Bauer Media Pty Ltd t/as Network Services Company v Khedrlarian

Court of Appeal (NSW)|2018-09-03|Before: McColl JA, Macfarlan JA, Leeming JA, Coll JA, MacFarlan JA

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Judgment

McCOLL JA: I agree with Leeming JA's reasons and the orders his Honour proposes.
MACFARLAN JA: I agree with Leeming JA.

The reasons of the primary judge

The revised reasons of the primary judge occupy 35 double-spaced pages. Most of the first two pages deal with procedural matters. Pages 2-13, under the heading "Facts", deal with seemingly uncontroversial aspects of the general nature of the work performed, and then the plaintiff's history of the events of 27 February 2011 and her consultations with various medical practitioners thereafter. In relation to most of that history, the judgment reads as a series of findings.
Ms Khedrlarian was, in 2011 a 52-year-old widow, who had been born in Lebanon and educated until she was around 12 years old. She gave evidence in part in English but in part via an interpreter.
It is uncontroversial that, as the primary judge recorded at pp 2-3, Ms Khedrlarian had been employed by a labour hire company since 2006 and from that time had been working at premises occupied by Network, first at Villawood and then at Moorebank. The primary judge recorded that there were two sorts of work: "The work in which the plaintiff was engaged was process work. The work comprised essentially of two parts. Firstly, the plaintiff was working beside a conveyor belt known as on the line. In that process the plaintiff was required to pick magazines or bundles of magazines from shelves, to place them on a conveyor belt, and then to have them taken away, packed, and distributed. The second aspect of the work was work which was behind the line. Behind the line work involved picking up books from pallets, placing the bundles of books on a bench, cutting the straps or tapes that secured the bundles of books, picking out how many books were required, re-strap them, and place them back on a trolley. For this work the plaintiff worked at a bench which was about waist height."
The primary judge stated that some eight months before February 2011, a new form of knife, a "hook knife", was introduced to be used to cut the straps or tapes holding magazines together. That too seems to have been uncontroversial, although whether Ms Khedrlarian was trained in its use was and is in issue. She gave evidence in chief that when she was cutting the straps with the hook knife, she felt "electric" feelings in her arms.
It is uncontroversial that Ms Khedrlarian's last day at work was 27 February 2011, and that later that year, in July, she made a workers compensation claim based on an incident on that day. That claim was preceded first by a solicitor's letter dated 28 March 2011 requesting a copy of the claim said to have been completed at the time, and secondly by a series of letters dated early May 2011 by Ms Khedrlarian's current solicitors also asking for details of her claims, to which the response was made that "No Incident Report or Injury Report completed or submitted".
In relation to the actual events of 27 February 2011, the judgment is phrased in terms of Ms Khedrlarian's testimonial evidence. Those passages are as follows: "The plaintiff said that when she was working on the line on 27 February 2011 she experienced an injury to her neck and shoulder region when manoeuvring a bundle of magazines which was heavy, said to be more than 15 kilograms, from the shelf above to the conveyor belt below. She was working, at this stage, on the line. She said that she also experienced pain in her right wrist. … She noticed that she had the sensation of her 'electric' feelings approximately two months before 27 February 2011. She said that despite the fact that she sensed pain in her neck and shoulders when she leant over to pick up the pile of books on the line and despite the fact that she had some pain in her wrists, she continued working until the end of her shift. She said that she was working under strict instructions to use speed with her activities, and therefore, it was essential that the work be completed. She intended to proceed back to work the next day. However, she said that she had experienced such pain in her neck and shoulders that night that she telephoned her doctor, Dr Bernard Lee, early the next morning and arranged to see him."
The primary judge also recorded Ms Khedrlarian's evidence as to how her work involved her lifting bundles of magazines and cutting the straps holding them as follows: "She said the size of the bundles of books would vary. Sometimes it would be 20 books, sometimes 15. She would be required to pick them up and put them together after lifting them off the pallet. She said the manual bench which she worked at, was about abdomen height. She was then required to bend down, pick up more books, and lift them onto the table. She was asked whether there was any trolley to assist her with the work. She stated that there was no space for the trolleys to manoeuvre. She indicated that on Sundays a spring loaded trolley was available but it was not used, apparently because there was no space for it to manoeuvre between the pallets. The pallets stacked with magazine bundles, would be delivered by a forklift truck to the area of her work. She indicated how the straps were cut. Initially using a Stanley knife then a hook knife. She was asked whether she was shown how to lift the books. She stated that after she had worked about two years she was shown how to lift books onto the bench. She stated that there was a great need for speed. She said, 'So we have to be quick. We can't, like, maybe one, two minutes, not one minute. I have to pick up and strap and put them straight away.' On Sundays she said she had to pick magazines as she does normally did on the other days, but on Sundays she said, 'You have to pick all the books all at once.' She said, 'It's magazines on Sundays. They're, like, you have to pick them all. You not pick one or two. All the bundle, you put it on the line.' On the day of the injury, she said 'I'm picking the books, I lift the book, after hear something. I don't know what's happened here. I couldn't move my arms like here. I told my friends, "I hurt myself," you know.' There was much evidence and cross-examination concerning the actual movements undertaken by the plaintiff. The plaintiff said: 'A. My friend was next to me. She is with me. I told her I felt something in my neck. I'm - I'm in pain and I couldn't stop because I have to finish my job because no one can - no one can come. Like, there's no one here to take my place to work to finish the job.' She said there was no supervisor onsite. On Sunday, the job had to be done quickly. She said that she was not rotated to other jobs. Her work consisted of working on the line or behind the line. The hours of work were long. She said that they were required to work three hours for the first shift before a break of 20 minutes, return for three hours, then half an hour break, presumably, for lunch, and then resuming until eight hours on weekdays expired. She was not rotated to different areas. She said that if everything on the line was finished, she would move to a different section. If not, she stayed all day on the line for the whole day. The other section she referred to was the manual bench, collating orders. She said that during the six years she worked for Demand, there was no instruction concerning how many books she should carry at any one time. She was not given any instruction how to pick up the magazines. She said she was not shown the correct way to pick up a bundle of magazines. She said there was no limit on the amount of magazines which she could pick up. She was asked whether any supervisor actually sat with her to undertake a personal risk assessment. She said that no such assessment was ever undertaken. In using the hook knife, she said that it might be a thousand times per day that she would be cutting straps. She referred again to the need for speed in the repetitious work and of the fact that if not cutting straps, she was picking up books all day."
Mr Neil QC, who with Mr Chrysostomou appeared for Ms Khedrlarian, confirmed that he did not seek to read those passages as amounting to findings, as opposed to a recitation of his client's evidence. That concession was properly made. The contrast in the language of the reasons, which shifts from statement of (uncontroversial) background to recitation of Ms Khedrlarian's (controversial) evidence, is quite striking.
Under the heading "Plaintiff's Disability" - an area hotly in contest at trial - the reasons were once again framed almost wholly in terms of what Ms Khedrlarian said she could or could not do. The judgment then summarised the evidence of Ms Sylvia Khedrlarian, the plaintiff's daughter, the expert evidence of Mr David Cockbain (which is relevant to grounds 1 and 2 and which may be deferred until those grounds are addressed), and the lay evidence of Ms Joanne Usher (formerly employed by Demand Personnel) and Mr Ryan Martin (production manager with Network). Both Ms Usher and Mr Martin had seemingly given evidence at interviews conducted by a representative of Allianz in its capacity as the workers compensation insurer. Their statements were fairly short and dated 14 and 15 December 2011. Ms Usher's statement attached the solicitor's correspondence referred to above and other documents referred to below. Both referred to how Ms Khedrlarian was rotated and supervised, to which reference will be made below.
Under a separate heading "Findings", there follows a passage occupying slightly less than two pages between pages 24-26. Despite its heading, the section contains no "findings" as such. Instead, it reproduces various uncontroversial propositions of law, as to the duties owed by an employer and a host employer. No criticism was expressed as to the formulation of those duties. They closely adhered to paragraphs 1-6 of the plaintiff's written submissions. However, the reasons did not go on to mention the principles governing breach or causation set out on the following pages of those written submissions.
The final section in the judgment dealing with liability was headed "Breach of Duty of Care". All parties addressed this section at length in their submissions on appeal. It is convenient to reproduce the entirety of this section, which occupies less than a single page: "Applying those tests the question is whether there has been a breach of the duty of care owed by the defendants to the plaintiff. The Court is satisfied on the evidence that there has been a breach of the duty of care owed to her. The breach of the duty of care arises because despite the evidence of the existence of a system of rotation, referred to in the evidence of Mr Ryan Martin and Ms Joanne Usher, there is no evidence that in practice, the system was actually implemented. Whilst Demand may have been assiduous in being aware of potential risks, there is no evidence that in fact steps were taken to ensure that the risk which were foreseen could not come about or be minimised. There was no rotation of the plaintiff in her workplace, as referred to in Mr Martin's statement. There was no supervision of the plaintiff at any stage in her work. There was initial training for about half an hour when she joined Labour Force (which later became Demand). There was a document handed to her which related to the use, inter alia, of the Stanley knife; there is no evidence that any instruction was given in relation to the use of a hook knife to avoid strain on her wrist. Further, there is no evidence that any risk assessment was ever carried out in relation to the work being carried out by the plaintiff in the workplace. Accordingly, the evidence shows that the systems in practice were bereft of the measures which were foreseen to be desirable."
The remaining nine pages of the judgment deal with quantification of damages, although in two places reference is arguably made to questions of breach and causation. The primary judge preferred the evidence of the plaintiff's medical experts (on the basis that "they have seen the plaintiff more consistently"). His Honour concluded that: "the injuries sustained by the plaintiff were soft tissue injuries to the neck region and the aggravation of a condition which has led to the injury of carpal tunnel syndrome. Although her work may not have been the actual cause of a syndrome, it has made an otherwise asymptomatic condition symptomatic and prevented her from carrying out her work."
The primary judge then dealt with the issue whether Ms Khedrlarian's inability to work arose from her lower back condition, a matter as to which she was cross-examined at some length, and the primary judge concluded as follows: "Such statement is made in respect of the assertion that the plaintiff gave no evidence that she could not work because of her neck injury and of her carpal tunnel syndrome. However, this matter was not explored and the only evidence the Court has is that it was the neck injury and wrist injury which has prevented her from working, the plaintiff makes no claim in these proceedings for any lower back injury. Accordingly, the Court is satisfied that the plaintiff has sustained soft tissue injury to the neck and that her work has brought on symptoms in a condition which was previously not causing her any difficulty with her work, namely the carpal tunnel syndrome from which she suffers. The Court takes into account that these injuries have resulted from breaches by the defendants of the system of work under which the plaintiff was operating. The Court notes that a risk assessment which may have eliminated such risk would have cost the defendants $350 according to the evidence of Mr Cockbain."

The findings of breach must be set aside

The entirety of his Honour's reasons on breach of duty of care has been reproduced above. Those reasons appear to identify four breaches of duty, relating to (a) rotation, (b) supervision, (c) training and (d) risk assessment.

(a) Rotation

Three sentences were directed to rotation. The primary judge drew a contrast between the "system of rotation" in the evidence of Mr Ryan and Ms Usher, but concluded that there was "no evidence that in practice, the system was actually implemented". That finding that rotation was not implemented may well have been available, but it was incorrect to proceed on the basis that Mr Ryan and Ms Usher's evidence was confined to evidence of the system, as opposed to what actually happened when Ms Khedrlarian was working. Ms Usher's evidence was: "She gets regular breaks during the shifts and they get rotated around to other tasks where she would stand at the bottom of the line checking the bundles are tidy and the paper is on top of the magazines. They also rotate the lines between the tasks that are busier and slower so they all get a change and the work rate is balanced." Mr Martin's evidence was: "Every two hours the workers change position and pick different things so they are not continually doing the same thing. Mary has never complained to me about being in pain. The work is highly repetitive. The rotation around the jobs breaks that up."
This portion of Mr Martin's evidence was reproduced verbatim by the primary judge, and on one view might be regarded as confined to evidence of system. I doubt that is the preferable view, because the middle paragraph is directed to Ms Khedrlarian personally. However, Ms Usher's evidence, which was not reproduced by the primary judge, was explicitly directed to Ms Khedrlarian's rotation. It is impossible to reconcile that evidence with his Honour's statement that there is no evidence that rotation was implemented in practice. Further, the primary judge appears to have paid no regard to the safety checklists in evidence, each of which recorded that rotation of tasks was used to avoid repetitive works (see below).

(b) Supervision

In relation to supervision, Ms Usher had said in her statement: "When Mary works at Network Services she is supervised by Ryan Martin, Supervisor Network Services. Ryan allocated the work each day and supervised the work."
This passage of her statement was not mentioned by the primary judge. It amounted to unchallenged evidence of supervision. Further, Ms Khedrlarian described Mr Martin as a "supervisor" in cross-examination. She gave evidence as follows: "Q. Tara O'Connell was someone who was at the Network Services site nearly every day up until mid 2010, wasn't she? A. WITNESS: She wasn't in it, no. Q. She was the one who did your roster up until mid 2010? A. WITNESS: Yeah, but she's not come every day. She call us sometimes. Q. I said nearly every day. A. WITNESS: Nearly. Maybe once a week. She call us every - yeah. Q. Are you sure it's as little as once a week? A. WITNESS: Once or twice, I'm not sure, but not every day. Q. So, twice a week, you think? A. WITNESS: Yeah, twice a week." She denied in cross-examination that Ms Usher and Mr Martin were at the site nearly every day. Speaking of them and Ms O'Connell, she said: "Q. Tara, Joanne and Joanne's husband, when they came down they were checking on you doing the work, weren't they? A. WITNESS: Just walk past of us. They don't talk to us. Just - yeah. Q. When you say, 'They don't talk to us'-- A. WITNESS: Like we working, they don't - they don't talk to us. Q. You didn't see them talking to you? A. WITNESS: No. Q. Did you see them talking to other workers from Demand at any stage? A. WITNESS: No. Q. What were they just walking past doing there? A. WITNESS: Just give the roster, that's all. … Q. How many times - you're saying they're walking around looking at you and you say they're checking the roster? A. WITNESS: No, no. They told us what time we will start tomorrow work. That's all. Yeah."
Once again, there was a conflict in the evidence as to supervision.

In relation to training, Ms Usher's statement annexed copies of the training courses undertaken by staff, including a document apparently signed by Ms Khedrlarian on 16 November 2009 headed "Safe Cutting Techniques incl; handout of Network Services Operating Procedure for Safety Knives" and "Manual Handling". The document addressed those issues. That is the document to which the primary judge referred, and it is true that there was no evidence of any document as to training with a hook knife.
However, contrary to the finding by the primary judge, there was also evidence that Ms Khedrlarian was given some instruction in relation to the use of a hook knife. The change from a stanley knife to a hook knife was not a matter which had been pleaded, but was introduced in the plaintiff's evidence in-chief, without objection, as follows: "Q. You found the hook knife more difficult to use? A. WITNESS: Yes. Q. Were you told by the defendant how to use a hook knife? Did they teach you how to use a hook - did they - the hook knife was smaller? A. WITNESS: Yes. Q. How long did you use a hook knife for until - before you left, how long? A. WITNESS: I'm not sure exactly, maybe seven or eight months. I'm not sure. Q. When they said we're stopping using the other knife, we're going to use the hook knife, did they teach you how to use the hook knife? A. WITNESS: Just show us how to use it yes. Q. Which knife? A. WITNESS: The hook knife. Q. How did they do that? A. WITNESS: Just show everyone, like we all together standing, they show us how to use it."

(d) Risk assessment

In relation to risk assessment, Ms Usher's statement annexed to it a number of "safety checklists", which I would regard as covering at least in part the function of a risk assessment. One dated 3 February 2011 (less than four weeks before the incident) asked and answered 71 questions, including the following items: "Can all materials and equipment be lifted and carried easily? - Yes. Is rotation of tasks used to avoid repetitive work? - Yes. Are workers trained in manual handling techniques and the use of mechanical aids? - Yes."
Another of the safety checklists was dated 24 September 2009. It included the following items: "Can all materials and equipment be lifted and carried easily? - No. Is rotation of tasks used to avoid repetitive work? - Yes. Are there sufficient rest breaks? - Yes."
So far as I can see, there was no evidence explaining the different answers to the first question reproduced above from the 2009 and 2011 checklists. Nor was there evidence as to what use was then made of the completed checklists, although Ms Usher's evidence discloses that there was an "OH&S Committee".

Failure to grapple with the evidence

Thus, at least in relation to the issues of rotation, supervision and training, there was competing evidence contrary to the findings made by the primary judge, to which his Honour appears to have had no regard.
Further, the statements of Ms Usher and Mr Ryan were tendered by the plaintiff, at the instigation of counsel for Network, on the basis that they had been provided to Mr Cockbain. They had been prepared for a different purpose, but no limiting order was sought or made under s 136 of the Evidence Act 1995 (NSW). There was no cross-examination. They addressed each of the four matters found by the primary judge to amount to breaches.
True it is that there was evidence given by Ms Khedrlarian, almost seven years after the event, that she worked each three-hour stint at the same place. However, there was no attempt in the reasons of the primary judge to reconcile the unchallenged evidence of Mr Martin and Ms Usher with what Ms Khedrlarian had said. Nor was there any attempt to reconcile the finding that there was "no supervision of the plaintiff at any stage in her work" with what had been said by Mr Martin and Ms Usher.
As Ipp JA stated in Goodrich Aerospace Pty Ltd v Arsic (2006) 66 NSWLR 186; [2006] NSWCA 187 at [28], it is not sufficient to set out the conflicting bodies of evidence and conclude, without analysis, that the judge prefers one body to another. As McColl JA said in Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [66]: "Where it is apparent from a judgment that no analysis was made of evidence competing with evidence apparently accepted and no explanation is given in the judgment for rejecting it, it is apparent that the process of fact finding miscarried."
In relation to rotation and supervision, at trial Network made submissions based on the unchallenged evidence of Mr Martin and Ms Usher. These were neither recorded nor addressed.
In relation to training with the hook knife, the evidence was limited, but pointed squarely to some measure of training being provided. Whether or not the training was adequate is a separate issue, but it was wrong to say that there was no evidence that any instruction was given.
In relation to risk assessment, once again Network made submissions based upon the existence of an OH&S Committee and the completion of the risk checklists. Once again, these were neither recorded nor addressed.
I conclude that the process of making each of the four findings of breach has miscarried. All were inconsistent with competing evidence which appears not to have been considered by the primary judge. The findings as to rotation, supervision and training turn upon a rejection of unchallenged testimonial evidence (either of Ms Usher and Mr Martin, in the case of rotation and supervision, whose statements were tendered by the plaintiff, or of Ms Khedrlarian herself, in the case of training). The finding as to risk assessment is more finely balanced, but in my view more was required than is found in the reasons to conclude that the forms which seem regularly to have been completed and retained were merely discarded without thought being had to attending to the risks, and that the OH&S Committee was entirely ineffectual.

Which findings of breach were causally connected to Ms Khedrlarian's injury?

Secondly, it is unclear whether the primary judge regarded the four findings of breach as being each individually causative of damage, or cumulatively caused damage. Mr Neil maintained that the judgment could be supported on any of the findings individually, but if necessary he relied upon them collectively.
It is certainly conceivable that the failure to rotate between repetitive jobs could be causative of injury to Ms Khedrlarian. In the case of the alleged failure to train as to the use of the hook knife, causation is possible, but would seem to involve intermediate findings as to the mechanism of the injury and the consequences of the training. It is somewhat harder to see how the breaches based on risk assessment or failure to supervise could be causative of injury, at least without further intermediate findings.
But at no stage in the reasons of the primary judge were the individual breaches ever connected with Ms Khedrlarian's injury. In reaching that conclusion, I have had regard to the paragraphs in the section of the reasons addressing quantification (which are reproduced above), especially the last: "The Court takes into account that these injuries have resulted from breaches by the defendants of the system of work under which the plaintiff was operating. The Court notes that a risk assessment which may have eliminated such risk would have cost the defendants $350 according to the evidence of Mr Cockbain."
I do not regard that passage as a separate finding as to liability, although certainly the note in the second sentence is directed to the reasonableness of a response (albeit seemingly by both defendants). But the passage is to be read as a whole. It is in a section dealing with quantification, as is reflected in the opening words "takes into account". The passage is naturally read as looking back to findings already made, rather than as a supplementary finding of breach made in the middle of the section dealing with quantification of damages. I accept that an alternative reading is available, but even if it is, that does not deal with the substantial problem of the absence of meaningful findings of causation, to which I now turn.

No findings of causation

The principal reason for the absence of clarity is that, on a fair view, nowhere in the judgment is there any analysis of causation. In the case of Ms Khedrlarian's claim against Network, that analysis was governed by s 5D of the Civil Liability Act, and would have involved findings of factual causation and scope of liability. It would also have involved grappling with the notion of "risk of harm" in s 5B of that statute. In relation to Ms Khedrlarian's claim against the nominal insurer, the analysis in Wyong Shire Council v Shirt (1980) 146 CLR 40; [1980] HCA 12 for breach and March v Stramare (E and MH) Pty Ltd (1991) 171 CLR 506; [1991] HCA 12 for causation would apply. As it happens, the analysis would probably have been similar at common law and pursuant to statute: cf Vincent v Woolworths Ltd [2016] NSWCA 40 at [48].
Nowhere is it explained why, but for the absence of rotation, or supervision, or training, or effective risk assessment, Ms Khedrlarian's injury would not have occurred.
To be fair, the pleadings did not assist. The drafters of the statement of claim and Network's defence eschewed mentioning the Civil Liability Act or risk of harm.
However, this was not a case like some where the trial judge was unassisted by submissions. To the contrary, causation was quite elaborately addressed in the parties' written and oral submissions. The plaintiff took the trouble to provide written submissions, advising of the different regimes applicable in relation to each of the defendants. Junior counsel for the plaintiff elaborated orally, and in some detail: "[W]hen I say 'causal link', your Honour, it's important to realise that causation, in this case, is two-pronged. It's a causation at common law, and that uses the March v Stramare test of common sense causation. It's not a scientific test. And under 5D of the Civil Liability Act against Mr Polin's claim, 5D, your Honour, merely requires two tests. HIS HONOUR: What was the first test, the common law test you referred to? CHRYSOSTOMOU: It's March v Stramare, the famous High Court test of common sense causation. Causation - HIS HONOUR: You'll have to give me that reference. I'm not familiar - CHRYSOSTOMOU: Yes, I will give it to your Honour. It's not referred to as much because of the Civil Liability Act, but it's still the ultimate High Court - March v Stramare, and I'll give your Honour a copy of that, which is a common law - it's basically - it doesn't necessarily say it's a but for test but it says it's a common sense test of causation. It's not a scientific process. It's a common sense, everyday use of the word. But one has to also consider - and that still applies against the employer because civil liability doesn't apply against the employer. But against Mr Polin's client, it's s 5D and it's important to understand this about 5D. There are two parts of 5D that are fundamentally important which kind of follow from the Wyong Shire- HIS HONOUR: I don't have that legislation here, so if you give it to me tomorrow, that'd be good. CHRYSOSTOMOU: I can give it to you tomorrow, but just very briefly, it's both a factual causation test, which again, we say is the March v Stramare factual causation which is that the negligence was a necessary condition of the harm. So, your Honour has to satisfy on balance that the failure to do the things that Mr Cockbain said was a necessary condition of the harm."
Likewise, counsel for each defendant squarely addressed causation. For example, counsel for the Nominal Insurer said: "But the problem remains, and that is causation. It has nowhere been explained to this Court - and it would have to be - that either a risk assessment or some job rotation, if changed or if performed, would have prevented this injury, whatever the injury is that Ms Khedrlarian has suffered. It just hasn't been demonstrated to any comfortable level for your Honour to make a safe finding that there is breach in causation in this case."
On appeal, Ms Khedrlarian's written submissions relied, although without a notice of contention, upon what Gaudron J had said in Bennett v Minister of Community Welfare (1992) 176 CLR 408 at 420-1; [1992] HCA 27, and in particular upon this passage: "where there was an onus on a plaintiff employee to establish what he would have done if different working conditions had been provided, generally speaking, if an injury occurs within an area of foreseeable risk, then, in the absence of evidence that the breach had no effect, or that the injury would have occurred even if the duty had been performed, it will be taken that the breach of the common law duty caused or materially contributed to the injury." (footnotes omitted).
I do not agree that this is an answer to the absence of findings. First, this passage of Gaudron J's judgment is not to be understood as altering the law of negligence. There is nothing in her Honour's reasons suggesting that such a result was intended to be conveyed. Further, the passage is preceded by the words "And although it is sometimes necessary for a plaintiff to lead evidence as to what would or would not have happened if a particular common law duty had been performed", referring to Duyvelshaff v Cathcart and Ritchie Ltd and Quigley v Commonwealth. That demonstrates that her Honour was not purporting to state a general principle of law as to onus, but rather a matter of evidentiary onus which might arise in a particular case.
This is supported by what has been held in this Court subsequently, in TC by his tutor Sabatino v New South Wales [2001] NSWCA 380 at [57]-[74] (Mason P, with whom Priestley and Beazley JJA agreed), where earlier appellate decisions of this and other courts are considered; see also, more recently but to the same effect, Fraser v Burswood Resort (Management) Ltd [2014] WASCA 130 at [144].
The types of cases where the principle may apply include the case of a direct physical injury (such as the injury to the boy's hand in Betts v Whittingslowe (1945) 71 CLR 637; [1945] HCA 31). But in the present case, nothing in the case presented by Ms Khedrlarian caused the evidentiary onus to shift to either of the defendants.

Absence of findings of primary fact

But this is not merely a case where the primary judge made conclusory findings, without seeking to reconcile conflicting evidence, and failed to make findings as to causation. Due allowance is to be given for the fact that his Honour's reasons were delivered orally. On a charitable reading of the reasons, the findings of breach carry with them findings in accordance with Ms Khedrlarian's evidence as to the absence of supervision and the absence of training with a hook knife. But an even more fundamental difficulty with his Honour's reasons, with respect, is that no findings have been made in relation to the matters of primary fact which are the starting point for the legal analysis of breach, causation and damage.

What was Ms Khedrlarian lifting at the time?

The starting point is: what was Ms Khedrlarian lifting on 27 February 2011? Great difficulty is immediately encountered. Both as originally filed and as amended, her statement of claim (which was not verified) alleged that: "On 27 February 2011 the plaintiff leant over a bundle of magazines weighing approximately 15 kilograms and lifted the bundle when she felt pain in her neck and right shoulder."
Ms Khedrlarian's "Workers Injury Claim Form", dated 5 July 2011 (more than four months afterwards), stated that "I was working on the line and felt a sharp pain on the right side of my neck and shoulder area" and that when she was injured she was "picking magazines on the line". Some of the medical practitioners she saw later in 2011 recorded that she had been lifting weights of up to 20 kilograms. Her evidence in chief, on 13 November 2017 (more than six years later) was that she was picking what she described as a "heavy load" comprising between 25-30 books or magazines. She was cross-examined about this, and it was put to her that "the total final bundle would never exceed 11.5 kilos". That accorded with the (unchallenged) evidence of Mr Martin (which the primary judge reproduced): "The maximum amount of magazines she would lift at any one time would never go over 11.5kgs. That is the finished product weight so in the area Mary works it would be 1-2kgs at a time." Ms Khedrlarian denied that, in the following exchange: "Q. You're just looking at the size of them, aren't you? A. WITNESS: Yeah, but still, the book's thicker than - maybe 15 kilo or more, not 11, sorry. Q. You know, don't you, that Ryan-- A. WITNESS: Yes, I know. I know, I worked there, I know how they - how the books are heavy or not, I know. Q. When did you, by chance, ever weigh any of the magazines when you were at work? A. WITNESS: Sorry? Q. When did you weigh them? A. WITNESS: Weigh them? I don't weight them but I know it's heavy. For me, it's heavy. Q. For you, it's heavy. A. WITNESS: Yeah, exactly. Q. I'm telling you that the final bundle that came out was never more than 11 and a half kilos. A. WITNESS: No, more."
There are obvious difficulties with Ms Khedrlarian's assertion as to the weight of the bundles she was lifting, although it may be expected that a person whose occupation involved the repetitive lifting of variously sized bundles of magazines for some years might develop a relatively acute sense of the relative weights of those bundles. But the problem in this Court is that there is no rational or fair way in which a finding could be made as to the weight of the bundle she was lifting on 27 February 2011.
I have considered whether, given the unchallenged evidence of Mr Martin, the Court should proceed on the basis that no finding inconsistent with his evidence should be made. It was suggested, both in this Court and at trial, that the system was computerised, such that it was impossible for a bundle weighing more than 11.5kg to be assembled. However, Mr Polin did not take the primary judge, or this Court, to evidence of that fact, save insofar as it was asserted as a conclusion by Mr Martin. Given the way the trial was run, I do not think that would be fair. It would involve rejecting what appears to have been the dogmatic evidence of Ms Khedrlarian, maintained in cross-examination.

When did Ms Khedrlarian first claim to suffer symptoms?

Next, there was an unresolved conflict in Ms Khedrlarian's evidence as to the onset of her injury. Her Workers Injury Claim Form made no mention of any symptoms prior to 27 February 2011. However, in her evidence in-chief, she said that after she began using a hook knife, she began experiencing a pain which she described as "electric" going into her right wrist. The form stated that she had not previously had another injury/condition or personal injury claim that related to this injury/condition. Further, a history contained in a letter from one of her treating doctors stated: "This lady reported a gradual onset of neck and shoulder girdle pain on the right hand side and pain in both wrists and this worsened gradually over a period of time but became unbearable on 27 February 2011."
When confronted with this, Ms Khedrlarian gave evidence which is difficult to understand clearly: "That wouldn't be right, would it? Because it wasn't a gradual onset, you were taking some magazines and you felt pain at that point in your neck? A. WITNESS: Yes. Q. Is that right? A. WITNESS: Yeah. Q. You didn't describe any pain in your wrists at the time you were taking the magazines at that point, did you? You said it was in your neck, up here? A. WITNESS: I said there. Something happen here. Yeah. Q. So, that wouldn't be right? A. WITNESS: Mm. Q. You weren't describing a condition that was getting gradually worse and worse over time and became unbearable on 27 February 2011, were you? You were just describing an incident that occurred on that day? A. WITNESS: Who describe to? Q. You were describing, you were working for five hours and then at a point in time you went and got these magazines and you felt pain in your neck? A. WITNESS: Yes. Yeah." There are no findings, one way or the other, by the primary judge, about any symptom prior to the incident on 27 February 2011. Again, I do not think this Court can fairly cure the absence of findings of primary fact.

How did Ms Khedrlarian perform the work?

Thirdly, Ms Khedrlarian gave evidence in part in English (which was imperfect), and in part through an Arabic interpreter. Parts of her evidence are difficult to understand merely from the transcript. In particular, there is some difficulty in understanding precisely from what height she was lifting the bundles of magazines and to what height she was depositing them. The order was placed on a table at around the height of her abdomen and then she gave evidence of getting the magazines as follows: "Q. Where would you have to go to get the magazines? From your position in the bench, where would you then have to move to? A. WITNESS: Say from here to there, put a couple of pallets next to each other. So I have to go pick from them. Q. At the moment, you're sitting down and you're indicating like it's an office. A. WITNESS: Okay, you want-- Q. It's not an office, is it? Is it like an office now? A. WITNESS: No. Q. I'm just trying to - I know you want to sit-- CHRYSOSTOMOU: The difficulty is, your Honour, she's sitting down and giving the evidence and I mean, she's - my friend has said that she's sort of - it's almost like at arm's length, but it's - I'm just trying to ensure-- POLIN: It is. CHRYSOSTOMOU: It is? POLIN: Yes. CHRYSOSTOMOU: All right. Q. You've got to do the best you can. A. WITNESS: Okay."
The plaintiff then sought to explain the process of taking magazines from pallets in accordance with the order as follows: "Q. Then when you had the order, from the table, what would you then do? What was the next thing you'd do? You'd go to the pallets? A. WITNESS: I go to pallet. Do you want me to go to show you or-- Q. Could you demonstrate to his Honour what you would do? Okay, if you can. A. WITNESS: Like, this a pallet there, a pallet there and a pallet there and the ..(not transcribable).. I put them on - I have to pick .. (not transcribable) .. I put them there. It depend how many books they want. Q. So you would do that in respect of-- HIS HONOUR: Can I just indicate the witness indicated she picked something up from a height which was lower than abdomen height. CHRYSOSTOMOU: Yes, yes. HIS HONOUR: And I'm not quite sure if it was from a table or a conveyor belt or what. CHRYSOSTOMOU: Yes. Perhaps I could clarify, your Honour. Q. When you indicated the motion you walked away and you bent down, were the books at the same level as the table or below the table? A. WITNESS: It was high and then after, they go low. Q. Why would they go low? A. WITNESS: Because we pick them. You have to take - like, you know, when they come to the lower, just like you have to bend more."
After the luncheon adjournment she gave the following evidence: "Q. You would look at the label with different magazine orders? A. WITNESS: Yes. Q. Then you would go to the - turn around or walk around and find the magazines for that order? A. WITNESS: Yes, yes. Q. What would you do next when you found a magazine? A. WITNESS: I picked them by both hands. CHRYSOSTOMOU: Now could the Court - perhaps you can indicate for the record that the witness-- Q. Can you indicate to his Honour what you just did? How would you pick the magazines? Can you redemonstrate what you just did with your hands? No, no, no sitting down please. A. WITNESS: Okay. I just picked them from the pallet like that. I take them to the bench, I put it there, I have to cut them with the long knife. Q. Stopping there. A. WITNESS: Okay. Q. How would you pick the magazines from the pallets? How? What would you be holding onto? A. WITNESS: (No verbal reply) Q. What would you be holding - does the interpreter need to - A. INTERPRETER: Just I you know pick them with my hands and then put them back. Q. But what would you be holding onto? What would you be holding to? A. INTERPRETER: Books. I hold the books." In cross-examination she accepted that she was taking magazines from a shelf "just about waist height".
Relying upon the transcript alone, I would - albeit with some hesitation - infer that the magazines lifted by Ms Khedrlarian were at approximately waist height. However, I am far from satisfied that I fully understand the mechanism described by Ms Khedrlarian as to how she claimed her injury occurred. I am quite confident that significant aspects of her evidence are not recorded in the transcript, in part because of the familiar imperfections of transcript (especially where an interpreter is used) and in part because some of her evidence was by way of gesture and physical demonstration.
In the absence of primary findings of fact, it is not possible to determine the challenges to the apportionment of liability and the quantification of damages.

The orders this Court can make

The primary judge made no findings whatsoever as to what precisely Ms Khedrlarian was doing, or whether there was (in accordance with her testimonial evidence but contrary to some relatively contemporaneous documents) a sensation of pain in the two months prior to 27 February 2011, and, if so, the location of that pain.
The appeal in this Court is by way of rehearing, and this Court may, if it is able to do so, make all necessary findings of fact. A new trial is to be avoided, unless all other courses would resort in some substantial wrong or miscarriage: UCPR r 51.53. I have considered whether it is possible, through making findings of fact favourable to Ms Khedrlarian, to determine whether a further trial can be avoided, because the proceedings would inevitably be dismissed. No party sought a retrial.
Let it be assumed, favourably to Ms Khedrlarian, that she never rotated and potentially remained doing the same repetitive tasks over a series of three-hour shifts. If, in accordance with her pleading and her (challenged) testimonial evidence, those tasks involved lifting magazines weighing up to 15kg, then I would be reluctant to conclude that there had been no breach of duty by either defendant, or that Ms Khedrlarian had failed to discharge her onus of establishing that such breach was causative (either at common law or in accordance with s 5D) of her injury. True it is that Mr Polin submitted that there had been no suggestion of any other injury in the previous five years. That is relevant, but I do not regard that as being dispositive of the issue of breach. I am also conscious that on one view Ms Khedrlarian was merely taking individual magazines or small bundles of them and assembling an order, but to proceed on that basis would amount to a rejection of her evidence that she was lifting 15 kg.
I think there is a possibly a further difficulty, somewhat different in nature, confronting an attempt to resolve this litigation without a retrial, although in light of the parties' stance it was not explored in argument. The primary judge admitted into evidence the report of Mr Cockbain. The introduction of that report includes the following: "The Plaintiff worked as a process worker collating book and magazine orders for customers including manual order picking and working on a production line in addition to various related manual handling tasks, On 27 February 2011, the Plaintiff lent over a pile of books weighing approximately 15kg which was positioned on a bench and lifted the pile to place them on the conveyor belt, as the Plaintiff lifted the pile she felt a twinge followed by immediate pain in her right shoulder and neck. The Plaintiff began developing pain in her neck, shoulders and arms prior to the incident which gradually worsened during the months leading up to the incident on 27 February 2011. The Plaintiff also experienced numbness and an electric shock sensation in her hands when using a cutting tool to cut the straps which held the piles of books and magazines together."
The report contains opinions which are favourable to Ms Khedrlarian on the issues of breach and causation. True it is that, as Network and the Nominal Insurer submit, a powerful case may be advanced in support of the inadmissibility of all or parts of the report, both because Ms Khedrlarian's evidence did not establish its assumptions, and because its reasoning process was not set out. Let that be assumed, although one difficulty in doing so is the absence of findings of primary fact.
Ordinarily, the orders resulting from a successful challenge to the admissibility of evidence are a retrial. In the present case, the appellants seek (a) verdicts in their favour and (b) the exclusion of expert evidence favourable to Ms Khedrlarian. That strikes me as at least potentially unfair. The report was admitted, after argument, on the second day of the hearing. The plaintiff's case had not closed (counsel had expressly reserved his position on closing his case in relation to the undetermined objection to the expert report). Had the report been rejected, it is unclear what course the plaintiff would have taken. It is unclear whether steps would have been taken to adduce further expert evidence, or whether an adjournment would have been sought, and, if so, whether it would have been granted. It may very well have been the case that the trial would have proceeded on the same evidentiary basis as it did, but that is not something that one can be confident of at this stage. Had the report been rejected, Ms Khedrlarian may have applied to adduce evidence in chief from Mr Cockbain, or sought an adjournment. Whether either course would have been permitted is unclear, but I do not think the possibility could be discounted. Accordingly, insofar as the appellants submit that Mr Cockbain's report should be excluded from the evidence and on that basis there are incurable gaps in the evidence in relation to breach and causation, I am not satisfied that there would be no substantial injustice to Ms Khedrlarian.

Orders

For those reasons, the appeal must be allowed and the orders made by the primary judge set aside. In circumstances where I am unpersuaded that this Court can make findings itself to determine the litigation, it is impossible to avoid the cost and expense of a retrial.
In this Court, Ms Khedrlarian sought to defend all aspects of the reasons of the primary judge. There is no reason for costs of the appeal not to follow the event. Costs of the first trial should abide the outcome of the retrial. Neither the notice of appeal nor the cross-appeal, nor (so far as I can see) elsewhere in the appeal materials is there identified whether any orders as to costs were made in the District Court. Network seeks an order setting aside "any costs orders made in the District Court". Such order is too broadly framed; it does not follow from the outcome of this appeal that any and all interlocutory costs orders ought to be disturbed. If any costs orders were in fact made following the trial consequent upon Ms Khedrlarian's success, then they should be set aside, and Network or the Nominal Defendant should apply to this Court within the 14 days specified in the rules identifying them so that that can occur.
I propose these orders.
Appeal and cross-appeal allowed.
Set aside the orders made on 24 November 2017.
Remit the proceedings to the District Court for retrial.
The costs of the first trial to be within the discretion of the Court which hears and determines the retrial.
Ms Khedrlarian to pay the costs of Bauer Media Pty Ltd and the Workers Compensation Nominal Insurer of the appeal and cross-appeal.

addendum

Following delivery of this judgment, an application was made, within the time specified by UCPR r 36.16, for a suitors' fund certificate for Ms Khedrlarian. The Court acceded to that application, entering the following order on 1 November 2018 in chambers: "Order that Ms Khedrlarian be granted a certificate under the Suitors' Fund Act 1951 (NSW)."

Amendments 01 November 2018 - Addendum and paragraph 75 added. 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: 01 November 2018

Suitors' Fund Act 1951(NSW)

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