on 5th December 2012. The statement was tendered under s 63 Evidence Act 1995 (NSW). He describes himself as "the operations manager of Park-Tec Engineering Pty Ltd". Some of his employment records form part of Exhibit 1D24, tab 3. The four page application for employment signed by him dated 27th June 1994 is under the name of BBG. The conditions of employment on p 4 refer simply to the Galore Group. A contract of employment signed on 15th November 2007 is signed by Mr Hawes and on behalf of BBG. It records his original date of commencement as 27th June 1994. The position is described as "manager operations". The contract is said to be between BBG "(the company)" and Mr Hawes, it requires him to work at "the company's offices" at the address given in his statement as Park-Tec's place of business. Clause 11 is a restraint of trade clause protecting the business of "Park-Tec Engineering Pty Ltd". The ACN is different from BBG's. A series of PAYG summaries between 1st July 2002 and 30th June 2007 identifies BBG as the payer and contains, in each case, its ABN and ACN.
I will not multiply examples, but a similar bundle of documents is produced for each of Bounyalck Vanthavong, Gill Baillon and Stewart Frost. Mr Frost was the group occupational health and safety manager whom all parties accept is employed by BBG. But apart from Mr Hawes contract of employment of 15th November 2007 Park-Tec is not mentioned in any of these documents relating to the employment of these persons. A point is made that with the exception I have just mentioned, the records relating to Mr Andonovski and Mr Frost are in all respects virtually identical to the others. Mr Vanthavong was a leading hand "at the Park-Tec factory" (375.25T).
There is an important additional point. The applications for employment completed by Mr Vanthavong, Mr Hawes, Mr Baillon and Mr Frost are all under the name of a company called Galore Group Services Pty Ltd. Galore Group Services Pty Ltd is not BBG. It is a company now called Bosmana Pty Ltd, which has a different ACN and ABN from BBG. Those numbers are ACN 007903022 and ANB 60079030322 (Exhibit 2D3). Those numbers are not the numbers of any of the other companies on the group appearing on Exhibit 2D8 - all of which had an insurance policy at the relevant time with Allianz Workers' Compensation NSW Ltd.
Mr Nicola described Park-Tec as the manufacturing division of BBG. "The main function was supplying [BBG], but at that time we were also doing some outside contracting work", manufacturing facilities for some other customers (385.20T). The Park-Tec factory was located on Princess Road, West Auburn. BBG was not located there but had premises "a couple of hundred metres away" (386.5 - .15T). Staff working at Park-Tec could use the canteen at BBG and BBG personnel would attend Park-Tec for a weekly production meeting (386.25 - .35T).
Mr Nicola described Mr Frost as "the group safety officer" who was based at BBG's nearby offices (387.15 - .25T). Park-Tec's induction handbook incorporated BBG's occupational health and safety policy.
Park-Tec hired a large cages, one of which Mr Andonovski was attempting to open when he was injured, in its own name from TNT (397.50T; Exhibit 1D14). Exhibit 1D14 includes purchase orders on Park-Tec stationary and delivery dockets and invoices from TNT. The invoices are directed to Park-Tec.
Mr Nicola said that Park-Tec "in terms of its operations" did not totally operate as an independent company (399.45T). It was not "self-funding". Most of its production went to BBG, its supply to other customers depended upon the approval of BBG (400.10T).
The main point made against the force of this considerable body of documentary evidence that, if accepted, mostly points to the probability that all of these employees were employed by BBG and not Park-Tec, is the evidence from Mr Nicola and Mr Hepburn that BBG ran a central pay office from which wages were paid to all employees of the various companies in the group as a matter of administrative convenience. Mr Nicola believed that the other employees working at Park-Tec were employed by Park-Tec (403.25T). He saw himself in a different position because he could be called upon by BBG to be involved in any projects they required.
Mr Nicola's evidence was that at one-time each of the companies in the group, including Park-Tec, "used to have their own payroll system" and process their staff wages in their own name (415.25T). He agreed that at some stage, obviously before Mr Andonovski's work accident, there was a change in the system, for reasons of efficiency, to BBG paying wages centrally (416.25T).
He was asked a series of questions about the financial statement attached to Mr Hepburn's statement (Exhibit 2D7) at 471.35 - 418.20T: Q. And you've seen his reference in those accounts to the fact that Park‑Tec asserts in its financial accounts that as at the end of that particular financial year it employed 62 people? A. Yes. Q. You can see that, and you can see that in the accounts as well it made provision for employment expenses, i.e. wages and salaries, I think of $1.95 million? A. Yes. Q. And so that was an expense that was created against the business Park‑Tec? A. Yes. Q. For the employees of Park‑Tec? A. Yes. Q. And because Barbecues Galore had paid their wages there was loans created between the companies to reflect the fact that that was paid? A. That's right. Q. So in the accounts of Park‑Tec it really shows that Park‑Tec paid the wages, doesn't it? A. We've been allocated the expense‑‑ Q. So in other words‑‑ A. We didn't have cash to pay. Q. That's right, the cash was handed over by Barbecues Galore‑‑ A. Yes. Q. But in the account the cash gets transferred not in specie but in terms of the loans from Park‑Tec to Barbecues Galore? A. Yes. Q. So that in terms of the operation of the business the wages were paid by Park‑Tec? A. It was charged to Park‑Tec.
I asked some questions at 419.5 - .25T as follows: Q. But if what's happening as between related companies is that, you know, one company is doing the physical payment but is saying to the other company I'm paying this for you and at the end of the financial year this will be an expense incurred by you for the purpose of your financial position‑‑ A. Well, what's exactly what it is. Q. Yes, in substance the company who's writing it in its accounts is the one responsible for the payment? A. Yeah, okay, I accept that. Q. You accept it, or not? A. Yes, I do, yep. Q. All right, it's not compulsory that you do, we're asking you what you say about that proposition? A. Well, the expense is allocated to Park‑Tec so it is Park‑Tec's responsibility and it's paying Park‑Tec's workers, so yes, that's a reasonable viewpoint. POLIN Q. And I take in that $1.9 million was the wages of Mr Vu, Mr Hawes, Mr Vanthavong, Mr Baillon? A. Yes.
Mr Hepburn also gave oral evidence. As he said in his statement, he commenced with the company on 26th July 2004 when the financial systems he described were already in place and have continued. He said that Park-Tec had their own management, an operations manager and were responsible for hiring and firing employees who worked in their operations. BBG had an administrative function of "processing paper work" (480.35 - .45T). He accepted that letters shown to him during cross-examination, and subsequently tendered, suggested that BBG advised Mr Baillon of the circumstances of his redundancy. He adhered to his evidence containing his statement that "[BBG] did operate as a chequebook in relation to the wages drawn" for people working at Park-Tec. That money came out of BBG's "bank account""(483.5-10T). It also completed the necessary paper work in relation to wages and tax (483.15T). The group human resources department "operating at BBG" "have been involved" in the "hiring and firing of staff who work at the Park-Tec premises" (483.30 - 35T) Generally, he agreed that BBG was responsible for maintaining the human resource management "or overall management of staff" who work in the group including Park-Tec (482.20T). BBG had "an important function so far as safety was concerned for the various companies which formed … the group including Park-Tec" (482.25T).

[7]

Applicable legal principles

Whether a contract has been entered into and by whom is determined on an objective assessment of the state of affairs between the parties: Shaw v Bindaree Beef Pty Ltd [2007] NSWCA 125 at [61], and the cases there cited; Andonovski at [58]. In Ermogenous v Greek Orthodox Community of SA Inc [2002] HCA 8; 209 CLR 95 the plurality at [25] said: Although the word "intention" is used in this context, it is used in the same sense as it is used in other contractual contexts. It describes what it is that would objectively be conveyed by what was said or done, having regard to the circumstances in which those statements and actions happened. It is not a search for the uncommunicated subjective motives or intentions of the parties. What the witnesses say about their subjective understanding of the nature of the arrangements cannot be taken into account.
Where the question is one of identifying which of two or more known entities is a worker's employer, the broad indicia arising out of the judgment of Mason J in Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16, which were expressed for the purpose of determining the nature of the relationship between persons making a contract for the performance at work, may not provide clear guidance for the resolution of the issue: Andonovski at [57]; Dalgety Farmers Ltd (t/a Grazcos) v Bruce (1995) 12 NSWCCR 36, by Clarke JA.
In determining the identity of the parties to a contract of service "the courts are entitled, independently of any statutory power on that behalf, to consider the reality of purported contractual arrangements", even where they are not said to be a "sham": Pitcher v Langford (1991) 23 NSWLR 142 at 161 by Handley JA. Pitcher is a case where shearers accustomed to working for a contractor were said to be on the occasion of their work at a particular shed, employees of the pastoralist. Agreements were signed and records were kept by the pastoralist of payments of wages and the deduction of tax. Insurance premiums were paid by him. In the Compensation Court of New South Wales Manser CCJ found "that nothing really had changed, "it was business as usual", and the signed contract was "a mere formality". Handley JA at [162]: Almost all the matters relied upon by Mr Bruce QC for the appellantsnamely declaration of the shearers' wages by the owner, payment ofinsurance premiums thereon, payment of wages by the owner to theshearers, payment of the tax thereon and the signing of the writtenagreements are paper matters. Such paper matters can be no more effectivethan signed agreements in preventing a court from discerning the real natureof the relationship between the parties. For example the payments by chequeto the shearers can be viewed as payments made at the direction and withthe authority of the contractors. It is inherently likely that it was Mr Pitcheror his foreman who told the owner the persons to whom the cheques shouldbe made payable and the amounts. The payments to the shearers by thecontractors after the award variation can then be seen as reflecting the realrelationships between the parties. …. In deciding whether anything had really changed and whether there wassome actual difference the judge was entitled to consider as a matter of firstimportance whether there had been a change in the de facto control of themen by the contractors. The owner understood that he was not the realemployer and neither claimed nor exercised any control over the men eitherdirectly or through the foreman.
The "paper matters", however, are not irrelevant and should not be ignored. As Kirby ACJ said in Dalgety (at p 47) They may demonstrate … that the worker has acknowledged that he has been told of a change in arrangements previously existing; that a discreet new arrangement had been entered into for the particular work in hand; and that this was illustrated and confirmed by the paper arrangement which followed. See also WorkCover Authority of New South Wales v Billpat Holdings Pty Ltd (1995) 11 NSWCCR 565.

[8]

Application of principles

In deciding who employed the workforce working at the Park-Tec factory I am required to consider the whole of the circumstances proved to my satisfaction by the evidence to objectively determine "the reality of [the] purported contractual arrangements".
This does seem to be a case where there has been a change in the paper arrangements over the years. As a general starting point it is important to consider that BBG is the ultimate holding company of a group of other manufacturing and trading companies and doubtless with that authority it is entitled to exercise a large degree of control in the internal management of each of the other companies in the group. It is also entitled, doubtless, to put in place convenient administrative arrangements to streamline the management and operations of the group as a whole. But there is no suggestion that Park-Tec is in any way a sham. It is a company duly incorporated according to law. The evidence demonstrates: it complies with its statutory obligations in relation to financial reporting; obtains and maintains compulsory workers' compensation insurance; occupies premises; conducts manufacturing operations; owns plant and equipment; and supplies its products, mainly to BBG or as it directs, but also to some other customers, even if only with the prior approval of BBG.
Its books show that in 2004, 62 persons employed within the group (I am being deliberately neutral) were engaged in its operations generating a wages bill in the vicinity of $1.9m. In the 2003 financial year the wages bill had been considerably more.
Putting Mr Nicola to one side for the moment, many of the workers who gave evidence or who were mentioned in evidence worked solely in Park-Tec's operations, and had done so for many years. These persons include Mr Hawes, Mr Vu, Mr Vanthanvong, and Mr Baillon.
Mr Nicola had doubts about his employment status. I remind myself that his subjective beliefs are not relevant to the determination of this question. But the basis of them was his seniority, his obligation to report to senior management within BBG and his involvement with the general operations of the whole group in terms of committee membership, and a requirement that he from time to time engage in special projects. And to the extent to which control is an important factor in cases of this type, I am satisfied that lawful authority to command Mr Nicola, so far as there was scope for it, was vested in BBG: Zuijs v Wirth Bros Pty Ltd [1955] HCA 73; 93 CLR 561. I am satisfied that Mr Nicola was an employee of BBG, deployed to conduct the operations of Park-Tec on behalf of the group.
I turn then to the question of the employment of the others in the general workforce involved in Park-Tec's operations. In putting it this way, I have not lost sight of the fact that a contract of service is a personal engagement in respect of which it may not be appropriate to generalise. If the contract of service of every one of the 62 persons apparently engaged in Park-Tec's operations during 2004 was examined individually, one could not predict that the same employer would be identified for all.
Moreover, I am conscious that in determining as a mixed question of fact and law, (Connelly v Wells (1994) 10 NSWCCR 396) that BBG employed Mr Andonovski, the Court of Appeal was persuaded by what are often referred to as the paper matters or arrangements. However, that was "in the absence of an explanation from … someone more knowledgeable about group practices than Mr Nicola": Andonovski at [63]; and in circumstances where there was insufficient evidence "to enable a finding to be made as to the identity of the employer of the other employees who worked at" Park-Tec": Andonovski at [77].
I am also conscious that an influential factor was the provisions of Cl 7(a) of the Industrial Relations (General) Regulation 2001 (NSW), requiring the observance of certain important formalities in relation to the contents of payslips. In Andonovski at [62] Sackville AJA said that the obvious inference is that in issuing wages slips bearing its name and ABN, BBG "was acting in conformity with its statutory obligations as … employer". One may legitimately expect that a company, which was then publically listed, may strive to be punctilious in this regard.
However, when one considers the paper matters in the light of the oral testimony of Mr Nicola and Mr Hepburn which I have accepted, their persuasiveness is significantly diminished. Treating the signed applications for employment where they are available as a written contract of employment does not assist Park-Tec's argument. In each of the three cases where such a document was extant, it was issued in the following terms: Group employer - Galore Group Services Pty Ltd That company is now named Bosmana Pty Ltd (Exhibit 2D3). It is not a former name of BBG, and has a different ACN and ABN from BBG. As I have previously remarked, it is not one of the companies in the group insured by Allianz as at 2003 and 2004 (Exhibit 2D8).
Mr Nicola's evidence is that before Park-Tec moved to the Auburn premises, Park-Tec had its own payroll system to process its own pays in its own name. It is not clear to me when Park-Tec moved to Auburn. However, after that move, the current system was introduced where the payroll was centralised, being paid out of BBG who issued the PAYG summaries and kept the other records. However, the amount paid by BBG became a debt due from Park-Tec to the parent company. Mr Nicola said "the expenses allocated to Park-Tec so it is Park‑Tec's responsibility and it's paying Park‑Tec's workers" (419.20T). From this, I draw the inference that, in substance, the wages were paid by BBG effectively at the request of Park-Tec, always keeping in mind BBG's capacity to control Park-Tec.
It is also important to bear in mind that there is no evidence that there was any novation of any existing contract of service between Park-Tec and the worker at the time of the change in the administrative arrangements. I also accept Mr Hepburn's evidence that the role of the central pay office was the administrative function of processing the paper work. The evidence is that Mr Nettle signed the letter terminating Mr Andonovski's employment. And this was an important consideration in the Court of Appeal's analysis: Andonovski at [64]. But a degree of central control is not inconsistent with Park-Tec being the employer who is a party to the contract of employment with the other workers. The group structure justifies a degree of central control even in terms of personnel or "human resources" without derogating from the legal contractual arrangements between a subsidiary company and its employees.
Taken with the other factors I have referred to, the circumstances of the renewal of workers' compensation insurance for the 2004 year (referred to at [16] above) is powerful evidence of Park-Tec employing its own workforce. Notwithstanding the evidence of the paper arrangements to the contrary, I am satisfied on the balance of probabilities that Mr Hawes, Mr Vu, Mr Vanthanvong, and Mr Baillon worked at Park-Tec's premises under a contract of service with Park-Tec. That I have put Mr Nicola in a different category is not to the point, even though Mr Hepburn identified Mr Nicola's salary as part of the wages bill he spoke of in his statement, there is nothing inconsistent with his salary being allocated as an expense of Park-Tec when he was, amongst other things, its general manager. There can be no doubt that the longstanding employees like Mr Vanthanvong and Mr Vu worked under the day to day control of Mr Hawes in his capacity as operations manager. This aspect of control in the present context is of significance.
I accept it may be somewhat curious that the subordinates other than Mr Andonovski are employed by Park-Tec when he is employed by BBG. The evidence I have heard, of course, is different from the evidence that was before the Court of Appeal upon the rehearing of the separate question. But it does not follow that that decision is called into question by the evidence lead before me, or by my decision. As I have said, a close inspection of the circumstances of the employment of all 62 persons who performed work for Park-Tec during 2004 may throw up a number of different results as to who is each person's employer. It is not profitable to speculate further about that. Nor should I be taken as suggesting that that investigation should have been undertaken by any party at this hearing. However, it is worth bearing in mind that Mr Andonovski's main job was to drive the truck to deliver goods produced by Park-Tec as and when required. Given that BBG was Park-Tec's principal "customer" it may have made sense to a person in charge that he should be subject to BBG's control on a day to day basis as and when required. There is no necessary inconsistency between the conclusion I have reached and the decision made by the Court of Appeal.
Moreover, given that BBG was Park-Tec's major "customer" it makes sense that centralised financial control should occur to streamline operations. No doubt the expenses paid on behalf of Park-Tec centrally could be offset in the books of account maintained centrally against the price due to Park-Tec for goods supplied to or at the direction of BBG. Indeed, it is notable that in the 2004 year for which the financial report to ASIC is in evidence Park-Tec made a loss, as it did in the preceding year.
Against the background of the former relationships, before the move to Auburn, I am of the view that nothing really had changed in terms of the employment status of the workers who continued to perform work in Park-Tec's operations.

[9]

Conclusions about Park-Tec's duty of care

I am satisfied that Park-Tec is an occupier of the premises. The lease is not in evidence before me and I am unable to say whether it is entitled to sole, exclusive possession of the premises. This is of no great moment in my view. Park-Tec is a real company carrying on extensive operations in the manufacture of barbeques, gas heaters and other consumer durables from the premises. It employs a workforce there running, probably, to tens of workers. It maintains plant and equipment on the premises, some of which is its own property and recorded in its assets register, others it hires in its own name from suppliers, such as TNT.
Mr Andonovski is not Park-Tec's employee but at least when on the premises, as opposed to being out delivering goods, he worked under the direction of Mr Hawes and Mr Vu, both of whom I have found were employed by Park-Tec, even if, as Mr Vu said, Mr Andonovski was familiar with the system of work in the factory when he was performing duties there, and did not need much direction.
At the time he was injured Mr Andonovski was engaged in the collection of waste cardboard for recycling. The system for the collection of waste for that purpose was devised by Mr Hawes, a Park-Tec employee in consultation with Mr Nicola who specifically approved of it (see Exhibit 2D2; 420.25 - 421.35T; 465.5 - .35T and 470.45 - 471.5T).
More significantly, as occupier Park-Tec had primary responsibility for the condition of the premises and their safety as a workplace.
In Thompson v Woolworths (Qld) Pty Ltd [2005] HCA 19; 221 CLR 234 a unanimous High Court recognised that the scope of the duty owed by an occupier, depending upon the nature of the relationship between the occupier and the entrant may extend beyond the exercise of reasonable care in relation to the condition of the premises, to risks arising out of the nature of the activities conducted on the premises, assuming the occupier is in a position to control them. There is no question here that Park-Tec is in a position to control of the activities on its land, including its own operations. In Thompson the occupier's duty "covered not only the static condition of the premises, but also the system" it had established for the delivery of goods: ([26]).
Bostik Australia Pty Ltd v Liddiard [2009] NSWCA 167; Aust. Torts Rep. 82-020 Basten JA spoke of the duty which an occupier may owe to the employee of others in the following terms at [139] - [140]: The fact that an employer may be obliged to take reasonable steps to provide a worker with a safe system of work, does not preclude the existence of a duty owed by others to take reasonable care in their dealings with the worker, whether they be other employees, independent contractors, the occupier of premises which the worker is required to attend in the course of employment or other road users encountered in the course of travel. Where work is undertaken on the premises of a third party, that party may have a duty, which commonly arises from: (a) the degree of control or direction exercised or which the third party is entitled to exercise over the worker; (b) the condition of plant or premises under the control of the third party, or (c) the activities of others on the site, generally for the purposes of the third party's undertaking or business. The third situation may be put to one side for present purposes. The facts fall within a combination of the first and second elements. Thus, the system for clearing rubbish involved the use of the 44-gallon drums, which were provided by the appellant and the use of a forklift which did not fit under the roof of the smoko shed, which was also provided by the appellant. On the other hand, it is clear that the appellant did not seek to control the activities the plaintiff, nor direct him as to how to perform those activities. A clear distinction immediately arises in the present case: not only did Park-Tec provide the equipment Mr Andonovski was to use; and devise the system he was to follow; it also installed the platform from which he fell as the place where he was to do the work; and was in a position to exercise control over him (and did so) at least when he was engaged in the work of collecting waste cardboard for recycling.
In my judgment, the duty Park-Tec owed Mr Andonovski whilst he was performing the work of collecting the waste cardboard for recycling was a duty to exercise reasonable care in the conduct of its operations to protect him from unnecessary risks of injury in the performance of the work; this duty fell into the quasi-employer category extending to require the exercise of reasonable care in devising and implementing a safe system of work and providing a safe place of work, as in TNT v Christie. The duty is undiminished by the consideration that BBG, as employer owed Mr Andonovski a non-delegable duty. But consideration of the nature of the relationship between BBG and Park-Tec may be relevant to questions of apportionment if both are negligent in the circumstances in which Mr Andonovski was injured.

[10]

The circumstances of the injury of 11th March 2004

The manufacture and assembly of Park-Tec's products generates a good deal of waste cardboard which is recycled. Mr Andonovski's main job is to drive the delivery truck delivering products to customers, mainly BBG retail outlets. According to Mr Hawes (Exhibit 1D17 at [20]) truck driving took up about 60 per cent of Mr Andonovski's time. Collecting the waste cardboard about 10 percent, and the remaining 30 per cent forklift driving and general duties. Mr Vu was his direct supervisor. Different waste contractors have provided different bins for the disposal of the waste cardboard over the years prior to March 2004. The bin in use in March 2004 is depicted in Exhibit B and Exhibit D. It appears to be a very large skip, the sides of which are considerably taller than a man of average height.
Over the years during which recycling was undertaken by Park-Tec there were four different systems employed including, the one in use at the time of the plaintiff's accident. The first system involved a taller skip than that depicted in Exhibits B and D. A worker had to climb a ladder attached to it to throw the cardboard over the lip of the skip. One of the employees suffered a manual handling injury with this system. Either because of this or because the contractor changed, a second system was employed which involved the employee walking into the skip to deposit the waste cardboard. This proved unsatisfactory because the cardboard could not be stacked high, I infer for fear of slippage of the stack. The third system involved the same bin that was in use at the time of Mr Andonovski's injury, but the worker had to stand on the ground and throw the cardboard over the lip of the bin. Another person was injured performing this work (424.35; 463.15T).
To avoid the need to throw the cardboard up and over the lip of the skip, the workers engaged in this activity fashioned a makeshift platform out of discarded pallets. During a safety audit conducted by Mr Hawes on 19th September 2003, he identified, firstly a large build-up of waste cardboard behind the recycle bin and more significantly the requirement for a platform to facilitate the loading of the waste cardboard into the skip. These were items 44 and 45 on his record of inspection (Exhibit 2D2).
The system for collecting recycled cardboard from the factory was described by Mr Vu in his oral testimony. As supervisor he would place a large cage in a central location in the assembly area of the factory (Exhibits B, D and in close-up in Exhibit 1D4). Each cage consisst of a galvanised steel frame of cubic dimensions with a floor and an open top. The frame sides, and I infer floor, are made of a rather open mesh wire, like cyclone fencing. Each of two sides is a gate which can be opened as illustrated in Exhibit B. When closed, the gate is locked in the shut position by two drop-pins referred to by Mr Vu as hooks. (Mr Hawes referred to them as drop-pins.) The mechanism is of a familiar rudimentary type where the hook in the vertical plane passes through a cylindrical fitting on the gate and on the adjoining frame.
Mr Vu said that sometimes cages became damaged and they would be put to one side for return to TNT. He (363.25T) and Mr Nicola (422.45T) both said that the drop-pins , would sometimes stick and it was necessary to hit them with a mallet or hammer to dislodge them to open the gate. If the photographs in evidence are anything to go by, at least some of the cages were not in an "as-new" condition. In Exhibit B, the frame is seen to be somewhat warped and the galvanisation has worn so that the poles are affected by rust. This is even more obvious in Exhibit 1D4.
The plaintiff said that the gates were often stuck and difficult to open (Exhibit A[12]). He was referring to a difficulty he experienced after the drop pins were dislodged. Neither Mr Vu nor Mr Nicola accepted that they were aware of this. Mr Vanthavong (Exhibit 1D9[28]) mentioned the difficulty with the drop pins. In his oral evidence he said he had experienced the gate sticking and it was necessary to pull it to open it (378.20T). He never complained about the difficulty with the drop pins or with the door getting stuck to any of his supervisors.
I am satisfied on the balance of probabilities that through wear and tear in the factory, and due to their age, some of the cages would become damaged, making it difficult to open the gates. The drop pins had to be knocked out with a hammer and the frames would sometimes be misshapen requiring the application of force to free them. The system allowed for damaged gates to be taken out of service and returned to TNT from whom they were hired. But this was not always done promptly. Mr Vu said it was not his job to check the cages before they were put into service on a given day to see whether any one of them was damaged. He checked sometimes because there were women working in the factory. I infer he was solicitous of their welfare (361.50 - 362.40T). I infer that there was no real system for checking the cages to see if they were serviceable, although if damage was noticed, as I have said, the cage would be withdrawn from service.
As I have said, Mr Vu would place a cage in a central location for receipt of discarded cardboard. The gate was left closed because the cardboard was light and could be placed in the cage easily through its open top.
Once the cage was full it would be removed by forklift for emptying into the recycling skip. The platform that Mr Hawes recommended was approved by Mr Nicola in September 2003. But the approved recommendation was not implemented until about 1st March 2004. As can be seen from the photographs, the platform has the appearance of a large table or workbench with a steel frame. Its dimensions were not specifically proved in evidence, but Mr Nicola accepted that it was about 1m in height (463.20T). A small metallic framed stepladder consisting of four steps was placed at one end for access to the platform. The forklift driver would place the cage, which was lifted sitting on a pallet, at one end of the platform, alight from the forklift, ascend the steps at the other end, open the cage and throw the cardboard it contained into the skip. The work was done by various people when available, including Mr Vu, Mr Vanthavong, a cleaner named Ounsy and the plaintiff (379.15T).
As can be seen from the photographs, there is no fence or railing around the platform as a precaution against the risk of a worker falling from it. Mr Nicola saw to it that a mesh fence was attached to the longer edge of the platform within a short time after the accident (Exhibit 1D11 [47]; 422.5T).
On the day of the accident Mr Andonovski had finished his driving work and had returned to the factory to undertake general duties. Mr Vu said Mr Andonovski did not have to be told to empty the cardboard as he knew the system. Mr Andonovski said he took a full cage on a pallet and placed it on the end of the platform. He ascended the platform and had difficulty with the drop pins which he dislodged using the hammer. He said the gate was stuck and he pulled it three times before it flew open causing him to lose his balance and fall to the ground over the unfenced edge. He said he hit the ground with his left foot and ankle, lower back, neck and shoulder.
There is no issue that Mr Andonovski fell from the platform.
Mr Vu left the factory to go to the yard in the course of his duties when he saw Mr Andonovski sitting on the concrete in the yard. A contract cleaner whom Mr Vu cannot remember, was rendering assistance. When Mr Vu asked what happened, the cleaner told him that Mr Andonovski had fallen from the platform. Mr Vu reported the accident immediately to his superiors including Mr Hawes. Mr Vanthavong, who as I have said, was a leading hand is also qualified in first aid. He was called to assist and Mr Andonovski told him that he had fallen from the platform. The only complaint Mr Andonovski made about injury was to his foot. Mr Vu said that he did not mention any other part of his body. I will return to this point later.
Mr Vanthavong completed the accident report which is Exhibit 1D10. He is generally known as Noi at the factory. He recorded the history of the fall, an injury to Mr Andonovski's ankle and expressed his opinion that Mr Andonovski had missed his footing. For what it is worth, he recommended, as a solution to the recurrence, that Park-Tec "find a better way to dump cardboard".
Mr Hawes said that when he attended the scene of the accident, Mr Andonovski was sitting in a chair. He continued (Exhibit 1D17 at [28]): I asked [Mr Andonovski] how are you? He said, my leg is very sore and starting to swell. I said did you hit your head or anything else? He said no. I asked what happened? He said, I was opening the cage, it was stiff or jammed. I pulled on it and it gave way. I toppled back falling off the platform onto the ground. Mr Andonovski said he would like to get back to work, but when Mr Hawes and Mr Vanthavong assisted him to stand, he could not put any weight on his left leg. Mr Hawes decided he would have to go to hospital, but Mr Andonovski protested, eventually agreeing to be taken to Auburn hospital by Mr Vanthavong.
After Mr Andonovski attended the hospital he was returned to work where Mr Nicola spoke to him and received an account of the accident, including that the gate "was stiff". Mr Nicola asked about his injuries and did not receive any information about any injury other than the injury to his left foot. It was in this discussion that Mr Nicola suggested that a rail "or something similar" could be placed around the platform (Exhibit 1D11[29]).
In cross-examination Mr Andonovbski agreed that it may be necessary for him to empty up to about six cages on any given day (107.5T). I interpolate that some of his evidence is clearly erroneous. For instance, he agreed that the platform had been in place "the entire time that he had been working" (107.10T). This is supposed to mean over all the years he performed work at Park-Tec. The evidence is clearly inconsistent with the evidence of Mr Hawes and Mr Nicola about the circumstances in which the platform was introduced, which I accept. He also said that sometimes the gates are easy to open, but "they're not in exactly prime condition" (108.30T).
During the course of cross-examination, learned counsel for Park-Tec made it quite clear that there was no issue that Mr Andonovski fell nor was there any issue "that the cages were a bit rickety and might even stuck" (sic) (124.15 - .20T). There was an issue about the direction of fall and what part of Mr Andonovski's body hit the ground. There was some confusion in the evidence, through no fault of counsel, about the direction which Mr Andonovski fell, but the sketch he drew at the foot of Exhibit B indicated that he fell off the end of the platform where the steps were placed (128.45T; 130.5T).
He was also cross-examined about his familiarity with the cages, the fact that if the gate was stuck it might have been better to get help; that he should have taken more care in the limited space; that he had never complained about any difficulty with the gates to anyone in authority at Park-Tec; and that he was rushing. He denied each of these propositions.

[11]

The liability of Park-Tec

The question of the negligence of Park-Tec has to be decided by application of s 5B Civil Liability Act 2002 (NSW). As is well appreciated the section operates against the backdrop of the law of negligence: Roads and Traffic Authority of New South Wales v Refrigerated Roadways Pty Ltd [2009] NSWCA 263; 77 NSWLR 360 at 443. In this case, that backdrop is a duty analogous to that of an employer.
Park-Tec denied that the three conditions set out in s 5B(1) were satisfied. In particular, it argued that I should not be persuaded that the risk of harm was "not insignificant" in accordance with s 5B(1)(b).
Section 5B applies to cases where the defendant is alleged to be negligent by failing to take precautions against a risk of harm. The starting point for the assessment of breach is the correct identification of the relevant risk of harm, because the question of whether a reasonable person in the position of the defendant would take the suggested precautions (s 5B(1)(c)) can only be answered by reference to a correctly identified risk: Roads & Traffic Authority v Dederer [2007] HCA 42; 234 CLR 330 at 337 [18] and [59]. Here, in my judgment, the risk of harm was the risk that a worker would suffer personal injury by falling from the unguarded platform by missing his footing or through misadventure. The precaution that it said the defendant failed to take was attaching a safety rail or fence around the open edges of the platform.
The first condition is whether the risk was foreseeable in that the defendant knew or ought to have known of it: s 5B(1)(a). This question is the same question posed for the assessment of breach by Mason J (as the Chief Justice then was) in Council of the Shire of Wyong v Shirt [1980] HCA 12; 146 CLR 40 at 47 - 48. As summarised by Gummow J in Rosenberg v Percival [2001] HCA 18; 205 CLR 434 at [64] the formulation is: A risk is real and foreseeable if it is not far-fetched or fanciful, even if it is extremely unlikely to occur. The precise and particular character of the injury or the precise sequence of events leading to the injury need not be foreseeable. (See Chapman v Hearse [1961] HCA 46; 106 CLR 112 at 120 -121; Shaw v Thomas [2010] NSWCA 169 at [43].) In my judgment the risk of personal injury through a worker falling off the platform was plainly foreseeable. The question must be answered in the context of the nature and scope of the duty of care. I have held that the duty owed by Park-Tec to Mr Andonovski was analogous to that owed by an employer to its employee. The question of foreseeability is not to be measured by reference to an expectation that workers will exercise reasonable care for their own safety. Rather the employer is obliged to take into account "the possibility of thoughtlessness, or inadvertence, or carelessness, particularly in the case of repetitive work" or mundane tasks: Czatyrko v Edith Cowen University [2005] HCA 14; 79 ALJR 839 at [12]; Smith v Broken Hill Pty Ltd (1957) 97 CLR 337 at 342 - 343. I am satisfied that the risk of falling from the unguarded platform was foreseeable in the sense required under the Act.
In my judgment, it is not necessary for the reasons I have explained, to determine whether it was reasonably foreseeable to a quasi-employer in the position of Park-Tec that the gate would become jammed, even after the drop pins had been freed, and that a worker would fall because of the sudden release of a jammed gate induced by repeated attempts to free it. As I have said, foreseeability does not depend upon a plaintiff demonstrating that the precise manner of injury, or the precise sequence of events, which lead to it were reasonably foreseeable. Against the possibility that I am wrong about this, even if I disbelieve the plaintiff's evidence about complaints he said he made (a point to which I will return), given what was known about the age and condition of some of the cages, and the absence of an organised system of inspection of them, it was reasonably foreseeable that a cage gate might jam and that through inadvertence, or a misguided desire to complete the job, a worker would attempt to force the issue by repeatedly pulling at it to free it. The foreseeable consequences of such a sudden release of force include the person exerting the force, losing his balance, falling and suffering injury, especially when the fall is from a height.
The second condition which Mr Andonovski must satisfy to prove negligence is that the risk is "not insignificant": s 5B(1)(b). Park-Tec argues that I could not be satisfied of this condition. Reference is made to Benic v State of New South Wales [2010] NSWSC 1039 at [101].
In Benic, Garling J, inter alia, held that "the phrase "not insignificant" is intended to refer to the probability of the occurrence of the risk". With respect, I agree. His Honour also held that the assessment of that consideration is not a mere question of fact, but involves an evaluative judgment. Again, with respect I agree: see Jaensch v Coffey [1984] HCA 52; 155 CLR 549 at 471.
In Wright v Optus Administration [2015] NSWSC 160 at [117] I said that "a risk may be ""not insignificant" even though it has a low probability of occurring; a risk maybe "not insignificant" even if it is unlikely to occur. On the other hand, a risk that is extremely unlikely to occur is insignificant". I would add a "not insignificant" risk enjoys a lower probability of occurrence than a risk which is not unlikely to occur.
It is s 5B(1b) which changes the common law approach to the assessment of breach, making it somewhat harder for a plaintiff to prove negligence. As Macfarlan JA had it in Shaw v Thomas [2010] NSWCA 169 at [44], s 5B(1)(b) imposes a more demanding standard than the common law approach "but … not by very much".
With respect, Park-Tec elided the concept of probability of the occurrence of the risk with its magnitude: it was argued that "the mere possibility that there might be serious harm is not sufficient without more to fulfill the requirement of identification of the harm as being not insignificant" (Written Submissions page 6[25]). To my mind the seriousness of the harm relates to the magnitude of the risk, a matter to be considered when considering s 5B(1)(c) or, at common law, "the response of the reasonable man". It is true enough that the probability that the harm would occur is considered again in that evaluation. However, what s 5B(1)(b) does is introduce an additional step which brings the probability of occurrence into consideration as a separate question between the foreseeability question and the reasonable response question. Park-Tec also argued that I would not find the risk was "significant". The phrase "not insignificant" was deliberately chosen. The double negative is intended to impose a higher bar, but not by very much; it does not equate with significant.
In any event, I am satisfied that the risk was not insignificant. Requiring a worker to work on an unfenced platform in circumstances where he would be required to perform the task facing away from the open edge, involves a clear risk of him falling. I would not regard the risk of injury by falling from the unfenced platform as one having even a low probability of occurrence. I am satisfied that the risk was not insignificant.
It is necessary then to turn to the s 5B(1)(c) question, whether a reasonable person in the position of Park-Tec would take the precaution of installing a fence or railing on the open edges of the platform. In deciding this question, I bear in mind, amongst other things, the requirements of s 5B(2). I also bear particularly in mind the provisions of s 5C(c), given the installation of the mesh fence, at least on the long side, after the event.
Although, the evidence is not entirely clear, it does seem, as I have already found, that Mr Andonovski fell off the end of the platform where the step ladder is, rather than off the longer edge. The mesh fence installed later would not have been an effective precaution against the risk of a worker falling this way.
There is no expert evidence about the practicability of installing a fence with a gate at the end of the platform. But Park-Tec accepted it would be open to a lay person to make that assessment. It is not a technical question beyond the experience of an ordinary juror: (502.15T); Swain v Waverley Municipal Council [2005] HCA 4; 220 CLR 517 at [19] (Gleeson CJ) and [44], [45] (McHugh J); Bressington v Commissioner for Railways NSW (1947) 75 CLR 339 at 348.
Given the nature and content of the duty of care I have found that Park-Tec was subject to, the following passage from Czatyrko (at [14]) is apposite: Compliance by the respondent, as an employer, with its duty of care to an employee was not to be measured by reference to the reasonableness of imposing on an occupier of land an obligation to warn members of the public about the obvious risks on the land. The case for the appellant was not that he should have been warned by his employer that if he fell off the truck he might suffer injury, or that if he stepped off the back of the truck into space he would fall. It was not a question of warning the appellant of a risk. It was a question of creating a risk by failing to adopt a safe system of work. In this case, Park-Tec created the risk by failing to provide a safe place for the plaintiff to perform his work.
I am satisfied that a reasonable person in the position of Park-Tec would have taken the precaution of fencing the platform, including a gate at the end where workers gained access to it at the time the platform was installed for use at the beginning of March 2004
As I have already said the probability that personal injury would be suffered by a worker falling is not low, it was moderately high; a sudden unexpected fall from a height of around 1m onto concrete was likely to result in a significant personal injury, perhaps involving, as here, fracture requiring medical treatment and time off work; indeed the injury could have been much more serious if a person fell and struck his or her head on the concrete; and the burden of taking the precautions of installing a fence was not great. There was no evidence of the cost actually incurred putting up the mesh fence without a gate later, but it could hardly have been disproportionate to the risk. No question arises about the social utility of Park-Tec's operations. They were lawful, and enterprise is to be encouraged, but not at the expense of the law excusing negligent conduct.
In my judgment the plaintiff has established that Park-Tec was negligent.

[13]

Contributory negligence

Park-Tec argued that Mr Andonovski was guilty of contributory negligence. That argument in part depended upon a view that the duty owed by Park-Tec was that of an occupier, even if in the Thompson v Woolworths sense, rather than the duty owed by a quasi-employer. I have found against Park-Tec on that issue. The factual basis for the argument is that the plaintiff was aware not only that the drop pins sometimes stick, but also that the gate sometimes jams. In those circumstances, given his elevated workplace, it was unreasonable for him to persist in exerting effort on three occasions to open the gate. He should have foreseen that the gate might "fly open" (521.5T) subjecting him to a sudden release of force sufficient to propel him off the platform.
The question of contributory negligence is to be assessed in accordance with the requirements of s 5R Civil Liability Act, the onus in that regard rests upon Park-Tec. It is also important to bear in mind that given the nature of the duty I have found Park-Tec owes Mr Andonovski, particular considerations apply: as I have already pointed out the employer must take into account the question of thoughtlessness, inadvertence or carelessness on the part of Mr Andonovski, particularly in a case of repetitive or mundane work of a type involved here.
Moreover, where an "employer's" duty extends to devising and implementing a safe system of work, an employee injured by an incident of the system will generally not be guilty of contributory negligence: Davies v Adelaide Chemical and Fertilizer Co Ltd (1946) 74 CLR 541 by Dixon J at pp 552 - 3. The same, I think, may be said of hazards arising from the nature of the place the employer has provided for the performance of the work, such as an unfenced, elevated platform.
Doubtless there are other things Mr Andonovski could have done to deal with the jammed gate, he might have got help or perhaps used his hammer to knock the gate open, rather than exerting effort to pull it open. But in acting as he did, he was using the equipment provided by Park-Tec at the place they had designated. He did not disobey any directions or warnings and he was given no instruction in the procedure to be adopted if a gate jammed. The task was mundane and the work to some extent familiar and repetitive. These are the very type of circumstances in which dangers may be obscured when viewed from the standpoint of the employee.
As I have said, the onus of proving contributory negligence lies upon Park-Tec. In my judgment, in pulling at the gate Mr Andonovski was doing no more than trying to get on with his job. That he persisted when others may have paused for reflection, amounts to nothing more than the type of thoughtlessness, inadvertence, carelessness or misjudgment generally overlooked in the case of employees due to the law's solicitousness of their welfare: Ashrafi Persian Trading Co Pty Ltd t/as Rosyln Gardens Motor Inn & Anor v Ashrafinia [2001] NSWCA 243; (2002) Aust. Torts Rep. 81-636 at [64].

[14]

Apportionment of liability

Park-Tec argued, if it was adjudged negligent, that liability for the purpose of assessing contribution should be apportioned between it and BBG equally. BBG argued it should not be required to make any contribution, and certainly no more than 10 to 15 per cent.
Park-Tec's approach was, of course, based upon certain propositions which I have rejected. Those propositions include that its duty was a somewhat more attenuated duty of an occupier rather than an employer-like duty; and that all of the supervisors under whom Mr Andonovski worked at Park-Tec were employees of BBG. I have found that only the General Manager, Mr Nicola, was an employee of BBG.
BBG's argument that it should contribute nothing was based upon the principles expressed by Basten JA in Dib Group Pty Ltd t/as Hill & Co v Cole [2009] NSWCA 210 at [54] - [55]. The argument was that because the new system for collecting or accumulating the waste cardboard had only been in place for about 10 days before the accident, BBG had no knowledge of it and there could be no evidence that reasonable care on its part required any inspection of the platform or consideration of its appropriateness. This is an argument that the risk of harm was beyond its effective control.
Both Park-Tec and BBG agreed that if apportionment was called for it should be approached in a manner described by Harrison J in Hoad v Peel Valley Exporters Pty Ltd [2008] NSWSC 981 at [152]. In that passage Harrison J derived a number of relevant factors from the analysis of McColl JA in Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99 at [33] - [51]. I think they were really factual considerations arising in the circumstances of that case rather than statements of principle by his Honour.
The general principles to be applied in cases involving contribution under s 5 Law Reform (Miscellaneous Provisions) Act 1946 (NSW) are not in doubt and are to be found in the oft-cited passage Podrebersek v Australian Iron and Steel Pty Ltd [1985] HCA 34; 59 ALR 529 at 532-3. It is unnecessary to set out the passage again. The whole conduct of each negligent party in relation to the circumstances of the accident must be subjected to a comparison for the purpose of determining the relative culpability and causative importance involved in the negligence of each of them.
It needs to be borne in mind that each of Park-Tec and BBG owed Mr Andonovski a duty of the same nature and having the same content and scope. Moreover, the case does not fall in to the so-called "labour hire" category. BBG was Park-Tec's ultimate holding company. Park-Tec had its own operations, but they were not entirely independent. It was subject to the direction or control by and from BBG, and BBG exercised this right, at least from time to time. The General Manager, Mr Nicola, was an employee of BBG. He was involved not only in running Park-Tec but also in the executive group of BBG: see CRS Limited v Wren. Mr Frost was the group safety officer who attended the premises from time to time in the course of his duties.
Not all of the staff who had responsibility for Park-Tec's operations were, however, employees of BBG. The operations manager, Mr Hawes, the supervisor, Mr Vu and the leading hand, Mr Vanthavong, were all employees of Park-Tec, which was not a mere corporate shell for the purpose of financial efficiency in corporate internal management. Given that Mr Nicola had broader group-based responsibilities, the day to day operation of Park-Tec's manufacturing business was more in the hands of its own employees. Mr Hawes is the person, following his independent safety audit, who devised the new system introduced in early March 2004. However, it was introduced with the specific approval of Mr Nicola, whose knowledge of it, given his seniority, should be taken to be knowledge of BBG.
At the same time, it was Park-Tec who created the risk by installing the platform without adequate safeguards against the risk of an employee falling. There is no explanation for the delay between devising the system in September 2003 and implementing it in 2004. There is no evidence that the group safety officer had any input into the matter or that he was consulted in any way.
That Park-Tec created the risk, and it had day to day control of its own operations, systems of work and place of work persuades me that its share of responsibility is greater than BBG's, even though as I have said BBG was no mere labour hire company and its leadership of the group gave it ultimate control. The appropriate division of responsibility, in my judgment, is Park-Tec as to 70 per cent and BBG as to 30 per cent.
There are two other aspects. First, the process of apportionment is affected by the provisions of s 151Z(2) of the 1987 Act. This can only be attended to after the assessment of quantum. Secondly, BBG is pressing a s 151Z(1)(d) claim for indemnity. There are some complexities. Park-Tec has pleaded a statutory bar which will deny BBG recovery for any payments made more than 6 years prior to the filing of its cross-claim on 24th July 2012. There is no evidence as to what payments of compensation, other than weekly compensation, were made when, and the evidence is that the great majority of payments were made in respect of the separate claim for the injury of 28th May 2004, the bus accident. That factor may raise a question about the applicability of the principles discussed in Kempsey District Hospital v Thackham (1995) 36 NSWLR 492 which has not been addressed by the parties. The parties accepted that there may be a need for them to consider my findings and reasons before the final entry of judgment: there is an agreement between Mr Andonovski, BBG and the bus accident defendants that the out of pocket expenses referable to the bus accident are $15,000 (493.50T). However, Park-Tec is not a party to that agreement. Accordingly the agreement does not assist the resolution of this issue.
The evidence of Mr Egelton contained in his statement of 16th December 2013 (Exhibit 2D5) does not provide a chronology of payment of the medical bills or a description of the service provided.
All counsel sought the opportunity to address this problem, as I have said, after my judgment was published: (454.15T; 458.15T; 458.15 - .40T; 520.20 - .40T; 538.10T).
It will then be necessary for me to assess the allowance for some heads of damage and give the parties an opportunity to agree on the others with a view to bringing in short minutes of order.

[15]

Liability for the bus accident

The bus accident defendants have admitted breach of duty of care in relation to the circumstances of the collision between the bus and the truck on 28th May 2011. They have not admitted liability because they do not admit that the plaintiff suffered any injury in the collision. This stance is based upon the joint report of the orthopaedic surgeons (Exhibit 1D7); Dr Y.K. Lee, a treating doctor, Dr Brian Stephenson, retained by BBG, Dr Anthony Smith, retained by Park-Tec and Dr David Maxwell retained by the bus accident defendants. On the assumption that the account given by the bus driver was correct, the panel agreed "that the forces involved in the bus accident were so minimal there were no significant external forces involved so it would be impossible for the plaintiff" to have suffered any injury in the accident (Exhibit 1D7[8]). In oral testimony, Dr Maxwell said that he would regard "a collision of probably 20 to 30 kilometres an hour" as sufficient to cause soft tissue injury (at 225.5T). Dr Smith agreed (226.10T). Drs Stephenson and Lee were not so dogmatic. Dr Stephenson thought that if the impact was heavier than the bus driver said "there may have been a force transfer directly on the shoulder and also some other force, twisting force for instance" to cause injury (226.5T). Dr Lee said (227.5T): So if the bus was struck on the front or if the bus struck something it would be the left side that was thrown on to something. But if he had his right arm holding on to a rail or something then anything can happen. Dr Lee was of the view that a specific velocity was "irrelevant". The significant factor is the actual mechanism of injury (227.10T).
Accordingly, it is necessary to make findings about what occurred in the bus accident. I appreciate that I am dealing with the matter a little out of sequence but it seems better to deal with the liability issues before turning to the question of damages even though it may be said that there is no real connection between any injuries suffered in the bus accident and the injuries flowing from the work accident.
The account given in [16] of the plaintiff's evidentiary statement dated 21st February 2013 (Exhibit A) was not read. From the admission of breach of duty of care it is not an issue that the plaintiff was travelling as a passenger in the bus which was turning right from Cowpasture Road into Bancroft Road Edensor Park. The account given by Mr Andonovski in his accident notification form (Exhibit 3D4) is that the bus in which he was travelling as a passenger hit the back of a truck and he twisted his right ankle and stretched and pushed his right shoulder and right elbow.
In his evidence-in-chief Mr Adnonovski said he was sitting on the left side of the bus in the disabled persons seat which faces into the bus. He was facing the middle of the bus not the front of the bus. He said the bus was moving and as it hit the truck he put his right hand out to hang on to "another seat or something". He injured his right ankle, elbow and shoulder. In cross-examination (299.45T), he said the driver of the bus was driving very fast between 30 and 50 kilometres per hour. He then appeared to agree with the suggestion that "the driver drove at a very slow speed and was actually slowing down" as he approached a queue of traffic in front which was stationary at the red light. He said that the truck was not a big truck maybe between 3 and 4 tonnes. He did not see the bus come to a halt and he did not see the truck reverse. He then said that "maybe" the truck reversed, "but I didn't see anything" because he was not looking to the front (300.45 - 301.5T). He was unable to agree that "the collision occurred because the truck backed into the bus which was stationary" (21.40 - 23.20T). He agreed that all the other passengers said they were okay, and he made no complaint of injury. He did not notice damage to the bus except that the wipers were dislodged and replaced by the driver (302.10T). He was asked the following: Q. Mr Andonovski, when you felt the impact of the truck and the bus it wasn't a big impact, was it? A. INTERPRETER: I heard, but it wasn't a very hard. He repeated, when there was confusion about what he had said: "it wasn't a very hard impact".
Mr Umar Ali, the bus driver, gave his evidence-in-chief by statement dated 10th September 2013 (Exhibit 3D7). His description of the accident is as follows: I was stopped with handbrake on and waiting for the lights to change to green, there were 10 vehicles in front of me and without warning the truck reversed to get out of the turning traffic and collided with the bus. … The other driver reversed his truck into a stationary bus without checking or warning if it was clear to do so. At first the truck driver said sorry and gave me his particulars as his truck had no damage. He estimated the speed of the truck at impact as 5 kilometres per hour. It had only travelled about 2.5 metres in reverse before the collision.
The plaintiff had given Mr Ali his name as a witness. He made no complaint of any injury and he recorded that no persons were injured in the documentation he was required to complete. No other person complained of injury.
The point of impact was the near side front corner of the bus. He said there was some damage to the left windscreen wiper and window panel and to the bumper bar. He described it as minor.
In cross-examination he could not recall that the front bumper bar of the bus had been damaged. It became clear that he was denying that it had been damaged (434.5T). The panel next to the windscreen was scratched but not damaged. He said the speed of the vehicle could have been as low as 2 kilometres. He denied it could have been faster. He said "it was just a little bump that only damaged the wiper" (435.5T). He agreed the bus was taken out of service, but said that was just a precaution. He denied that he had run into the back of the truck or that there was a severe jolt at the point of impact.
Other evidence indicated that the total cost of repairs was $1,699.50. The necessary repairs included front accident damage to body frame and "bumper bar centre and corners".
Another part of the thinking expressed in the joint expert's report (Exhibit 1D7 [12]), that there were no injuries suffered in the bus accident,t was the absence of any history of any initial medical treatment. However, it was made clear in cross-examination (214.45 - 219.30T) that the general practitioner, Dr G Au-Yeung (in his report of 12th June 2011 forming part of Exhibit G) said that Mr Andonovski consulted him on 1st June 2004 complaining of pain from the neck, right shoulder, elbow, wrist and right ankle. In particular he found a reduced range of movement in the right shoulder and swelling in the right ankle. He initiated treatment including analgesia, non-steroidal anti-inflammatories, physiotherapy and specialist referral. All of the doctors accepted that the assumption they had made about an absence of medical treatment was wrong. Dr A.K. Lee, the treating orthopaedic surgeon, also said that he examined him on 10th June 2004. He had an x-ray of his right ankle dated 2nd June 2004 in which the radiologist noted swelling of the right ankle. Dr Lee said that it was not very obvious by the time he saw him on the 10th "but it does indicate that he did have soft tissue injury to his ankle area" (212.50T). Dr Lee also had an ultrasound report of Dr Tan (Exhibit G p 15) which provided evidence of a partial tear of the supraspinatus tendon in the right shoulder. His findings on examination on 10th June were consistent with the ultrasound results. Dr Lee made a link between the bus accident and the shoulder and ankle pain (213.30T). On the basis of Dr Lee's account and the GP's report, I understood that all the experts accepted the assumption they had made was wrong.
I also record that when examined by Dr Ross Mellick on 10th June 2005 for the CTP insurer (Exhibit 3D10, tab 22) the doctor found swelling of the right ankle joint and limitation of movement and formed the view that he had a residual disability in the right ankle dating from the bus accident. For what it is worth he thought the right ankle injury was then incapacitating.
Especially given the concessions that Mr Andonovski made in cross-examination, I accept Mr Ali's evidence as to how the bus accident happened. I find that the truck in front backed into the bus. However, from the evidence of the damage to the front of the bus, and from Mr Ali's evidence that he asked the passengers whether they were alright, I find that the force of the impact was greater than he now remembers. He would hardly inquire after the welfare of the passengers if the collision was nothing. The extensive damage to the bumper bar, front paneling, and the cost of repairs suggest to me a sufficient jolt to cause a twisting or wrenching injury to Mr Andonovski's right ankle and right shoulder when he grabbed something to steady himself. In this regard I prefer the evidence of Dr Stephenson and Dr Lee that the mechanism is more important than a particular change of velocity. But the lower end of Dr Maxwell's range could be reached by a truck reversing quickly to get out of a queue of stationary traffic.
I accept the evidence of the GP and Dr Lee and find that he suffered appreciable injury to his right shoulder and right ankle. I note in passing there was no mention of any neck injury in the notification form of 8th June 2004.
I find that Mr Andonovski suffered appreciable injury to his right shoulder and right ankle in the bus accident, sufficient to complete and constitute the tort of negligence. On the evidence, the ankle injury was still giving him trouble on 10th June 2005.
I will now deal with quantum including the consequences, if any, of the bus accident.

[16]

Quantum

The most significant issue affecting the assessment of damages is the reliability of Mr Andonovski's account of the nature and extent of his symptoms and disabilities. I need to say at the outset that I have found, for a variety of reasons which I will express, that his testimony is not reliable and part of the explanation for that is conscious embellishment and exaggeration of his symptoms and disabilities for the purpose of maximising his claim. I say "part", because there are other factors at play. Human motivation and psychology is complex, and on the basis of acceptable evidence from the concurrent evidence of the psychiatrists, I accept that adoption of the sick role, or abnormal illness behaviour, may also partly be a manifestation of his ongoing psychiatric illness consequent upon those physical injuries which do exist. Cultural or social factors may also be at play. There may be something in the argument advanced on his behalf that extravagant displays of incapacity have been adopted to justify his unemployment since the work injury. Certainly, the evidence of his superiors and Park-Tec as recorded in their statements is to the effect that he was regarded as a good worker, in the sense that he did his job properly, he usually showed up for work, and did what he was told by his superiors (359.15 - .30T).
Emblematic of his extravagant display of disability is his (almost) constant use of the set of Canadian crutches he was provided with at in the beginning for his fractured left heel. He has presented to each and every doctor with them. A great deal of surveillance film was shown during the cross-examination of Mr Andonovski: Exhibit 3D12 taken on 9/5/12, 28/11/12 and 4/12/12; Exhibit 1D15 taken on 14/11/13; 16/11/13; 18/11/13; and Exhibit L, taken in August 2007 and shown in reply. During an interruption in the cross-examination he gave the follow evidence (at 78.15 - .25T): HIS HONOUR Q. Can you ever stand up without having some support of some kind, I mean external to your body? A. INTERPRETER: Yeah, I do need support even if I'm standing straight. Q. Are you telling me that you can never stand up unless you have the crutches to hang on to or something like a table to hang on to? A. INTERPRETER: I can't do it without any help either crutches or whatever, table or whatever happen to be around. This evidence proved to be untrue, even though it is conceded by the defendants that whenever surveillance was carried out, whether film was obtained or not, he had the crutches with him or nearby.
In dealing with this issue at this time, I think it well to point out that I accept the evidence of the joint orthopedic experts that Mr Andonovski suffered a calcaneal fracture of his left heel with some deformity which has progressed to subtalar arthritis. The existence of this injury is objectively determined by them having regard to their medical knowledge, diagnostic studies and, clinically, objective findings on examination, in particular, wasting of the left calf. Moreover, I accept the opinion of the joint psychiatrists that if he has such an injury then he is suffering from a depressive reaction to it, probably an adjustment disorder, which on the view of one (Dr Parmegiana) "had reached the degree of severity of a Major Depressive Condition over time" (Exhibit 3D1).
I also accept the evidence, which I will detail later, from both panels of experts that his overall condition results in a diminution of his capacity to work of a kind significant for a man previously accustomed to performing manual or semi-skilled work only. He does suffer ongoing pain. And has a significant degree of interference with the normal activities of daily life, the amenity of life, and his enjoyment of life. I make these findings now to put what I am about to say in its proper context.
It is also pellucidly clear that there is no medical need for the crutches these days (196.25 - 197.10T); there has been no need for them since the fracture healed within months of the work injury. I also accept the evidence from the panel of orthopaedists that even if one were to accept (which I do not) that Mr Andonovski suffers from the disputed injuries to his neck, shoulders and low back, they would not give rise to a medical need for crutches (205.25 - .35T). From this it follows, from an orthopaedic standpoint, that the surprising thing is not that there are occasions when he has been shown to walk quite freely without crutches. Rather, the surprising thing is that he uses them at all.
From the point of view of the panel of psychiatrists (Dr Parmagiani, Dr Brown and Dr Lewin) it is possible that he has persisted with the use of the crutches as a badge of his disability. Dr Parmagiani referred to "cultural issues and personal issues" where illness behaviour, including using the crutches, is a form of communicating the patient's personal distress to others (261.20T). Dr Brown accepted that such things "can occur" (262.10T) or that the crutches could be used as a "prop" (261.35T). Like Dr Maxwell, Dr Brown did not think Mr Adonovski was using the crutches properly (261.40T) and that accords with my own impression of what I saw on the surveillance film most of the time. I was left with the very firm impression from the evidence of the psychiatrists that the continued use of the crutches was not a manifestation of his depressive symptoms (260.40 - 261.10T). Dr Lewin referred to it as "a learned behaviour of a more diffuse origin". He had no opinion about what caused this (261.5T).

[17]

Mr Andonovski's credit as a witness

The attack on Mr Andonovski's credit is multi-layered. I have recorded my finding about Mr Andonovski's unreliability above and I will briefly document the arguments in regard to it and the extent to which I accept them: 1. It was submitted that his demeanour in giving evidence was most unsatisfactory and that he did not present as an honest and reliable witness. He was evasive, argumentative, volatile, voluble and abusive. He occasionally swore in court and clearly disliked being challenged by counsel. I am conscious that irritability is one of the symptoms of his psychiatric condition. This may explain some of his volatility and volubility. At the same time, his frequent overreaction might have been a device to avoid answering questions (262.15 - .30T). The fact that he has a genuine physical injury and an accepted psychiatric reaction to it, does not exclude exaggeration, embellishment and malingering (Exhibit 3D1 p 2). I accept that this litigation has been going on for a long time and that is a factor which would cause a great deal of frustration in a litigant. But I am satisfied that his presentation in Court was due to a combination of a desire to avoid answering questions, which was exacerbated by the irritability which is a symptom of his psychiatric illness. 2. Mr Andonovski was not straightforward or forthcoming about his previous motor vehicle and industrial accident history. A previous motor vehicle accident occurred in August 1991 and in his evidence-in-chief, the plaintiff said he was not injured (17.16T). This was manifestly erroneous. Following the accident he was admitted to hospital for two days complaining of low midline back pain; he was treated for a suspected mild closed head injury, and a suspected fracture of the vertebral body at T/12. This was never satisfactorily confirmed at the time, but some x-ray results suggested it. More recent X-Rays for this claim show it quite clearly, most doctors accepting that it is an old fracture. A claim for damages was made but he could not recall if he got anything or how much (45.50 - 46.5T). I found this difficult to believe. He also denied any previous work injuries in a statement he made to investigators in April 2004 (Exhibit 1D21[22], [23]). But it was shown that he suffered an injury on 11th February 1989, apparently involving a fracture of his right elbow (Exhibit 1D2); 3. Mr Andonovski was coy and somewhat inconsistent about his ability to drive (41.30T; 83.40T). This had some significance because his car is fitted with a foot clutch and Dr Lee had reservations about him driving a manual truck, accepting there may be significant differences driving a truck. I thought him cagey about this innocuous topic, which did not reflect well. He admitted he could hose his car down but not wash it, but he was evasive about how often he did that (39.15 - 40.15T). I had the impression he was trying to find out how much the cross-examiner knew; 4. When he had difficulty answering questions about the precise mechanism of his fall, he suggested "I must have lost consciousness" (115.40 - 116.5T). It is not uncommon for the victim of a sudden, unexpected fall to have difficulty describing precisely what happened. Even so this was an explanation he spooned up in an attempt to bring the questioning about that topic to a halt; 5. There was a lot of cross-examination about the difficulty with the cage gates jamming and in particular whether he had complained to anyone about that. I have detailed some of the evidence above and I do not propose to recite it here. I am not persuaded that his evidence of complaining about the gates jamming prior to his accident is truthful.

[18]

Surveillance evidence

I will deal with the surveillance evidence separately. I bear in mind that surveillance evidence services two purposes: first, it may affect a witness's credit; secondly, it may provide objective evidence of the plaintiff's capacity to do much more than he is prepared to admit to. I wish to make a general comment about that second topic. Certainly, Mr Andonovski presented as so disabled that he needed to use two crutches at all times. This is not true. But I will not repeat what I said above. But it has to be said that although I was left with the overwhelming impression, supported by the medical practitioners, that he was not using the crutches "properly", nothing the film showed him doing anything particularly arduous. He was not shown to be performing any heavy work in his garden; and he was not shown to be engaged in any other employment. Nothing shown on the film was outside the range of things that the orthopaedic surgeons said he was capable of, giving full weight to the objectively established injuries. Bearing this in mind I summarise the surveillance evidence as follows: 1. On 8th May 2012, he was at a shopping mall with his Canadian crutches. He did not appear to be using them to "unload" his injured left leg (197.20T). At times I had the impression from looking at the DVD that he was simply trailing the crutches as he walked along, not making any use of them to assist with his ambulation. He also stood near a mall socialising with apparent acquaintances, which from the joint report of the psychiatrists calls into the question the severity of his depressive reaction; 2. On 4th May 2012 he was seen to drive, he was also seen moving about his home. At one stage he seemed to be aware of the possibility of surveillance because he walked along the nature strip with a pronounced limp. He was later seen to hose his car. I formed the impression that at one stage when he was partially out of sight at the side of his house he was not using his crutches whilst he bent to rewind the hose; 3. On 14th November 2013, the plaintiff is observed around his home and again appears to be on guard against the possibility of surveillance as his apparently antalgic gait is much more pronounced notwithstanding the use of crutches; 4. On 23rd November 2013, he is observed to drive his vehicle, refuel it and walk at what might be described as a normal pace. He is then shown at the cemetery visiting his father's grave. He walks around the grave quite freely without the use of crutches. Poignantly, he offered his father some refreshment by pouring beer around the grave "to give his father a drink". He explained "I forget about my aches and pains when I go there" (141.10T).
Surveillance is an important means of eliciting the truth in personal injuries litigation. People who claim compensation have to accept that from time to time covert checks will be made on their activities to confirm, or not, the reliability of the account given of the nature and extent of their injuries and disabilities. It is in the nature of surveillance that it occurs when the subject is in a public place, or a place that can be easily viewed from a public place. Provided false pretexts are avoided, and situations of entrapment are not "set-up" by private investigators, the intrusiveness inherent in the process is justified notwithstanding the invasion of privacy involved. However, I confess to experiencing sensations of distaste viewing the surveillance film taken when Mr Andonovski was engaged in devotion to the memory of his late father at his graveside. The footage obtained on that day, at the cemetery and, upon his return home was the clearest evidence of Mr Andonovski freely ambulating without crutches even if they were to hand or very nearby. The film, therefore, has utilitarian value and I will put my sensitivities to one side.
I have not overlooked Exhibit L. This surveillance film from August 2007 was tendered in the plaintiff's case in reply and shows the plaintiff using his crutches "properly". Accepting that this shows a degree of consistency in presentation, as other surveillance shows inconsistency, one would continue to question the need for crutches more than 3 years after the accident.
I am satisfied that Mr Andonovski has no medical need for the crutches based upon either of his physical or psychiatric injuries. He has been using them as a prop. The reasons for this are complex, but do include a good deal of conscious exaggeration and embellishment, what some of the doctors refer to as malingering. Cultural and social issues of the type described by Dr Parmagiani, as a means of communication, are also in play. The long course of this litigation is likely also to have contributed. But as I have already said, his reliability as a witnesses is very significantly undermined by his exaggeration and embellishment; the degree of volatility and volubility which reflects in part, a desire to avoid answering questions; and the inconsistencies to which I have referred.

[19]

The nature of the injuries

The finding I have made about Mr Andonovski's unreliability as a witness makes it impossible for me to accept that he actually suffers from the full range of injuries he claims, notwithstanding the medical support he receives from some doctors, who did not join in the conference of experts or participate in the concurrent evidence. Dealing with the work injury, the plaintiff claims to have suffered: fracture to his left ankle; injury to his back; injury to both shoulders; injury to his neck and resulting psychological injury. Of these I accept he has suffered a fracture calcaneus with some deformity and resultant subtalar arthritis, as I have already found. As a reaction to this physical injury, he has also suffered an adjustment disorder. Given the findings I have made in relation to a degree of embellishment, exaggeration and malingering, I am not persuaded that the psychiatric consequences are sufficiently severe to justify a diagnosis of a Major Depressive Disorder.
In making these findings, I have relied most heavily upon the absence of any contemporaneous complaint of injury other than the injury to the left heel.
The earliest complaint of low back pain made following the accident, was to the GP on 8th April 2004 (the parties agree), some four weeks after the accident. Interestingly, Mr Andonovski also saw Dr Lee that day and made no complaint to him about that. It is abundantly clear that he made no earlier complaint and in particular made no complaint at the hospital about back pain.
Dr Smith said that he would expect symptoms of some significance within 24 to 48 hours (201.25T). Dr Stephenson said he would expect complaint of pain in the other areas "immediately after the fall" (201.35T). Dr Maxwell's evidence was the same (201.45T).
Dr Lee said he got a first complaint of back pain on 29th April 2004. He said at (202.5 - .25T): ….according to my notes when he came back to see me on 29 April 2004 he did complain of some back pain so that would be, how long after the injury was ‑ that would be about six weeks after the injury when he saw me he did complain of some back pain. Whether or not that would be the fact that he was too preoccupied with his ankle pain or whether it was something new and, I'm just reporting the facts, I'm not passing a judgment there. …. (COUNSEL) Would you have expected if he had suffered any other injuries as a result of that fall for him to have had symptoms when he saw you the next day [12 March 2004]. WITNESS LEE: I would expect that if he did have any significant injury to the back or other part of the body he would have mentioned that when he saw me [emphasis added].
In making these findings I appreciate that I am rejecting a considerable body of evidence that supports the plaintiff's case that all of these various complaints relate to the work injury. In particular he has considerable support from Dr Teychenne (who also gave oral evidence), Dr Matalani and Dr Ellis.
Dr Teychenne received an accurate history of the onset of back and leg pain "4 weeks after the accident" (Exhibit G p 43). He also received a history of eventual wasting of the calf muscle. Dr Teychenne is a neurologist and his nerve conduction studies he carried out on Mr Andonovski did not disclose "evidence of lumbosacral nerve root compression or cauda equina compression". Subsequent EMG findings were recorded by him as "consistent with a bilateral L5/S1 radiculopathy" (Exhibit G p 49). In his oral evidence Dr Teychenne was not asked any questions about the alleged back injury. His long report of 30th October 2013 (Exhibit G p 52) contains a review of the reports of other doctors who had seen Mr Andonovski over the long period of time during which the case was pending. The account of his own involvement seems to commence at p 13 (Exhibit G p 64). That report includes an account of numbness in the toes of the left foot and severe pain down the left leg, the day following the accident. Neither the GP nor Dr Lee recorded any such history. Dr Teychenne also records "he did however notice pain over the lower lumbar spine in the immediate period after the fall". On the facts as I find them to be this is a significantly erroneous history. At p 14 (Exhibit G p 65) he records constant stiffness within the lumbar spine within a week of the accident coupled with a restriction in movements. Again this is an erroneous history. Dr Teychenne may have found clinical signs of what he regarded as radiculopathy when examining the patient after October 2004, but he clearly received an erroneous history as to the onset of the symptomatology. His opinion does not cause me to change the views that I have formed on the basis of the evidence I find acceptable.
Dr Matalani's report of 17th November 2006 does not record any delay in the onset of the shoulder, neck and back symptoms. He received a history of Mr Andonovski falling from the platform and landing on his left ankle and leg, and merely records, no doubt on the history he received, that Mr Andonovski also injured the other parts and was then taken to Auburn hospital. The doctor diagnosed the comminuted fracture of the left calcaneus and related the vertebral body fractures in the thoracic spine to the fall because he received no history of any previous trauma, even though on x-ray appearances those fractures appeared old. An x-ray report of 16th December 1991, as I have indicated (Exhibit 3D10 tab 2) was reported as showing "anterior wedging of the body of T12" and mild spondylosis in the lumbar spine. He saw Dr Peter Giblin on 13th March 1992 who referred to the "question of a crush fracture at T12" but he was not convinced (Exhibit 310D tab 3). These fractures are clearly shown on more contemporaneous x-rays and, in my judgment are unrelated to the work injury. With the benefit of hindsight they are probably related to the trouble he had in 1991 and for which he sued for damages in the District Court. It is also notable that back in 1991 he had evidence of spondylosis which Dr Matalini saw on an x-ray dated 13th April 2013 (Exhibit G p 78). He made no diagnosis of radiculopathy. However, I reject his opinion about a relationship between a back injury and the fall because he received an erroneous history, and his views are contrary to evidence I accept.
A number of reports of Dr Max Ellis were tendered, but he was not called to give evidence as he was ill at the time of the trial. He received a history (Exhibit G p 91) of a slip and fall from 2 m "landing on his left foot and left side injuring his back, left hip, neck and left ankle". Again, this history includes the erroneous account of the immediate onset of back symptoms. On examination spinal movements were restricted to a few degrees only and straight leg raising was markedly reduced. Dr Ellis was of the opinion that in addition to the left foot injury Mr Andonovski injured his back, neck and left shoulder in the fall. He formed the view that he suffered radiculopathy affecting his left leg and he attributed the wasting he found, in common with some other medical assessors, to that. In circumstances where he received a history of an absence of any prior accident or injury, he attributed the compression fractures of the thoracic spine to the fall. Dr Ellis has seen Mr Andonovski six times over the years since August 2005. The history, complaints, findings and opinions recorded in his reports over that time have not changed except that Mr Andonovski seems worse on each occasion. Dr Ellis received an erroneous history in relation to the onset of back symptoms following the work injury and no history of the prior injuries, particularly the motor vehicle accident and the resulting back injuries. On this basis I reject his opinion.
I should also make reference to the evidence of Dr Clive Sun, a specialist in rehabilitation medicine and pain medicine. His 15 reports between 1st May 2005 and 17th May 2011 are in evidence (Exhibit G pp 21 to 42). Dr Lee referred Mr Andonovski to Dr Sun. By August 2004 Dr Lee was concerned about the continuing complaints of pain from Mr Andonovski and his apparent need to continue to use crutches. In his report of 9th August 2004, he stated "I cannot fully explain why he has so much pain, but his circulation appeared to be very poor in his foot". He sent him for further tests because of that latter sign, which raised with him a concern about the development of a reflex sympathetic dystrophy. In his report of 19th August 2004 (Exhibit G p 4) he indicated that if reflex sympathetic dystrophy was excluded he had in mind referring him to a pain specialist. It can be inferred that reflex sympathetic dystrophy was excluded because in March 2005 he referred Mr Andonovski to Dr Sun for pain management. Before he did so he commented that a sub-talar injection did not assist Mr Adonovski, which Dr Lee took as an indication that surgical fusion of the joint would not assist either.
Dr Sun first saw Mr Andonvski on 1st April 2005 receiving a history of the left calcaneal fracture from the fall and right ankle, right shoulder, elbow, neck and low back injuries in the bus accident. He remarked that "MRI scans showed disc protrusions in the neck and back. A CT scan of the left foot showed rotational deformity involving the subtalar joint". I interpolate that I do not understand Dr Sun's reference to protrusions as necessarily referring to lesions in the spine which require surgery. Dr Lee did not suspect more than degenerative changes in the neck and back.
In any event, Dr Sun has treated Mr Andonovski's pain over the years with ongoing hydrotherapy and strong analgesia; from time to time a tens machine has been used. Physiotherapy was prescribed and Mr Andonovski has seen a podiatrist, Mr Said, who has prescribed orthotic footwear (Exhibit G p 74). As Mr Andonovski presented to Dr Sun in January 2006 he was "reluctant to upgrade to walking step and was relying on crutches". Dr Sun appears to have accepted Mr Andonovski's many and varied complaints of pain and disability entirely at face value; perhaps that is the role of a specialist in pain medicine. But it is evident, for instance from his report of 17th May 2011 (Exhibit G p 39), that over the years the history has become somewhat addled. As at 17th May 2011, the principal focus seemed to be the bus accident. The work injury gets mentioned as "past history" only. Dr Sun recorded its circumstances as "a fall from the back of truck involving fractured thoracic spine, fracture of left calcaneus and strains to the left shoulder, neck and back". When stating his "conclusion", Dr Sun does not even make any mention of the left foot injury. He makes no assessment of permanent impairment in respect of it. In a previous report of 15th June 2010 (Exhibit G p 35), conversely, the focus was on the work injury. It is very difficult to make any sense, therefore of what Dr Sun says about diagnosis and causation.
All one can really say on the basis of the evidence is that Dr Lee referred Mr Andonovski to Dr Sun because he was concerned about the ongoing complaints of pain Mr Andonovski was making about his left foot condition and because of Mr Andonovski's continued (medically unnecessary) reliance upon crutches. Since he has assumed the care of Mr Andonovski, Dr Sun, as I have said, appears to have treated every complaint made at any time at face value. Given what I have said about Mr Andonovski's unreliability as a witness especially because of his tendency to gross exaggeration and embellishment, Dr Sun's reports are of no assistance in resolving the issues in this case. I have already referred to the desire of the parties to have an opportunity to apportion the out of pocket expenses once my findings are known. The confusion that arises out of Dr Sun's reports also suggests that this is appropriate.
Despite the uncertainties in the evidence, I have concluded that the only injuries related to the work injury are the fractured left calcaneus with consequential arthritis in the subtalar joint and an adjustment disorder because of his very bad reaction to his ongoing level of pain. I am not satisfied that he has any ongoing pain in any other part of his body. The thoracic spine fractures shown on the x-rays are old fractures possibly dating back to the car accident in 1991. The other matters shown up on x-rays, ultrasounds and other diagnostic tests affecting his neck, shoulders and back have not been shown to be other than degenerative changes of a kind one might expect to see in a man of Mr Andonovski's age with a lifelong history of engaging in manual work. I am not satisfied that those matters are causing any symptoms and Mr Andonovski's complaints about them are part and parcel of his embellishment.

[20]

The bus accident injuries

I have already found that Mr Andonovski did suffer an injury to his right shoulder and right ankle in the bus accident. The mechanism of this is likely to have been a wrenching or jolting injury as he attempted to steady himself from the acceleration/deceleration forces involved in the collision, which was not particularly heavy or hard, and certainly not severe; nor was it an insignificant impact. I find that the shoulder injury was a flair up or exacerbation of pre-existing degenerative changes in the ligamentous complex making up his rotator cuff. He had similar changes on the left side (see also Dr Stephenson 216.25 - .40T).
In the concurrent evidence, Dr Maxwell was prepared to accept Dr Lee's views about a connection between the bus accident and an exacerbation of the pre-existing rotator-cuff problem (213.25 - .40T; 214.45T). Dr Maxwell said "that doesn't mean to say he sustained a severe and long lasting injury to his right shoulder" (214.40T).
Dr Stephenson thought the pathology pre-existing, but probably asymptomatic at the time of the bus accident. He noticed the absence of any evidence of ongoing resolving haematoma in the shoulder in the bone scan taken in June 2004. Dr Stephenson "was not of the impression that there was significant injury [in] the bus accident" (216.20 - 217.35T).
Dr Smith did not believe there was any injury at all apart from his left ankle injured in the work accident (217.45T).
All of the experts agreed that the continuing complaints of pain in the right shoulder and right ankle "may well be a manifestation of … abnormal pain behaviour" (219.30 - .50T). All the doctors thought any right ankle injury had long since resolved (219.50 - 220.5T).
All of the experts agreed that the changes shown in the diagnostic investigations of the right shoulder were pre-existing degenerative changes (232.25 - .45T). Dr Lee agreed that there were signs and symptoms affecting the left shoulder also, although no complaint of the left shoulder being injured in the bus accident had been made (231.5 - 232.25T). It was entirely possible that he had injected the left shoulder with cortisone, rather than the right. Drs Stephenson, Maxwell and Smith agreed that any injury to the shoulder in the bus collision consisted of an aggravation of those previous changes (233.10T). Dr Lee did not provide any treatment to either shoulder beyond the injection given in June 2004 and shoulder complaints did not get much of a mention thereafter. (233.45 - 235.5T).
Dr Lee was inclined to think that the bus accident made the previous changes symptomatic. He was also of the view "if not for the accident" he quite possibly would have had pain in his right shoulder (221.30 - .45T).
All of the orthopaedic surgeons agreed that most cases of injury by way of pre-existing rotator cuff degeneration resolve within about three to six months (240.25 - 241.20T). A small number of people may have ongoing symptoms according to Dr Lee and Dr Stephenson (241.5 - .10T). Dr Maxwell and Dr Smith thought on examination there was a conscious degree of fabrication by Mr Andonovski in demonstrating his limited degree of shoulder movement. Dr Lee and Dr Stevenson did not agree (238.15 - .25T). Dr Lee thought that there was a degree of inconsistency involved. However, referring to the surveillance video of Mr Andonovski hosing the car, Dr Lee expressed the view that the range of shoulder movement demonstrated was within the restricted range that Mr Andonovski had demonstrated for him in clinical examination. Dr Lee thought the pre-existing pathology would still give some degree of stiffness in shoulder movement. He avoided saying whether Mr Andonovski still had some "injury". Dr Lee did allow himself the observation that Mr Andonovski "did not seem to have too much pain" as he was using the shoulder to hose the car (237.25 - .40T). I gained the impression that Dr Stephenson was largely in agreement with Dr Lee about these matters.
I accept that there has been a great deal of inconsistency in the plaintiff's presentation in relation to his right shoulder restrictions. This has been carefully summarised by learned counsel for the bus accident defendants in his written submissions at [33]. I will not detail it.
As the pathology in his shoulders is objectively determined, a matter I think accepted by all of the orthopaedic surgeons, I accept Dr Lee's evidence that Mr Andonovski continues to have the pathology affecting both shoulders and the pathology itself would create some restriction of the type described by Dr Lee in terms of work above shoulder height such as reaching up to prune high branches and the like. However, I am not satisfied that Mr Andonovski has any ongoing "injury" by way of continuing aggravation of the pre-existing condition resulting from the bus accident. I have reached this conclusion because although I am satisfied on the balance of probabilities that the impact was significant it was not heavy or hard. No one else, not even the bus driver who was closest to the point of impact suffered any injury whatsoever. Mr Andonovski's injuries happened because his shoulder was wrenched when he sought to steady himself in the collision. It was not a serious or severe trauma. Nor was it particularly significant. Moreover, only the right, and not the left, shoulder is said to have been injured in the bus accident. But by the middle of June he was complaining of some pain in both shoulders to Dr Lee, although the right was worse. I find a little worse only. The finding of signs and symptoms in the left shoulder was an entirely incidental finding. This indicates to me that any aggravation of the right shoulder condition was likely to be in the nature of an exacerbation rather than an ongoing aggravation.
When Mr Andonovski saw Dr Mark Burns for an assessment of permanent impairment under the 1999 Act on 21st June 2006, the clinical findings were worse on the left side than on the right (Exhibit 3D10 tab 25).
Having regard to the pre-existing pathology in both shoulders, the consideration that both have been symptomatic, that only the right is said to have been injured and the natural course of gradual resolution following an aggravation of pre-existing rotator cuff degeneration in the vast majority of the cases, I am satisfied that Mr Andonovski suffered an aggravation of his right shoulder condition in the bus accident which resolved within 12 months. He also sprained his right ankle. It is not contended that is a continuing problem. Given Dr Mellick's findings as at June 2005, I find that he had some ongoing trouble with it at that time, which Dr Mellick thought would give him difficulty at work.
Mr Andonovski saw Dr James Bodel for the workers' compensation insurer on 24th October 2005 (Exhibit 3D10 tab 24). He gave the doctor a history of injuring his right shoulder and right ankle in the bus accident on 24th May 2004. Dr Bodel found some mild impingement without instability in the right shoulder. He recorded no adverse findings in relation to the right ankle. He said (p 3): It appears that the soft tissue aggravation caused by the accident on 28 May 2004 has now settled, but the ongoing pathology relates to the original injury. He described the right shoulder condition as "some mild rotator cuff pathology". I am satisfied that this is the pre-existing pathology, and I am further satisfied, bearing in mind the evidential onus of disentanglement lying on the bus accident defendants, that Mr Andonovski had fully recovered from the injuries suffered in the bus accident by the time he saw Dr Bodel on 24th October 2005.

[21]

BBG's cross claim against Park-Tec under s 151Z(1)(d)

Returning to BBG's claim for indemnity from Park-Tec under s 151Z(1)(d) 1987 Act, the findings I have made regarding their respective liabilities prima facie entitles BBG to indemnity for any compensation paid by it in relation to the injury of 11th March 2004. I say prima facie, given my assessment of its common law liability, the principles established by s 151Z(2)(e) may be brought into play (see I & J Foods Pty Ltd v Bergzam Pty Ltd (1997) 14 NSWCCR 486); s 151Z(4) may be engaged; and Park-Tec, as I have previously commented, has raised a defence under s 14 Limitation Act. It is clear that BBG is not entitled to maintain an action for indemnity in respect of any compensation payments paid more than six years prior to it filing its cross-claim raising the claim for indemnity.
The evidence about workers' compensation payments is contained in the statement of Blake James Egelton dated 16th December 2013 (Exhibit 2D5). Mr Egelton is a "legal specialist" working for Allianz Australia Workers' Compensation NSW Limited which I will refer to as Allianz, which has managed Mr Andonovski's claims for workers' compensation.
I say claims because it is quite clear on the basis of Mr Egelton's statement that two claims have been made. One, in respect of the injury of March 2004, claim number 991402221163033; and another, in respect of the injury of 28th May 2004 bearing claim number 991502211188033. The injury of 28th May 2004 was a journey injury under s 10 1997 Act as it then stood.
Other matters arise out of Mr Egelton's evidence. Annexure "A" to his affidavit is a list of payments in respect of the work injury claim. After deducting unrecoverable legal and investigation costs, a total amount of $56,046.35 has been paid, including weekly payments of $11,525.13 between 12th March 2004 and 9th September 2004. These payments are clearly out of time. The balance of $44,521.22, presumably relates to medical and associated expenses. It is of interest that this compensation is said to have been paid on behalf of Park-Tec, not BBG (the policy number is MWP 0009639 which appears to be the policy which was renewed by Park-Tec as evidenced by Exhibit 2D8). If this is correct, it seems to me on the basis of Mr Egelton's evidence, this raises a question about whether s 151Z applies at all to this compensation as it appears to have been paid by the insurer on behalf of Park-Tec, not BBG. With respect, this question was not addressed by the parties and they should be given that opportunity.
This compensation seems to be the only compensation paid in respect of the injury of the 11th March 2004; and only compensation for that injury may be the subject of an action for indemnity against Park-Tec. I say this because Annexure B to Mr Egelton's statement is a list of payments in respect of the journey injury of 28th May 2004 which has a different claim number. Mr Egelton says this compensation totals $402,490.70 after deduction of unrecoverable or irrecoverable investigation and legal costs. The employer is said to be Barbeques Galore (Australia) Pty Ltd and the policy number is MWP 0025487. By reference to Exhibit 2D3 and Exhibit 2D8, Barbeques Galore (Australia) Pty Ltd is not a former name of BBG. It is a separate company with a different ACN and ABN. Its ABN appears to be 93 001 354 454. On the face of it, this is not compensation to which s 151Z applies at all because it was paid for a different injury: Kempsey District Hospital v Thackham (1995) 36 NSWLR 492; Franklins Self-Service Pty Ltd v Wyber [1999] NSWCA 390. 48 NSWLR 249; Birdon Marine Pty Ltd v Jepp [2009] NSWCA 147; and compare with Manser v Spry (1994) 181 CLR 428.
I will leave to one side the other obvious difficulty that this compensation appears to have been paid for a liability to pay workers' compensation incurred by someone other than BBG, even if that someone is another company in the same group.
Mr Egelton's statement does not contain any express evidence about operative mistake or how such a mistake might have been made. However, it does seem clear that there are at least some mistakes in record-keeping. For instance a sum of $23,979.44 paid to solicitors previously acting on behalf of BBG is not shown as part of the irrecoverable legal costs referred to in Mr Egelton's statement. More significantly lump sum compensation of $43,750 paid to Mr Andonovski referred to at [6] of Mr Egelton's statement is shown on Annexure "B" not "A". The entitlement to those payments arises out of the second medical assessment certificate of Dr McGroder dated 12th September 2011(Exhibit H). Dr McGroder apportioned impairment between the two injuries. For the injury of 11th March 2004 he assessed 15 per cent and for the injury of 28th May 2004 he assessed 5 per cent (p 7). It seems strange, therefore, that the whole of the lump sum should have been paid in respect of the second claim.
There is another issue arising which was not addressed by the parties but may be significant. To the extent to which compensation was paid for the injury of 28th May 2004, given my findings about that injury having resolved no later than October 2005, a question arises about the application of the principle against double compensation to my assessment of the damages to which Mr Andonovski would otherwise be entitled in respect of the injury of 11th March 2004. These principles are, of course, discussed in the cases of Thackham, Wyber, Jepp and Manser. Again, they were not addressed by any party before me. They were pithily summarised with his customary pellucidity, with respect, by Allsop P (as the Chief Justice then was) in Jepp at [18]. To make them relevant to the present case, I adapt them as follows: 1. As to past workers' compensation payments made and referable to the injury of 11th March 2004, these are to be included in Mr Andonoski's judgment, but refunded to the person paying them: s 151Z(1)(b); 2. As to future workers' compensation payments otherwise payable in respect of the injury of 11th March 2004, these are no longer payable; s 151Z(1)(b); 3. As to past workers' compensation payments made and referrable to 28th May 2004, these are to be deducted from Mr Andonovski's judgment for the first injury by application of the principle against double compensation (and so not refunded to the payer): Thackham, Wyber and Manser; 4. Given my findings there will be no liability for future workers compensation for the injury of 28th May 2004, and in any event to the extent to which damages are recovered, s 151Z(1)(b) would apply.
As I have said more than once I have not had the benefit of hearing from the parties about whether these principles are applicable in this case and if not, why not. More importantly they have not had the opportunity to be heard. It will be necessary to bring the parties back for further argument before the entry of final orders not only on BBG's s 151Z(1)(d) cross-claim, but also in respect of the judgments Mr Andonovski will be entitled to. Until this issue is disentangled, it is impossible to arrive at the final figures.
However, I propose to go on and assess the various heads of damage, so far as I can, subject to hearing any further argument about the interplay of these principles.

[23]

Damages for non-economic loss

I have not proposed to re-cap the evidence I have accepted or the findings I have made, except to reiterate that I accept Mr Andonovski fractured his left heel. The fracture involves the subtalar joint in which he has developed post-traumatic arthritis. In response to this injury and the changes it has brought in his life, he has also suffered a depressive reaction by way of adjustment disorder.
His orthopaedic injuries will be with him for the rest of his life and indeed in the natural order of things the arthritis is likely to progress causing greater pain and disability as time goes on. Notwithstanding what I have said about conscious exaggeration and embellishment, I accept that Mr Andonovski suffers significant pain. I accept he has fairly constant pain which is subject to exacerbations. I do not accept that his pain is such that he needs to use crutches for walking. As I have said, the pain will get worse. I accept that his depression affects him significantly. A combination of his physical and mental injuries detracts greatly from his enjoyment of life. His inability to work as before is something which weighs heavily upon him. Part of his mental problems relates to the protracted nature of the litigation, but I am not persuaded that he will greatly improve once the case is finalised.
He is a married man, whose wife is in employment. They have three children, all of whom are now grown up. He was born on 5th October 1956. He was 48 at the date of accident and is now 58. According to the table of medium life expectancy for Australia, he has a life expectancy of 27 years. It is still a long time to suffer from his injuries and disabilities. The plaintiff submitted that the severity of his economic loss was 40 per cent of a most extreme case and Park-Tec argued the appropriate finding was no greater than 22 per cent. In my judgment, the severity of Mr Andonovski's case of non-economic loss is 35 per cent of a most extreme case. This entitles him to damages for non-economic loss in the sum of $200,000.

[25]

Past economic loss

The plaintiff migrated to Australia from Macedonia in 1974. Since then he has generally been in factory type work. There have been some interruptions due to injury, and he took time out of the workforce to care for his ailing father before his death. He worked for BBG as a truck driver and forklift driver. This work was essentially semi, or un, -skilled manual labour. Most of his work as a truck driver involved delivering Park-Tec's product to BBG's retail outlets. I am satisfied that the work required was hard physical work. I am also satisfied that he was regarded as a good worker and a man who got on with the job. He did his job, had a good attendance record, and accepted instruction from his supervisors and superiors.
I accept that by reason of his orthopaedic injuries to his left foot, the plaintiff would have been totally unfit for any work for a period of 6 months. Given that the depressive symptoms entered the picture early in the piece, and have had their own impact upon his earning capacity, probably that period of total incapacity extends for 12 months.
From an orthopaedic point of view, since then he has probably been fit for lighter selected duties, not subjecting him to stresses and strains likely to increase the pain in his arthritic, subtalar joint. This would effectively mean at best semi-sedentary work. I accept he is unfit for work on rough or uneven grounds and also for work that might provoke pain in the foot such as exerting effort and strain to lift heavier items he is called upon to deliver or being required to get up and down from a truck repetitively during the day. Operating a heavier clutch on a truck day in, day out would be difficult for him.
The orthopaedic problems are compounded by his psychiatric difficulties. In the joint psychiatric report (Exhibit 3D1), Dr Parmagiani expressed the view that the combined effect of the physical injury and the psychiatric symptoms was that Mr Andonovski could do part time work only up to 20 hours per week. Dr Brown was of the view that the capacity for work depended upon the physical problems and there was no incapacity arising out of the adjustment disorder. Dr Lewin thought that adjustment disorder may give rise to an additional mild impairment of Mr Andonovski's capacity to work.
In oral evidence, Mr Parmagiani gave the following explanation of the interplay between the physical injury and the mental injury (263.15 - .20T): They are inextricable, but the psychiatric effects or symptoms which would prevent him working full‑time would be that lack of energy, that irritability that comes with being in pain. In other words, if he had no physical injury and no pain, then he would have no psychological psychiatric symptoms and then he'd be able to work full‑time. But if we accept that he has a physical injury which leaves him in pain and with reduced physical ability, the psychological effects of that would be that irritability, lack of energy, bad mood, lack of motivation, and would prevent him working happily full‑time week in, week out.
Dr Brown adhered to his previously expressed view. Dr Lewin seemed to me to agree with Dr Parmagiani in his oral evidence. He confirmed that he thought the psychiatric condition "gives rise to separate degree of impairment" of earning capacity (264.40T). He emphasised it was partial impairment and that Mr Andonovski is "capable of some work. But these factors we have identified, such as irritability, would impact upon his capacity to work if they… are, indeed, present" (264.50 - 265.5T). I accept those symptoms are present and I accept this evidence which I regard as being in line with the evidence of Dr Parmagiani. I should add that I did not understand Dr Lewin to be questioning the psychiatric symptoms.
Park-Tec produced evidence of an assessment of Mr Andonovski's vocational capacity (Exhibit 1D20, tab 1) which was carried out by Ms Hartley, a vocational psychologist and Ms Farag, a physiotherapist. They identified three occupations that Mr Andonovski could work in: chocolate packer; product assembler and gatekeeper.
The authors also concluded that due to Mr Andonovski's age and his poor emotional function, he may not be suited to retraining. The authors considered him not capable of returning to his pre-injury job as a truck driver. They assess that he could not fulfil the physical requirements of such a position. Moreover, his reading and writing skills in English were poor and he had limited computer skills.
The authors did not identify the availability of suitable work in a labour market accessible to Mr Andonovski.
I am satisfied that Mr Andonovski has, to some extent failed to mitigate his loss due to his conscious embellishment and exaggeration of his level of symptomatology. Had he not done this he may have had a better chance of getting back to work. He sees himself as completely incapable of performing any work whatsoever, a view which is not supported by the doctors who have given evidence in the case, and whose evidence I accept. On the other hand, leaving aside the conscious elements of his presentation, it is difficult to see an employer offering work to a person like Mr Andonovski presenting with a history of industrial accidents seeking part-time work as a chocolate packer, factory assembler or a gatekeeper. It is difficult to envisage him being offered any job, or keeping it, if the employer became aware of his volatility and volubility, part of which, at least, is founded in his psychiatric injury. I find it unlikely that the work described would be available to Mr Andonovski especially on a part time basis.
One would have more confidence in making a firm finding about his prospects if Mr Andonovski himself had tried to find some form of work, but there is no evidence of that.
Given the imponderables, I think the correct approach is to assess past economic loss on the basis of his probable earnings uninjured and discount the figure to take account of the chance that he could have found suitable work had he made a reasonable effort in that direction. However, viewed objectively the chance cannot be very great.
Park-Tec argued that the imponderables are such that I should award a buffer of cushion, but on the view I have formed of the evidence I think that an inappropriately general approach in the circumstances of this case.
As is common there are no detailed comparable wage records to guide the calculation of economic loss. However, both Mr Andonovski's counsel and Park-Tec's counsel agree that as at the date of injury his average wage was in the order of $731 per week to $756 per week net. I propose to take the average of those figures, a figure of $743.50.
Plaintiff's counsel have submitted that average weekly earnings have increased by 29 per cent since 2004. I understand this to be a reference to the information contained in the Furzer Crestani handbook. The figures published in that same source demonstrate a similar movement over the same period in the consumer price index for Sydney. I propose then to find that currently the wages of people doing work like that performed by Mr Andonovski as at 11th March 2004 have increased by 29 per cent or $215. Comparable earnings are therefore currently $958.50. The average over the period is $851 per week. I propose to allow that figure for the past but reduced by 25 per cent for the chance that had Mr Andonovski tried harder he could have found some part-time work of a semi-sedentary nature. The period is approximately 575 weeks. The total amount before discount is $489,325, which I will reduce by 25 per cent, producing a figure of $366,994.

[30]

Past gratuitous attendant care under s 15 Civil Liability Act

Dr Lee had the benefit of a re-examination of Mr Andonovski on 12th November 2013, just before the commencement of the hearing. I re-iterate that the only significant injury was the heel fracture and post-traumatic subtalar arthritis. This was responsible for the wasting of the left calf. He also had the advantage of viewing the video footage subsequently shown in court. From it he formed the view that Mr Andonovski was able to walk around without undue discomfort to hose his car. From these considerations he formed the view that there was no need for domestic assistance at that time. He considered it unlikely that he would require such assistance in the immediate future. Dr Lee did say that he would have required domestic assistance for about six months following the injury at 8 hours per week.
Other medical evidence supporting a need for gratuitous care proceeds on the basis of a much greater constellation of injuries and complaints than I have accepted. I therefore do not find it persuasive on this subject.
It is quite clear from the plaintiff's evidence that the division of domestic labour in his family prior to the injury was such that his wife performed all the work inside the home and he was responsible for the "outside work". He said, "I didn't do nothing [sic] at home" (37.25T). This is a reference to the inside work.
His evidence is that his wife and his son now do everything he formerly did, mowing the lawn, washing the windows, hosing down the driveway, washing the car and looking after the garden (39.5T).
In her statement (Exhibit F) Mrs Andonovski said that before the accident her husband looked after the lawns and garden and undertook any home maintenance that was necessary. After the accident she took over the mowing. At the time of the accident, her son was 9 years old. She said as time moved on, her son had become more involved in looking after the lawns and jobs outside the house. Mr Andonovski has not returned to doing that work. In oral evidence, she said from the time her son was old enough he took over doing most of the outside tasks formerly performed by his father. Initially she said that the extra tasks took about 3 or 4 hours per week (311.30T). Later she estimated that the extra tasks performed by her and their son took "about 7 hours a week or 8. It depends".
She said if the family could afford it she would pay someone to perform the extra outside work because "it's too much". She has to do all the work in the house and outside. She said "it's too much for one person" (313.35 - .50T).
In cross-examination she described her home. There was lawn in the front and backyards. The back lawn is smaller than the front. There are no big trees with heavy branches. In the past, before the accident, Mr Andonovski maintained a vegetable garden. The yard is fairly level front and back and Mrs Andonovski has no difficulty mowing the lawns. It takes between an hour and an hour and a half to mow the lawn and, of course, this is done more frequently during summer than in winter. Every few weeks she attends to the flower garden. If she averaged out the time spent gardening in addition to lawn mowing, it might take an hour and or an hour and a half.
In oral evidence, the panel of orthopaedic surgeons expressed the view that, as Dr Lee had said in his report, Mr Andonovski ought to be able to be able to "perform most common domestic work expected from a normal gentleman without too much difficulty" (188.5T). Naturally his heel would give him problems if he had to walk on uneven ground or be on his feet for too long. He would have to pace himself. He would have difficulty with uneven ground (188.10 - .40T).
Damages for gratuitous care are governed by s 15 Civil Liability Act. Sub-section 15(2) and (3) impose conditions upon an allowance under this head of damage. The first question is whether there is a reasonable need for the services to be provided. Taking the medical evidence as a whole, I am satisfied that there was a reasonable need for the provision of some services initially and perhaps on an ongoing basis to a limited extent. However, given Mrs Andonovski's description of their home and the opinion of the orthopaedic specialists, I am satisfied that Mr Andonovski could cope with lawn mowing and light gardening at his current home, even if from time to time he experienced a degree of difficulty. Given that I have found he does not require crutches for support, they would not be an impediment to him doing these things around the house. I am satisfied that Mrs Andonovski and sometimes her son, are performing the work she has described. But looking at the acceptable medical evidence, there is really no reason why most of that could not be done by Mr Andonovski. I accept that from time to time, he may have exacerbations of pain which would make the performance of those domestic tasks difficult and that some of the tasks such as cleaning gutters and perhaps washing windows, if he had to climb a step ladder, might be beyond him or at least ill-advised for a man with his disabilities.
I accept that the need for Mrs Andonovski to help in the yard has arisen because of the injury and that she would not have provided those services but for the injury. But other than for the initial period, I am not satisfied that there is a reasonable need for the services to be provided for at least six hours per week. They have in the past been provided for a period of six consecutive months.
I appreciate that Dr Lee estimated a need for a period of six months. It seems to me, given the treatment undergone during the first 12 months that period, looking at the evidence as a whole is a more appropriate period of time. I will allow 8 hours and $23 per hour for 12 months. The total amount is $9,568.

[34]

Bus accident damages

I recap my finding that as a result of the negligence of the bus accident defendants, the plaintiff suffered an injury to his right shoulder and right ankle. The shoulder injury was by way of aggravation or exacerbation of pre-existing degenerative pathology in his rotator cuff. I have found that he had recovered from those injuries by the time he saw Dr Bodel in October 2005. As I have also recorded, his degree of permanent impairment resulting from the motor accident has been assessed at not greater than 10 per cent under the provisions of the 1999 Act and in the circumstances he is not entitled to any damages for non-economic loss in respect of those injuries (s 131 1999 Act).
Initially those injuries may have been incapacitating. Indeed, Dr Mellick thought the right ankle injury continued to be incapacitating as at June 2005. Mr Andonovski was already totally incapacitated for work for the period of 12 months following the work accident and I have allowed damages under that head for the work injury. I accept the submission advanced for the bus accident defendants that the relevant principles are set out in Wynn v New South Wales Ministerial Corporation (1995) 184 CLR 485 at 498 - 9. Given the findings I have made in respect of the economic consequences of the first accident, I think it unnecessary to apportion those damages between it and the second accident. Although the effects of the bus accident were, of themselves to a degree incapacitating for a period of time, they did not add to the incapacity flowing from the work accident. There were no additional relevant restrictions likely to be productive of any additional financial loss in the particular circumstances of this case. Accordingly I make no allowance for past economic loss.
As I have found that Mr Andonovski has recovered from the effects of the bus accident, no question arises about future entitlements for economic loss or out of pocket expenses or the like.
Past out of pocket expenses including the relatively modest amounts paid by the motor accident insurer under s 83 1999 Act have been agreed in the sum of $15,000. To the extent to which some of these out of pocket expenses have been paid by the workers' compensation insurer, s 151Z(1)(b) will apply. The motor accident defendants are at liberty to deduct the sum paid under s 83 1999 Act.