Bartlett v De Martin & Gasparini Pty Ltd

Solicitors: Taylor & Scott Lawyers (Plaintiff) Makinson & d'Apice Lawyers (First Defendant) Turks Legal (Second Defendant and Second Cross Defendant) BN Law (First Cross Defendant) File Number(s): 2021/309495 Publication restriction: No

JUDGMENT

1. The plaintiff was born in 1981. By April 2018 he was an experienced concreter. On 26 April 2018 he was working as a concreter at a building site in Martin Place, when he alleges he was injured in the course of his work. His employer was a labour hire company which had contracted his services to the first defendant, De Martin & Gasparini Pty Ltd. The employer of the plaintiff is no longer registered so that the Workers Compensation Nominal Insurer has become the second defendant.
2. The plaintiff asserts that his injury, substantially to his back, was caused by the negligence of the first defendant. The second defendant is also liable because it (in effect, the labour hire company) had a non-delegable duty of care.
3. The defendants have denied liability. They initially said, but later abandoned, an allegation that the plaintiff was not injured in the manner he described. They maintained a challenge to the nature and extent of his injuries. There are cross-claims between the defendants.
4. It is worth noting at this stage that the plaintiff does not allege that the first defendant had a deficient system of work in place. Rather he alleges that a person employed by the first defendant, or under its control, and being a co-worker of the plaintiff, carried out a casual act of negligence for which the defendants are liable.
5. The relevant legislation is the Civil Liability Act 2002 (NSW) ('CLA') and the Workers Compensation Act 1987 (NSW) ('WCA').
6. The plaintiff has claimed damages under the following heads: non-economic loss, past and future economic loss (including lost superannuation benefits and Fox v Wood (1981) 148 CLR 438; [1981] HCA 42 damages), past and future medical and equipment needs, and past and future domestic assistance.
7. The incident giving rise to the plaintiff's injury occurred on 26 April 2018. On this day, the first defendant was involved in the concreting of a new building in Martin Place. As each floor is added to the building it is necessary to move concrete from the ground (in fact from a truck) to whichever floor the concreting is taking place. This is done by pumping the concrete up a fixed steel tube to the required level and then, via a boom, directing the concrete to the necessary spot. If the boom cannot reach the spot then rubber pipes are added to cover the necessary distance. These pipes are 10 metres in length and weigh between 45 and 50 kg each. They have an internal diameter of 3 inches and are referred to as 'rubbers'.
8. It is accepted that concreting had not yet started when the plaintiff hurt his back while moving a pipe. This meant that the pipe was empty. Logically when the pipe has concrete in it, whether fully or even to a small degree, its weight will increase.
9. Three lay witnesses were called to give evidence; the plaintiff and two persons employed by the first defendant. The weight of numbers did not reflect the quality of the evidence. On any controversial matter I unequivocally accept the plaintiff's evidence. This is not only a reflection of the plaintiff being an impressive witness, but more because the defendant's witnesses were unimpressive and probably have no, or at most a very small, recollection of the relevant events. The deficiency in the defendants' witnesses' evidence is highlighted by the precise similarities between the statements of Mr Sandro Florian and Mr Marco Florian. Almost 7 of the paragraphs in their respective statements are identical. According to Mr Sandro Florian this was a coincidence. The suggestion is ludicrous.
10. Rather than coincidence, I suspect that it is far more likely that the statements were drafted by a third person (hopefully not a solicitor) who simply copied paragraphs where that seemed convenient. Both statements were made almost six years after the events. Mr Sandro Florian did not suggest that he had refreshed his memory before making his statement from any earlier statement or any contemporaneous note. He suggested that he had a specific memory of the incident even though, on his version, the plaintiff was not hurt during the lift, a lift of a type which he would have taken part in on thousands of occasions.
11. By the completion of the evidence the first defendant recognised the futility of the case based on the evidence of its lay witnesses. It conceded the plaintiff's version could not be challenged and in fact abandoned the calling of Mr Marco Florian, including the tendering of his statement.
12. Mr Sandro Florian accepted that a pipe with concrete in it, might need four or more people to lift it, whereas a clean and empty pipe could be lifted by two persons.
13. The plaintiff, in his evidentiary statement, described the incident as follows: "24. At about mid-morning on the date of the accident, a concrete pour was in the process of occurring and I had been instructed by a representative of De Martin & Gasparini to set up a concrete hose line to pump the concrete. 25. The concrete boom had already been set up and another worker and myself were directed to move the concrete hose from one area of the building site to another, closer to the concrete boom. I cannot recall the name of the other worker. To the best of my recollection, there was no discussion as to how the job was to be performed. I do not recall seeing any form of safety documents such as safe work method statements or risk assessments. 26. I believe the concrete hose was in or around ten metres in length and weighed in or around 60kg's. 27. The other worker picked up the concrete hose and began walking at a fast pace before I was ready. I was jerked forward and made to walk before I had a proper hold of the hose and before I had stood up properly. 28, I immediately felt pain in my lower back. I was in tears and felt nauseous. I was also experiencing difficulties breathing. 29. I was taken to the first aid area on site for treatment."
14. The "other worker" referred to by the plaintiff was not identified, either as a labour hire worker or a direct employee of the first defendant. I do not think the distinction matters, bearing in mind the plaintiff's evidence, which I accept, that: "…. another worker and myself were directed to move the concrete hose from one area of the building site to another, closer to the concrete boom."
15. The direction also makes clear the responsibility of the first defendant for the events that occurred. As stated in Kondis v State Transport Authority (1984) 154 CLR 672 at 692; [1984] HCA 61: "A defendant is not vicariously liable for a tortious act done by a workman who is not his servant if the defendant has no authority to control the doing of the act and does not directly authorize it. It makes no difference that the tortious act is done in performing work for the defendant's benefit. Prima facie, the workman's employer is vicariously liable for the tortious act, but if he is able to transfer and transfers authority to control the doing of the act to the defendant, the defendant is liable."
16. There is no dispute in this matter that the second defendant had transferred the authority to control the working of the plaintiff to the first defendant. The first defendant pointed out that the failure to identify the other worker meant that his status could not be ascertained and therefore any duty that might have arisen from his actions could not be identified. Notwithstanding the submission, the first defendant also submitted that this other worker was an experienced concreter. I did not fully understand the reasoning behind this assumption, but I do not think it is of particular significance. The fact is that the other worker was part of the team under the guidance of the first defendant which was giving directions to both him and the plaintiff as to the carrying out of the concreting work, including the moving of the pipe. I have already quoted above from the plaintiff's statement where he says that he and the other worker were directed to move the concrete hose.
17. I am satisfied that the other worker was working under the supervision and direction of the first defendant and, like the plaintiff, as if he was an employee of the first defendant.
18. The cross-examination of the plaintiff, in respect of the method of his injury, was limited to two topics. Firstly, it was put to him that four people were involved in the lifting of the pipe and secondly, that he had given a history to his employer that he had hurt his back in a twisting incident. The plaintiff rejected both suggestions. No evidence was tendered to substantiate the suggestion about a history of a twisting incident. I reject the suggestion, although also note that the incident as described by the plaintiff could have involved a twisting of his back.
19. As to the four people being involved in the lifting, as I have said, reliance on this version was abandoned by the first defendant.
20. In respect of his injury, and quantum, the cross-examination was limited to some questions about domestic activity and the plaintiff's capacity to drive a car and attend shops or a pub. In addition, he agreed that he had considered joining a gym in order to get fit.
21. My identification of the cross-examination of the plaintiff as limited is not an indication of the quality of the cross-examination. Rather it is a recognition that a very experienced senior counsel properly concentrated on the very few controversies arising from the plaintiff's evidence.
22. Although the plaintiff was not in the witness box for very long, he was in obvious discomfort and his movements to and from the witness box were clearly restricted. No suggestion was put to him that he was exaggerating his condition.
23. Mr Daniel Rosetto, a supervisor, was not present on 26 April 2018. According to Mr Sandro Florian, Mr Rosetto had told him about the plaintiff being injured. But according to Mr Rosetto, he had been told about the injury by Mr Sandro Florian. This was another example of the unreliability of the second defendant's lay evidence.
24. Mr Rosetto said that if a person was injured on site, the first defendant's system dictated that the person should attend the Lend Lease first aid office to report the injury. This is precisely the action taken by the plaintiff. He cannot be criticised for doing so.
25. The report to the first aid office (Exhibit T) states, inter alia, and totally consistent with the plaintiff's evidence: 1. The "event" occurred on 26 April 2018 at 11am. 2. The "Contractor/Service Provider" was the first defendant. 3. The description of the event was: "IP lifted concrete rubber with a work mate, causing a strain on his lower back."
26. I particularly note that the report refers to a work mate and not work mates and that the injury is identified to the lower back.

Liability

1. Although not being dealt with in logical order, I note here that the first defendant and the second defendant agreed that, in respect of the cross-claims, that if I found in favour of the plaintiff, liability should be apportioned as to 90% against the first defendant and 10% against the second defendant.
2. The first defendant, properly, concentrated its submissions on whether the relevant provisions of the CLA had been met so as to establish a breach of duty of care. It was not submitted that the first defendant did not owe a duty of care to the plaintiff.
3. Section 5B of the CLA states: General principles (1) A person is not negligent in failing to take precautions against a risk of harm unless - (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and (b) the risk was not insignificant, and (c) in the circumstances, a reasonable person in the person's position would have taken those precautions. (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things) - (a) the probability that the harm would occur if care were not taken, (b) the likely seriousness of the harm, (c) the burden of taking precautions to avoid the risk of harm, (d) the social utility of the activity that creates the risk of harm.
4. The plaintiff put his case on liability in this way: 1. The first defendant's duty was the same as an employer's duty to an employee. 2. The plaintiff was following the directions and the system of the first defendant. 3. This system included, as stated by Mr Rosetto the necessity for the lifting of the pipe to be coordinated, failure to do so raising the possibility of injury (T 43). The plaintiff submitted: "It is alleged that (the first defendant) for their own employed concreters, and for the contracted concreters on the day, had a system of manual handling which required coordinated lifting." 4. The unexpected carrying off of the pipe by the other worker was an action taken by that worker absent coordination by the worker or by the first defendant. It was a departure from the system which caused injury to the plaintiff. 5. "The risk of harm in this case was the risk of serious back injury by failure to ensure that a coordinated manual handling lifting task was carried out safely." 6. As to the foreseeability of the risk of injury the plaintiff pointed to the manual handling documents and toolbox talks prior to the accident which recognised "the need to take care in the manual handling tasks." In addition, the documents referred to the avoidance of "complacency" and "helping your workmates". 7. The plaintiff's expert, Mr Ali, expressed the risk of harm in this way: "On my instructions, Bartlett's injuries on 18 April 2018 were caused by a hazardous manual task with a high risk of musculoskeletal disorder (MSD). The activity was a hazardous manual task, as it involved two hazardous manual task characteristics: high force and sudden force. Moreover, the MSD appears to have occurred due to sudden damage caused by strenuous activity and unexpected movement." 1. The plaintiff submitted that a reasonable person in the position of the first defendant would have taken precautions to avoid the risk of harm. The probability and seriousness of likely harm, submitted the plaintiff, "have to be weighed in the balance of the burden of taking those precautions to avoid the risk of harm." 2. Section 5B(2)(d), relating to social utility, was not relevant.
5. The first defendant, again in summary form, put its case on liability in this way: 1. The duty envisaged by the CLA was to "take reasonable care in respect to foreseeable and not insignificant risks of harm". It was not a duty to eliminate the risk of injury. 2. The incident was no more than "an innocuous incident on a building site where two experienced contractors were perhaps momentarily out of synchronicity in moving a comparatively ordinary object." 3. The plaintiff's failure to identify the risk of harm made it impossible to determine whether or not the risk was significant (as required by s 5B(1)(c)). 4. In turn the precautions referred to in s 5B could not be identified. 5. The plaintiff had never defined "what the first defendant should have done to prevent what is said to be the negligent action of an unidentified worker in the context of this case, on this site and with the significant experience of the plaintiff." It followed that there was "no way to understand how it [the risk] was to be minimised or eliminated." This point went beyond one of pleading and was one of substance. 6. Even if the risk had been identified, was foreseeable and preventable, that circumstance did not necessarily bespeak negligence. "It is for the plaintiff to demonstrate that each defendant did not act reasonably in failing to take the course of conduct that he suggests is reasonable." 7. In examining the facts the first defendant submitted that other than the reference to being "jerked forward and made to walk before I had a proper hold of the hose and before I had stood up properly" there was no other elaboration of what had occurred. This absence of detail did not permit a finding of unreasonable conduct, because it would be based simply on "the benchmark of what the plaintiff expects another worker might do." The task of moving pipes was common and done many times during the working day. The first defendant continued: "… the reasonableness of what another worker did, and whether it breached an obligation of care, is to be determined by reference to the objective standard of what is reasonable to the reasonable person in the circumstances. At present, all of those matters are purely speculative." 8. Mr Rosetto's evidence about coordination was not relevant because the plaintiff did not say that the other worker had moved off "unexpectedly" and there was no evidence that other workers were "not aware of the first defendant's extensive systems for manual handling." 9. The plaintiff's simple, and only, description of what had occurred to him did not permit any finding of negligence to be made. For example, there was no evidence of how violent the movement was, there was no evidence of what a "proper" hold of the pipe was and what contribution that hold may have had. Further there was no evidence as to the effect "of the plaintiff not standing up properly" or of how the other worker "reasonably would be expected to be looking where he was going," and at the same time appreciating the plaintiff had not "stood up properly". 10. In essence, there was a distinct lack of evidence by which an assessment of whether the first defendant and the other worker had acted reasonably could be made. 11. If the other worker had moved off unexpectedly the plaintiff could have simply dropped the hose. Further, the simple task of moving the pipe, did not give rise to the necessity for any "special communication". 12. In reality this was a workers compensation injury; it was not a negligence-based injury giving rise to damages. 13. Overall: "As set out above, the plaintiff should not succeed against the first defendant. It was not his employer. It had appropriate systems in place. It was instructing workers to undertake works safely at all times and is not vicariously liable for the alleged negligence of an employee of an independent contractor. The plaintiff failed to prove otherwise." 14. If liability was established there should be a finding of significant contributory negligence because the plaintiff, being at the back of the lift, and "with the better vision of what the person in front of him was doing, should verbally confirm that he was ready to move, or to call and prevent the movement otherwise, or if necessary, drop the hose."

Principles

1. All of the parties referred me to the authorities that they respectively considered relevant. There was obviously some overlapping, but I think the important principles are to be found in the following cases.
2. In Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 at 550; [1994] HCA 13, the High Court said: "It has long been recognised that there are certain categories of case in which a duty to take reasonable care to avoid a foreseeable risk of injury to another will not be discharged merely by the employment of a qualified and ostensibly competent independent contractor. In those categories of case, the nature of the relationship of proximity gives rise to a duty of care of a special and "more stringent" kind, namely a "duty to ensure that reasonable care is taken". Put differently, the requirement of reasonable care in those categories of case extends to seeing that care is taken. One of the classic statements of the scope of such a duty of care remains that of Lord Blackburn in Hughes v Percival: "that duty went as far as to require [the defendant] to see that reasonable skill and care were exercised in those operations … if such a duty was cast upon the defendant he could not get rid of responsibility by delegating the performance of it to a third person. He was at liberty to employ such a third person to fulfil the duty which the law cast on himself … but the defendant still remained subject to that duty, and liable for the consequences if it was not fulfilled." In Kondis v State Transport Authority, in a judgment with which Deane J and Dawson J agreed, Mason J identified some of the principal categories of case in which the duty to take reasonable care under the ordinary law of negligence is non-delegable in that sense: adjoining owners of land in relation to work threatening support or common walls; master and servant in relation to a safe system of work; hospital and patient; school authority and pupil; and (arguably), occupier and invitee. In most, though conceivably not all, of such categories of case, the common "element in the relationship between the parties which generates [the] special responsibility or duty to see that care is taken" is that "the person on whom [the duty] is imposed has undertaken the care, supervision or control of the person or property of another or is so placed in relation to that person or his property as to assume a particular responsibility for his or its safety, in circumstances where the person affected might reasonably expect that due care will be exercised". It will be convenient to refer to that common element as "the central element of control". Viewed from the perspective of the person to whom the duty is owed, the relationship of proximity giving rise to the non-delegable duty of care in such cases is marked by special dependence or vulnerability on the part of that person." (Footnotes omitted)
3. In TNT Australia Pty Ltd v Christie [2003] NSWCA 47; 65 NSWLR 1, at 41, the NSW Court of Appeal said: "Before I turn to them I would indicate that there is no merit in TNT's attempt to differentiate its position from that of an employer. For one thing the point was raised far too late in the appeal. But more importantly, Judge Delaney was correct to have concluded that TNT was in a position analogous to that of an employer as regards (non-delegable) duty of care to the plaintiff. TNT exercised day-to-day control over the plaintiff's work activities, treating him to all intents the same as its employees as regards work on the factory floor (CB 24-6, 41, 61-2, 65). The relevant findings are set out above. It can be seen that the plaintiff and TNT placed themselves in a relationship, day in and day out, indistinguishable from that of employee and employer. I am not saying that every client of an employment bureau will assume such a relationship with the person at whose workplace he or she attends. But here the plaintiff had for months been under the daily control of TNT and its managerial staff at the brewery. He was a relatively unskilled labourer. He reported daily to the brewery and everything that he did there was done under the full control of TNT. TNT's relationship was more than that of an occupier of the factory. In all respects relevant to the imposition of a duty of care the plaintiff was in an identical position to that of the four TNT employees with whom he worked."
4. In Kondis, at page 682, this was said: "By way of illustration he says that a duty "personal to the employer" must be performed "by himself or by his servants". However, the concept of the personal duty which he expounded makes it impossible to draw a convincing distinction between delegation of performance of the employer's duty to an employee and delegation to an independent contractor. On the hypothesis that the duty is personal or incapable of delegation, the employer is liable for its negligent performance, whether the performance be that of an employee or that of an independent contractor." (Mason J was referring to the judgment of Lord Wright in Wilsons & Clyde Coal Co. v. English 1938 A.C. 57).
5. In McLean v Tedman (1984) 155 CLR 306, at 313; [1984] HCA 60, the High Court said: "The employer's obligation is not merely to provide a safe system of work; it is an obligation to establish, maintain and enforce such a system. Accident prevention is unquestionably one of the modern responsibilities of an employer: see Fleming, Law of Torts, 6th ed. (1983), pp. 480-481. And in deciding whether an employer has discharged his common law obligation to his employees the Court must take account of the power of the employer to prescribe, warn, command and enforce obedience to his commands."

Findings on liability

1. The plaintiff may have been an experienced concreter, but I can see no basis to distinguish between him and a possibly less skilled worker, working in circumstances where the first defendant exercised control over him. I can see no reason to not treat the plaintiff, and also the unidentified worker, as if they were employees of the first defendant.
2. I agree with the first defendant that there is imprecision in the manner in which the case has been pleaded. However, I do not think the imprecision is to such a degree that it does not enable the first defendant to understand the plaintiff's case or to place the alleged case within the scope of s 5B of the CLA.
3. The first defendant submitted that there had not been any identification of the "true source of potential injury" or the "causal mechanism of the injury sustained" (deriving the quoted words from Roads and Traffic Authority of New South Wales v Dederer (2007) 234 CLR 330; [2007] HCA 42 and Perisher Blue Pty Ltd v Nair-Smith (2015) 90 NSWLR 1; [2015] NSWCA 90, at [98] respectively). In Perisher Blue, the Court also said at [98]: "In essence, the enquiry is concerned with determining what person, thing or set of circumstances gave rise to the potential for the harm for which the plaintiff seeks damages."
4. The "set of circumstances" in the present case is evident from the risk of harm occurring on a building site where workers are working above ground, on a wire mesh and being required to carry materials from place to place. I do not see any lack of clarity or need for elucidation.
5. It is correct to say that carrying a 50 kg weight between two men was an exercise well within their capacity. There is nothing particularly significant about the dimensions of the pipe to make it an especially difficult object to carry. But at the same time, around 50 kg is too much for one person. It requires at least two people. Once two people are involved there is a need for coordination between them. When they are directed to move the pipe, it is implicit that they are being directed to do so in a coordinated fashion. This did not occur. The unidentified worker ignored the demands of coordination and did so under the express authority of the first defendant. I do not mean that he had been instructed to ignore coordination, but rather that he was acting pursuant to the direction of the first defendant to move the pipe.
6. The unidentified worker's failure to co-ordinate the 'lift and carry' is in my view the casual act of negligence. The first defendant, either as the actual employer or the deemed employer of the unidentified worker, is vicariously liable for his actions.
7. The first defendant argued against such a finding. It submitted: "The finding that the first defendant is vicariously liable for a casual act of negligence by an employee of Civic should not be made on the evidence in this case. There is no evidence concerning the facts of the relationship between the first defendant and Civic which would justify a finding that as between the first defendant and Civic there was a sufficient degree of control over Civic's employees. That requirement for a finding of vicarious liability against a 'host' employer appears to merely have been assumed by the plaintiff, but not proved by any evidence. It is not an automatic transfer of liability in every labour hire case."
8. The possibility of the unidentified worker being an employee of a labour hire company called Civic arises from the day sheet for 26 April 2018 (Ex 1D1) and from the cross-examination of the plaintiff where he agreed that Civic supplied workers to the first defendant (T 13.19). It is correct that there is no evidence about the relationship with workers from Civic but I return again to the plaintiff's evidence that he and the other worker were directed to perform the moving of the pipe. The inference which arises from this evidence was never challenged in cross-examination and no evidence was put before the court to rebut the inference.
9. I also note, by way of example, that a Mr Orbell, a Civic worker listed in Exhibit 1D1, is also a person who signs on as a worker in the first defendant's daily documentation, as seen in Exhibit 1D4. The Civic workers appear to be no different than the plaintiff who has also been provided by a labour hire company.
10. I am satisfied that, like the plaintiff, the unidentified worker was a person acting as if he was an employee of the first defendant.
11. The first defendant said that the incident was a workers compensation claim but not a negligence claim. It certainly is a workers compensation claim but factoring in the actions of the unidentified worker, himself working under the direction of the first defendant and in obedience to a specific direction from the first defendant, then I think the step to negligence has been made.
12. Turning now to causation, the onus is always on the plaintiff (ss 5D & E of the CLA). The approach to be taken has been described as the application of the 'but for' test. Once it is accepted that the plaintiff hurt his back as a result of the other worker failing to coordinate the movement of the pipe, then causation naturally flows. There was never any suggestion that the plaintiff's back injury arose from any other source than the carrying of the pipe.
13. Accordingly, I am satisfied that the plaintiff is entitled to a verdict against the first defendant.
14. In relation to the second defendant there may well have been an argument that it bore no liability. However, as I have already noted, the defendants agreed that should I find a verdict against the first defendant then there would be a 90/10 (in favour of the second defendant) split of responsibility as between the defendants. This agreement will be reflected in the orders I make on the cross claims.

Contributory negligence

1. I can see no basis upon which to find contributory negligence on the part of the plaintiff. The incident would have occurred very quickly. The plaintiff was not to know that the other worker would set off rapidly and without checking on the plaintiff's readiness. There was no opportunity for the plaintiff to intervene in order to prevent the actions of the other worker.
2. Further there is no evidence to suggest that the plaintiff had any more senior position than that of the other worker. He was not controlling him, directing him, or giving him instructions of any sort. The directions had come from the first defendant. The plaintiff had no involvement in the decision, or the carrying out of the decision, to move the pipe.

Medical evidence

1. It is worth commencing this topic by reciting some of the plaintiff's unchallenged medical history. 1. Prior to 26 April 2018 there is no record of any complaint made by the plaintiff of back pain or limited restriction in his back. 2. Soon after the incident on 26 April 2018 the plaintiff attended the first aid station at the workplace and later in the day saw his general practitioner, Dr Rice. 3. Over the next two years the plaintiff underwent a number of CT and MRI scans of his lumbar spine. The scans revealed pre-existing degenerative change. 4. On 10 August 2018, the plaintiff had a perineural injection at the L5 level of his spine. 5. On 30 March 2020, the plaintiff had a microdiscectomy at the L4/5 level carried out by Dr Ferch. 6. On 9 November 2020, the plaintiff had a left L4/5 revision microdiscectomy. 7. On 15 February 2021 Dr Ferch carried out a revision L4/5 decompression and posterior lumbar interbody fusion. 8. In August or September 2023, the plaintiff had a radiofrequency neurotomies (RFN). This is an injection into the lower back to combat pain.
2. There is very little in dispute in the medical evidence, as reflected in the joint reports of the surgeons and the psychiatrists respectively. The joint report of the occupational therapists does reveal they have different opinions although the report begins by observing that the two therapists had been provided with different medical records upon which to base their opinions.
3. Starting with the surgeons, Dr Giblin and Associate Prof Hope, their joint report begins by giving support, if only indirectly, to the plaintiff's version of the incident. The answer to Question 1 states: "Both experts agree that the plaintiff sustained an unexpected and unguarded soft tissue injury to his lower lumbar spine discs. The reason is that the history of the injury is mechanical, it's plausible, and the results are to be expected in terms of symptom complaints." (Emphasis added).
4. The experts agree that the plaintiff has a "compromised lumbar spine structure" which has placed "physical restrictions directly related to the use of his back" upon him.
5. There is some disagreement about the nature and reasonableness of the operative treatment the plaintiff has endured. Nevertheless, the fact is that he has had the operations and has done so in accordance with medical advice.
6. In written opening submissions the first defendant submitted that the plaintiff's condition was largely as a result of pre-existing arthritic change which would, in any event, have led to both surgery and restriction. This however, is not the opinion of its expert, Dr Hope. The joint report states: "Dr Hope indicated that, whilst there may have been pre-existing pathology, it was not symptomatic, assessed, investigated or diagnosed. Therefore, it is largely irrelevant." (Answer to Question 4)
7. There is no evidence of any earlier back problems suffered by the plaintiff. There is no evidence of time off work or of any physical restriction. The experts agreed that the pre-existing condition would have provided the plaintiff with "a reasonable prognosis but symptoms will continue to evolve over time." The injury however "has changed the picture and it is now a guarded prognosis."
8. Equally important is this answer given by the experts to the question about the likelihood that degenerative changes would have resulted in a similar state of disability: "Both experts agree that there is no evidence of that occurring, because it had not happened prior to the date of injury. The state of disability commences at the date of injury, and the current disability is directly linked to the subsequent treatment of that injury. Therefore, the plaintiff's current level of disability would not have eventuated except for the index injury. He would still eventually have some disability, but not as great as it is now." (Answer to question 1h).
9. Again, in respect of the pre-existing condition: "Both experts agree that the plaintiff would have been able to continue working in his pre-injury role for 12 years, until the pre-existing pathology affected his function." (Answer to question 10b).
10. The wording of the answer to question 10b is important as much for what it does not say. It does not say that after 12 years the plaintiff would have been unable to work because of the pre-existing pathology. It says no more than that the pre-existing pathology would have "affected his function". It would make no sense to conclude that after working as a concreter for 12 years, the plaintiff would on the day after the twelfth year, be completely unable to work. It follows that it would be quite wrong to limit the plaintiff's economic loss to 12 years. This is not to say that the pre-existing pathology should be ignored. Rather it needs to be taken into account as a reducing factor to be applied to the level of economic loss after 12 years.
11. In relation to working capacity, both experts agreed that the plaintiff could not return to his pre-injury duties, although Dr Hope did express a possibility of some work in a part-time capacity. He thought 20 hours per week might be appropriate provided certain conditions were attached to the work.
12. Turning now to the occupational therapists, they do agree that the plaintiff required gratuitous care and assistance. They did not agree on the extent of the care. Ms Hogan (retained by the plaintiff) and Ms Dinley (retained by the first defendant) gave evidence concurrently. It was suggested to Ms Hogan that her prescription for domestic assistance was flawed because it assumed that the plaintiff required assistance because he was in pain when performing certain tasks. The fact of being in pain was not a definitive factor. The real question was his capacity to do the work. Thus, for example it was put to Ms Hogan that the plaintiff had said he made his bed and therefore similar tasks should be excluded from his domestic assistance. Firstly, I note the plaintiff did not say that he made his bed. He said only that "I pull the blanket across" (T 25.30). However, this is a minor point. Obviously, many people will perform tasks while they are in pain. The question is whether the pain is to such an extent that it affects the person's capacity to do the task.
13. Another issue on which Ms Hogan was challenged was her averaging of commercial care rates, the point being made was that casual requirements for cooking assistance would be unlikely to be met on weekends. Therefore, her inclusion of weekend rates in the rates she applied was inappropriate. However, that does not mean that assistance cannot be booked for a weekend, especially bearing in mind that the plaintiff's wife, a nurse, is a shift worker. Assistance could be booked in advance when Mrs Bartlett's schedule was known. I think the averaging is appropriate and note that Ms Hogan omitted the more expensive public holiday rates from her calculations.
14. Ms Dinley was specifically challenged on her assessment of personal assistance following surgery. She said that such assistance would be needed for tasks such as helping the plaintiff have a shower and get dressed. She limited the assistance to 15 minutes per day. Ms Hogan thought 30 to 60 minutes per day was more appropriate. I agree with Ms Hogan especially when the assistance extends to more than just putting a person in or out of the shower, but rather needing to remain available and effectively be on call during periods when assistance might be needed.
15. Ms Dinley was reluctant to give up her views on the effect of the plaintiff's pre-existing pathology. She seemed to prefer the original views of the defendants' medical experts, notwithstanding that Dr Hope, in the conclave report, clearly minimised the effect of the pathology. Ms Dinley also seems to have entirely discounted the views of Dr Giblin for no apparent reason.
16. The final conclave report is from the psychiatrists, Dr Teoh, and Dr Apler. Both psychiatrists agree that the plaintiff "developed an adjustment disorder with depression as a result of the incident on 26 April 2018." They both agree that the psychiatric injury was "secondary to the chronic and severe pain that Mr Bartlett developed as a result of the incident".
17. The psychiatrists agree that the plaintiff's future condition will be dominated by his physical injuries and related chronic pain "rather than as a result of his psychiatric disorder." They both agree that there was no pre-existing psychiatric condition.
18. The two psychiatrists observed that the plaintiff had not received psychological or psychiatric treatment to date but that he should have "six months of fortnightly psychological counselling focused on pain, depression and disability." In addition, he needs antidepressant medication for two years. Psychological consultations cost about $300 per session and antidepressant medication is about $40 per month.
19. The psychiatrists agreed that the plaintiff's capacity for work was dictated by his physical condition and chronic pain.

Quantum: non-economic loss

1. The starting point is the effect the injury has had on the plaintiff. In his largely unchallenged evidentiary statement the plaintiff says that he consulted Dr Rice, his general practitioner, who prescribed him painkillers including Panadeine Forte, Endone and Targin. I think I can take judicial notice that these three drugs are used to address significant pain. They are more powerful than Panadol. In July 2018, the plaintiff's back pain "intensified" and he was "also experiencing pain radiating down into my left buttock and into my left leg."
2. At the same time, he had difficulty sleeping and he was often in a bad mood. His psychological condition became worse and he withdrew socially. He had problems concentrating and was anxious.
3. The plaintiff tried physiotherapy, exercise physiology and a TENS machine but when none of these modalities of treatment relieved the pain he went on to different medications including Tramal, Palexia, Lyrica and Endep. Ms Dinley agreed that Lyrica is a drug capable of causing confusion.
4. After surgery in March 2020, the plaintiff says that he started to have pain in his left buttock, left thigh and left calf. His doctor told him that these were signs of "left lateral recess stenosis" and recommended steroid injections.
5. As set out above, the plaintiff had further surgical interventions, in November 2020 and February 2021, respectively. He says that: "Post surgery, I continued to experience stiffness and soreness in my back and my ability to sit for longer periods of time was reduced."
6. Post-surgery the plaintiff began an exercise program, physiotherapy, and hydrotherapy. He still takes Lyrica, Mobic and also Pantroprazole. The latter is a drug used to combat abdominal reflux, presumably resulting from the use of the painkilling medication.
7. The plaintiff has given up most of his hobbies which had included "kayaking, fishing, riding a mountain bike, swimming, going to the beach, going to the gym, attending car shows, going to the speedway, camping, visiting theme parks with my family and going out for dinner." He now spends most of his time "inside, watching television and lying in bed."
8. As at the date of his statement (19 July 2022), and I infer to the present time, the plaintiff still has chronic pain, restriction in the movement of his back and exacerbations when he uses his back. He has shooting pains in his left buttock, left leg and into his left knee. He is restricted in moving the toes on his left foot. He has difficulty sleeping and he cannot run. He is restricted in what he can lift, push, and pull. He cannot sit, stand, or walk for prolonged periods. He has a limp. He has gained weight. He is anxious and depressed.
9. Before he was hurt the plaintiff managed most of the garden work. He changed lightbulbs, cleaned the gutters and the outside windows. He had no difficulty driving.
10. He now has difficulties bathing, dressing, toileting, and grooming himself. He cannot bend to wash his feet and he has bought bed leg extensions to help him get in and out of bed.
11. Until October 2021 the plaintiff's wife did all the cooking and cleaning. Since then the plaintiff has helped his wife with some of the cooking, in particular cooking meat on the barbecue. This is only when he is having a 'good' day.
12. The plaintiff tries to help his wife with cleaning but again this is irregular and restricted. He does not do any gardening tasks. His sons vacuum and wash the cars.
13. The plaintiff does some shopping, and he can drive for up to half an hour before needing a rest.
14. The plaintiff will need further surgery at a cost of about $75,000.
15. Clearly the plaintiff's life and lifestyle have radically changed since he was injured. Besides needing to undergo surgery and other invasive treatment, like injections, the plaintiff lives with permanent pain and restriction of movement. No doubt his pre-existing pathology would have eventually caught up with him and gradually imposed some pain and restriction upon him. But that is a very different scenario to the sudden commencement of pain and restriction. I am also not satisfied that the pre-existing pathology would ever have caused the same degree of pain and restriction as he now experiences.
16. The plaintiff's schedule of damages says that a non-economic loss finding of 40% of a most extreme case is appropriate. The first defendant suggests 28%. I think these two percentages reflect the appropriate range although I think the plaintiff's assessment is more accurate. I will make a non-economic loss finding of 35% of a most extreme case, which equates to $252,500.00.

Past economic loss

1. This head of damages was essentially agreed. The parties agreed that the plaintiff had lost, by not working since his injury, the sum of $563,876. The difference between the parties was that the first defendant submitted that this figure should be discounted by 25% to take into account what would have been the imposition of the plaintiff's pre-existing pathology and also a degree of retained earning capacity. This discounting reduced the sum to $422,907.
2. A similar approach was taken to lost superannuation benefits. The first defendant reduced the agreed sum of $62,026 to $46,519.77 by applying the same 25% discount.
3. Fox v Wood damages were agreed at $85,617.00.
4. The question that therefore arises is whether there should be any discount to the wages lost by the plaintiff since the incident.
5. I do not think there should be any reduction for a retained earning capacity. The plaintiff probably does have some earning capacity, but it is beset by restrictions and unlikely to be capable of being utilised. In the surgeons' joint report, Dr Hope said there was an earning capacity provided certain conditions were met. I find it difficult to imagine an employment in which such conditions would be attractive to an employer.
6. Dr Porteous is an occupational physician. In his report of 20 June 2024 (Exhibit E) he stated: "I again note that he can try to compete in the open labour market in the real world for jobs that would be open to him, with full disclosure he would more likely than not be unsuccessful when competing with 'able-bodied' persons for jobs if he had not had the subject accident and did not have the injuries and the associated ongoing pain required restrictions, markedly reduced capacity and disability."
7. Dr Porteous, in the above quote, was referring back to his report of 22 March 2022, where he had perhaps made the same point more vigourously: "I would note that if he tried to compete in the open labour market with full disclosure, he would clearly be unsuccessful when competing with 'able-bodied' persons, compared to if he had not had the subject accident."
8. The next question is whether there should be any discount because of the pre-existing pathology. The first defendant primarily based its submissions on the views of the surgeons in the joint report in answering Question 10b. I have set this answer out above, but think it appropriate to repeat it: "Both experts agree that the plaintiff would have been able to continue working in his pre-injury role for 12 years, until the pre-existing pathology affected his function."
9. It is clear that the 12 years commences at the date of the injury. This means that in about seven years time the pre-existing pathology would have commenced to have an affect on the plaintiff's earning capacity. However, I do not see how it can have any impact on past economic loss. The period since the accident is just over six years, well within the 12 years before which the pre-existing pathology would have come into play. I therefore do not think that there should be any discount made to past economic loss. I will allow the full amount of $563,876 plus lost superannuation benefits of $62,026.

Future economic loss

1. The first step required of the plaintiff is satisfy the demands of s 13 of the CLA. The defendants conceded that he did so. Nevertheless, I should state that I am satisfied that the assumptions made about future earning capacity accord with the plaintiff's most likely future circumstances if he had not been injured. In more detail, and as will be seen below, I am satisfied that the plaintiff would have continued to work as a concreter for about another six years. Then he would have either diminished his work as a concreter and supplemented it with other work, or changed his type of employment totally, perhaps gradually, so that his injuries would have continued to impact upon his capacity for the remainder of his working life albeit to a lesser degree after another six years.
2. I am further satisfied that after the next six years the plaintiff's lost earning capacity would be in the order of 60% of his total capacity.
3. The plaintiff's current comparable earnings were agreed at $1,900 net per week.
4. Again, the only controversy here relates to the effects of the plaintiff's pre-existing pathology. As noted above, the orthopaedic surgeons in their joint report, say that there would have been no affect for 12 years.
5. The plaintiff is now 43 years of age. He has a future working life of 24 years. Concreting is heavy work, and I am satisfied that his pre-existing pathology would have stepped in to affect his capacity to work at some time in the future. But that does not mean that he would have stopped working altogether. The plaintiff has an excellent work history which commenced when he was 15 years of age. I have no doubt that but for the injury he would have continued to work, probably in a less physical job and probably for less pay.
6. I think the correct approach is to award him six years of full economic loss and then 18 years of economic loss at 60% of the wage I have used for the first 12 years. The total will be reduced by 15% for vicissitudes.
7. The calculation is (1900 x 271.4) + (1140 x 625 x .746) less 15% = $890,107. I have used the 5% tables and deferred the second tranche of economic loss for six years.
8. Lost future superannuation benefits at 14.59% are $129,867.

Past domestic assistance

1. Gratuitous assistance is governed by s 15 of the CLA. This section imposes a six hours per week for at least six consecutive months gateway. The first defendant conceded that the gateway had been passed.
2. Notwithstanding this concession I think there is a significant flaw in the plaintiff's evidence concerning past domestic assistance. In order to establish the claim a plaintiff must show not only that the receipt of domestic assistance was reasonable having regard to the plaintiff's condition, but also that the number of hours claimed were actually performed. Normally the plaintiff will give an estimate of the hours that have been performed and/or there will be evidence from the person who provided the assistance.
3. Allsop P, in Coles Supermarkets Australia Pty Limited v Haleluka [2012] NSWCA 343, at [55]: "It was submitted that one only gets payment for satisfying the reasonable need created by the injury. Thus, it was submitted that some objective assessment of reasonable time is implicit in the satisfaction of the reasonable need. But the section does not identify some standard of efficiency in delivery of the services. The services by the person who is providing them gratuitously must be in response to a reasonable need. Those services must be provided for a specified time. The section does not require only those services of a length of time reasonably or professionally provided by some posited objectively skilled person. The section is dealing with the commonplace circumstance that a family member will take up tasks that he or she may not normally do. There is no warrant to imply into s 15(3) a requirement that the time taken to perform the services must be referable to some objective standard of efficiency."
4. The assistance in this case was provided mostly by the plaintiff's wife, but also some assistance came from his son. The plaintiff in his evidentiary statement does not give any assessment of the hours taken. There is no evidence from the plaintiff's wife or son.
5. The occupational therapists give assessments based on an assessed number of hours, but these are the hours they think were reasonably necessary. They were not the hours that were actually performed.
6. But for the concession by the first defendant, I would have had difficulty finding the evidence necessary to found the claim. The first defendant's assessment is based on an occupational therapist's finding of reasonable hours. This would not normally be enough. However, as I have understood the first defendant's submissions, obviously subject to liability, the amount of $45,016.27 is conceded. For that reason, I will allow that amount although I have little doubt that the plaintiff did receive significantly more domestic care, probably closer to the amount he has claimed.

Future domestic assistance

1. The plaintiff's claim is for paid care. The first defendant made the point that the plaintiff did not give evidence that he would prefer paid care to gratuitous care in the future. As I have already observed, there was no evidence from the plaintiff's wife, and therefore no evidence from her that she would not continue to provide the required assistance.
2. Although the evidence is perhaps a little scant, I think I can take from the evidence of the occupational therapists that the plaintiff's wife is a nurse and that from time to time she does shiftwork. A person working in this manner is a busy person. I think I can infer that if funds were available that the plaintiff, and indeed his wife, would make use of paid care. As stated by Basten JA in White v Benjamin [2015] NSWCA 75, at [88]: "What was required was consideration of the family circumstances, including the fact that Mr White was self-employed and apparently busy; that his wife was unable to do heavy cleaning and hanging out clothes; and that cleaning services are not the kind of personal domestic assistance which one spouse may prefer to obtain from another. Rather, they are services which are readily available and availed of by those who can afford them and who are otherwise engaged in remunerative employment or have a disability."
3. The parties' assessment of future care is very different. The plaintiff's claim is for $344,486 based on six hours per week at an average rate of $73.62 per hour for 40 years (the plaintiff's life expectancy). The total is reduced by 15%. The defendant's submission is for the same period but for two hours per week at $60 per hour and with a reduction of 25%.
4. The first defendant submitted, correctly, that the opinions of the occupational therapists were not the final arbiter of the assessment. The claim was to be decided "on all the evidence relevant to these issues, including the evidence of orthopaedic surgeons concerning the effect of pre-existing conditions on the plaintiff's future capacity to engage in physical tasks." The first defendant was therefore anxious to include, as a significant factor, the pre-existing pathology which, as in respect of future earning capacity, would in any event have come to impede the plaintiff's ability to carry out domestic chores, in particular those of a heavy nature. Thus, tasks like vacuuming or strenuous gardening might have been beyond the plaintiff's ability after he reached around 50 years of age.
5. I think there is merit in the first defendant's argument which must include consideration of the plaintiff's pre-existing back pathology and also limitations that would have arisen as he aged.
6. Future domestic assistance is frequently not subject to any discount. The plaintiff here however has applied a 15% discount. I think the first defendant's suggestion of a 25% discount is excessive. The 15% takes into account, as an additional factor, the pre-existing pathology.
7. In relation to hours, I think it reasonable to allow the midpoint between the submissions, namely four hours per week. This is not an exercise in splitting the difference, but rather a recognition of the first defendant's argument that orthopaedic issues should be taken into account so as to reduce the amount of domestic assistance attributable to the compensable injury.
8. I note there were some other minor disagreements between the occupational therapists, in particular relating to assistance with driving and assistance after surgery. I prefer the evidence of Ms Hogan. I have already said that Ms Dinley's suggestion of 15 minutes per day after surgery is not reasonable. With driving, the plaintiff can drive for up to half an hour without difficulty. However, he needs breaks thereafter, and one can readily imagine him having difficulty driving for an extended period. A trip to see a doctor in Sydney could well be a difficult exercise especially if he needs to take breaks on busy roads. Some assistance with driving is reasonable.
9. In respect of the rates, the first defendant's point was that Ms Hogan, in averaging the rates, had included weekend rates. I have dealt with this point above and found that her approach was reasonable. Although I agree that a service provider would be unlikely to be available for a short period at short notice on the weekend, there is no reason that the provider could not be booked in advance. I therefore think that the plaintiff's rate is appropriate.
10. The calculation for four hours per week is as follows: 4 x 73.62 x 917.5, then reduced by 15% = $229,657.60.

Past medical expenses

1. Past medical expenses were agreed in the amount paid by the workers compensation insurer, namely $193,508.31.

Future medical expenses

1. Future medical expenses were also agreed, other than an amount of $13,491 claimed by the plaintiff for gym membership. I am not sure why the gym membership was disputed. It may be because the plaintiff said in his oral evidence that he was not a gym member before the incident. However, he did go on to say that he would join a gym in the future. I can see no reason to exclude the gym membership. It will clearly be of benefit to his fitness and functioning levels. Accordingly, I allow the whole of the future medical expenses claimed in the sum of $142,012. There is also an agreed allowance for future equipment needs of $3000. The total for future medical expenses is $145,012.
2. The following table is a summary of the amounts I have assessed. Non-economic loss $252,500 Past economic loss $563,876 Lost superannuation benefits $62,026 Fox v Wood damages $85,617 Future economic loss $890,107 Future lost superannuation benefits $129,867 Past domestic assistance $45,016.27 Future domestic assistance $229,657.60 Past medical expenses $193,508.31 Future medical expenses $145,012 Total $2,597,187.18

1. I have not reduced the total by the amount of workers compensation payments the plaintiff has received in accordance with the decision of the Court of Appeal in Synergy Scaffolding Services Pty Ltd v Alelaimat (No 2) [2024] NSWCA 11.

Orders

1. I make the following orders: 1. Verdict for the plaintiff against the first defendant in the sum of $2,597,187.18. 2. Verdict for the plaintiff against the second defendant in the sum of $1,645,876.00. 3. The defendants are to pay the plaintiff's costs of the proceedings. 4. On the cross claim by the first defendant against the second defendant, pursuant to s 5 of the Law Reform (Miscellaneous Provisions) Act 1946 the cross defendant is to contribute 10% of the amount the cross claimant is liable to the plaintiff. 5. On the cross claim by the second defendant against the first defendant, pursuant to s 5 of the Law Reform (Miscellaneous Provisions) Act 1946 the cross defendant is to contribute 90% of the amount the cross claimant is liable to the plaintiff. 6. No order as to costs on the cross claims. 7. The parties have liberty to restore the matter in respect of any alternative costs order which they might seek and in relation to the variation of the orders concerning the cross claims.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 September 2024