Bol'Shakov v Fulton Hogan Industries Pty Ltd

Nature of case

1. This is a work injury damages claim governed by the provisions of the Workers' Compensation Act 1987 (NSW) ("WC Act"), and the Workplace Injury Management and Workers Compensation Act 1998 (NSW) ("WIM Act").

Issues for determination

1. The essential issues to be determined in this case are; first, the factual circumstances in which the plaintiff was injured; secondly, whether the plaintiff was injured by reason of the negligence of his employer; thirdly, whether there was contributory negligence on the plaintiff's part; and fourthly, the assessment of the plaintiff's entitlement to damages.

Undisputed factual background

1. The plaintiff is now aged 45 years. On 8 March 2017, when he was aged 41 years, he was injured in the course of his employment with the defendant, Fulton Hogan Industries Pty Limited, when he was working with a jackhammer as a roadworks labourer.
2. On the day of his injury, the plaintiff was a member of a roadworks crew engaged in resurfacing a portion of bitumen highway on the Ridge Road, Oakdale, NSW. His allocated duties involved the use of a heavy jackhammer to break up difficult to reach residual sections of a bituminous roadway that was inaccessible to other machinery.
3. In the course of that work the plaintiff sustained a lumbar disc injury, which ultimately required surgical treatment. The plaintiff underwent a lumbar fusion procedure on 9 August 2017. Despite that procedure, he has been left with significant ongoing back and referred leg pains, bladder and urogenital problems, surgical scarring, and related psychological problems. He also faces further surgical and related treatment.
4. The plaintiff has been unable to undertake any work since his injury. The prospect of him returning to any form of gainful employment is now remote. He continues to need strong painkilling medication to enable him to manage his day-to-day existence.

Evidence overview

1. The parties prepared a joint Court Book: Exhibit "A", pp 1 - 464. The plaintiff's background history is set out in a detailed chronology: Exhibit "B". The plaintiff was the only witness to give oral evidence in his case. He gave his evidence remotely via an AVL connection. The parties agreed upon the tender of a series of statements obtained from the defendant's employees as contained in Exhibit "A". Those witnesses were not called to give oral evidence.

Evidence review

1. The evidence of the respective witnesses is summarised in the paragraphs that follow.

Plaintiff's evidence

1. The plaintiff impressed as a careful witness who gave his evidence on factual matters in reasonable and credible terms. There was no material challenge to his testimony and I accept his evidence in its entirety.
2. The plaintiff's evidence is summarised in two segments, first in relation to the liability issues, as immediately follows, and secondly, in relation to the damages issues. The latter summary will appear in that part of these reasons dealing with the assessment of the plaintiff's damages.
3. The plaintiff was born in Russia. He arrived in Australia in 2005. In 1998, in Russia, he obtained tertiary engineering qualifications in civil and road construction. Whilst in Russia he later changed his employment to work as a police officer and he ultimately became a detective.
4. In Australia the plaintiff worked in various roles within the road construction industry. These included traffic controller, truck driver, and as a roadworks construction labourer. On 14 April 2008, he commenced the latter employment with the defendant, a large commercial enterprise engaged in road construction. In that business, the defendant deployed the plaintiff and other members of its road construction crews at various sites throughout Australia.
5. On the morning of 8 March 2017, the plaintiff and his fellow crew members, Mr Trent Newman, a leading hand acting foreman, and fellow labourers, Mr Michael Gaita and Mr Paulo Eteuati, were engaged in the resurfacing of a highway at Ridge Road, Oakdale, NSW.
6. A bitumen surface milling machine, a Bobcat, had removed the surface of 5m wide lane portions of bitumen roadway in approximately 500m lengths. The profile of the end of each cut portion of bitumen was left rounded as the Bobcat could not achieve a squared-off edge. The edge had to be squared off by the use of a jackhammer before bitumen resurfacing could take place.
7. On the day of the plaintiff's injury the initial part of his tasks initially involved assisting in removing a jackhammer from the back of a truck. He said it weighed about 46kgs. I consider his account of the weight of the jackhammer to be more reliable than the estimates contained within the other versions.
8. The plaintiff was required to use the jackhammer to cut the end and the corner sections of the milled bitumen roadway where the Bobcat could not reach. He had not received any particular training or instruction in the safe use of jackhammers. He had acquired his knowledge on the use of jackhammers over time from observing others on the job whilst in the employ of the defendant. He had become accustomed to using the jackhammer on various roadwork sites for prolonged periods.
9. On a previous occasion, the plaintiff had spoken to his supervisor, Mr Shane Kelly, to voice a concern about the prolonged use of heavy jackhammers. He was told: "If you don't like it, go and find the (sic) job at McDonalds". He had also become aware that people in the defendant's employ could be sacked on the spot for wrongdoing or not carrying out allocated tasks. As he needed the money, he stopped raising the subject of safety. Mr Kelly was not called to give evidence.
10. Between 2008 and 2017, whilst the plaintiff was in the defendant's employ, he did not attend any formal courses dealing with the safe use of jackhammers. However, he did attend some "toolbox" meetings for particular job inductions. At one such meeting he was told that safe lifting required limiting weights to 20kgs, provided lifting was undertaken with a straight back, and with bent knees. When he pointed out that jackhammers were more than double that weight, the defendant's safety officer to whom he addressed those remarks, did not respond. However, later the work system was changed so that it allowed workers lifting heavy equipment to call for assistance in handling heavy weights.
11. On one particular day, the defendant company was short of an on duty supervisor. Another employee of the defendant who was acting as a supervisor, Mr Jonathan Ivkovitch, told the plaintiff to jackhammer a large section of road. On that day, the plaintiff had used the jackhammer for most of the 12 hour working day. There was no reliable evidence produced to contradict the plaintiff's account.
12. On 8 March 2017, the plaintiff had been allocated to carry out jackhammering duties on the bitumen roadway. The plaintiff's fellow worker, Mr Michael Gaita, asked the plaintiff, twice, whether he wanted to swap duties. The plaintiff replied that as he had only been jackhammering for a relatively short time and was not tired, he said that when he felt tired he would tell Mr Gaita and then swap jackhammering duties for sweeping duties.
13. The plaintiff expected to be jackhammering a 5m length of edging for about 30 to 40 minutes. The work was difficult because the cutting blade of the jackhammer was prone to become stuck in the hardened bitumen roadway surface. This would require greater physical effort to jerk it out of a jammed position. The plaintiff said that in that crew, when carrying out roadworks, he was the one who was normally allocated to jackhammering duties.
14. On 8 March 2017, in the course of that work, after some minutes of vigorously working with the jackhammer, the plaintiff proceeded to exert a vertical force to lift it after the cutting portion had become embedded in the hardened bitumen. In those events he experienced a sudden popping sensation in his lower back. He also felt very sharp pains that travelled down to both of his legs. He was only part-way through the allocated task at that time. Previously he had estimated the job would take him about 30 to 40 minutes.
15. When the plaintiff was injured, he dropped the jackhammer and struggled to stay upright. He managed to hold onto, and get to the nearby work van. He managed to crawl into the back seat. He was given assistance. An ambulance was called. He was taken to Campbelltown Hospital for examination and assessment. He was then discharged into the care of his general practitioner on the same day. The course of the plaintiff's subsequent treatment will be reviewed in relation to the damages issues.
16. The plaintiff said that he had not heard that the defendant had timeframe requirements for jackhammering work, which I took to mean time limits for continuously working with jackhammers. His co-employee, Mr Ivkovitch, who was in a supervisory role on the day, although not a formal supervisor, had allocated him to jackhammering duties at the commencement of the working day.
17. After Mr Ivkovitch allocated jackhammering duties to the plaintiff he did not remain as a supervisory presence in the vicinity where that work was to continue. Instead, he went to check on profiling work at another location on the job.
18. The plaintiff said that when work was allocated amongst the crew he would do most of the jackhammering. He estimated this to be about 80 per cent of that work.
19. Whilst the plaintiff agreed that other workers had offered to swap roles with him when he was jackhammering, he told them he would do so when he felt tired. No-one on behalf of the defendant gave the plaintiff a supervisory direction to the contrary.
20. In answers to questions asked of him in cross-examination, the plaintiff explained that his work for the defendant often involved long hours, including comprising shifts of 12 hours per day. He persevered with the work to support his family and pay his mortgage.
21. The plaintiff said that he was unaware that prolonged use of the jackhammer by one person could lead to injury. The suggestion within the question that elicited that answer was contrary to his own experience of working with jackhammers over the course of 9 years. He had never been formally shown the correct method of using a jackhammer whilst in the employ of the defendant.
22. The plaintiff said that the culture at the workplace was that the management was "pretty tough" and if an employee refused to carry out an allocated task, or if the work was done by a different method to that which was expected, this could result in a sacking on the spot.
23. The plaintiff acknowledged that on the day in question, before his injury, he had been asked by other workers whether they could take over the jackhammering from him. The first two requests were before he had started jackhammering, and the other two requests were made when he was within the first 5 minutes of carrying out that allocated task. Reasonably, he declined in each instance.

Evidence of Trent Newman - work site foreman

1. In the defendant's injury report form, which is dated 8 March 2017, at 8.20am, Mr Trent Newman identified himself as the foreman on site, as distinct from being a supervisor: Exhibit "A", p 88.
2. In Mr Newman's handwritten statement dated 9 March 2017, Mr Newman identified himself as an acting foreman. In Mr Newman's statement dated 17 January 2020, which was prepared on behalf of the workers' compensation insurer, he identified himself as the leading hand on the site: Exhibit "A", p 91, par 15.
3. Mr Newman described the plaintiff's injury as having occurred after about 5 minutes of jackhammering. This was after 3 - 4 employees had asked him whether he wanted to swap duties after "roughly 5 - 10 minutes" of jackhammering: Exhibit "A", p 89.
4. In that statement (at par 18 on p 92), Mr Newman identified the fact that pre-injury, the plaintiff presented as being very fit, strong, and in good general health, in full time employment with the defendant: Exhibit "A", p 92, par 25. Mr Newman stated the plaintiff was "closely supervised" by both himself as leading hand, and by Mr Ivkovitch, but as the plaintiff was regarded as being "very good at his job", instructions and directions were rarely required: Exhibit "A", p 94, par 39.
5. Mr Newman confirmed that in the time leading up to the plaintiff's injury, the plaintiff had declined offers by co-workers to take over the task of jackhammering. He also confirmed the informal practice that had developed within the defendant's roadworks crews for swapping the task of jackhammering every 15 to 20 minutes: Exhibit "A", p 95, par 45 - par 46.
6. Mr Newman was working alongside the plaintiff at the time of his injury and he had not noticed the plaintiff doing anything unusual with the jackhammer at the time of injury: Exhibit "A", p 96, par 49.
7. There was no reason to doubt the reliability of Mr Newman's evidence except as to his account which suggested the plaintiff was closely supervised. Mr Newman's evidence did not materially contradict the evidence of the plaintiff on the factual circumstances in which he became injured.

Evidence of Jonathan Ivkovitch - foreman

1. Mr Jonathan Ivkovitch provided two statements to the workers' compensation insurer, on 17 January 2021 (Exhibit "A", pp 99 - 111), and on 21 May 2021: Exhibit "A", pp 112 - 123. The salient features of his successive statements are as follows: 1. At the time of the plaintiff's injury, he was employed as a foreman, and had not yet transitioned to the role of supervisor: Exhibit "A", p 100, par 16; 2. The plaintiff was considered to be sufficiently fluent in English and was regarded as being exceptionally strong, fit and healthy: Exhibit "A", p 101, par 22; 3. The plaintiff worked between 38 and 72 hours per week at any rostered time in a 24 hour day: Exhibit "A", p 102, par 32; 4. He regarded the plaintiff to be an experienced jackhammer operator: Exhibit "A", p 117, par 41; 5. The plaintiff typically and regularly operated a jackhammer for between 30 and 60 minutes per day: Exhibit "A", p 103, par 37; 6. At the time of the plaintiff's injury there was no-one in the formal designated role of supervisor at the job site: Exhibit "A", p 106, par 55 - par 56; 7. He did not recall ever instructing the plaintiff to use the jackhammer on the day in question, but he conceded it was possible that he did so: Exhibit "A", p 115, par 30; 8. On the previous Saturday or Sunday, the plaintiff was required to work an unusually physically demanding shift due to a shortage of 3 crew members. As a result, the plaintiff was spending some 3 to 4 hours of continuously operating a jackhammer to break down asphalt. The plaintiff had selflessly stepped up to bear the burden of work in light of crew shortages: Exhibit "A", p 107, par 59 - par 60; 9. He believed that the plaintiff's injury occurred some 10 minutes into the jackhammering on the day in question: Exhibit "A", p 108, par 66; 10. When, during the plaintiff's work on the day, the plaintiff declined the offer of swapping duties, Mr Ivkovitch did not insist that the plaintiff swap his task: Exhibit "A", p 114, par 21. Nor did Mr Ivkovitch remind the plaintiff of a need to swap from jackhammering after 10 minutes: Exhibit "A", p 114, par 23; 11. He did not witness the occurrence of the plaintiff's injury. However, it was reported to him by Mr Newman, and by others, that it occurred after he had been jackhammering for about 5 - 10 minutes: Exhibit "A", p 116, par 34; 12. He estimated that in a 5 - 10 minute period, over a width of approximately 3m, the plaintiff would have made about 30 cuts, each with repeated propulsions of the jackhammer blade (about 150 in all): Exhibit "A", p 117, par 38 - par 39. This equates to between 15 to 30 propulsions per minute, or every 2 to 4 seconds, which suggests the work, which was heavy, involved intensive effort; 13. He made critical comments on the plaintiff's expert report: Exhibit "A", pp 118 - 119, par 43 - par 56. He also made critical comments on the plaintiff's pleaded particulars of negligence: Exhibit "A", pp 119 - 122, par 57 - par 79.
2. There was no reason to doubt Mr Ivkovitch's factual evidence. However, his commentaries on the report prepared by the plaintiff's expert and his comments on the particulars of negligence indicated that his evidence had an argumentative element, which required that it be viewed with considerable caution. His evidence did not materially contradict the evidence of the plaintiff on the factual circumstances in which he became injured.

Evidence of Kevin Saliba - operations manager

1. Mr Kevin Saliba, the defendant's operations manager at the time of the plaintiff's injury, prepared a statement for the workers' compensation insurer on 21 May 2020: Exhibit "A", pp 124 - 136.
2. Mr Saliba confirmed the job and responsibility hierarchy that prevailed at the time of the plaintiff's injury. Mr Ivkovitch was the foreman who reported to Mr Shane Kelly, the supervisor, who in turn reported to Mr Saliba: par 18.
3. Mr Saliba spoke of the work system in place for jackhammering tasks in general non-specific terms, namely, that no-one was required to use the jackhammer for long periods of time: par 34.
4. Mr Saliba's adamant statement (at par 35), to the effect that here was "absolutely no way the claimant would ever have been jackhammering for 12 hours at any one time" and his statement casting doubt as to the pace at which the plaintiff worked (at par 44), must be discounted as he was not on site at the relevant time and he had no direct supervisory role in relation to the plaintiff's work. His statement was essentially in the form of submissions.
5. Mr Saliba (at par 48), drew attention to the defendant's Safe Work Method Statement (SWSM) which required 10 minute task rotation. He said that the plaintiff would have been required to read and acknowledge the SWSM by signing. That document was not tendered by the defendant.
6. Mr Saliba's suggestion (at par 70) that the plaintiff "actively broke … SWS (rules) when he did not rotate out of the tasks within 10 minutes" should be discounted in light of the employer's non-delegable duty to ensure that employees complied with any such rules. This was the supervisor's role.
7. Mr Saliba's statement contained some irrelevant historical information that was critical of the plaintiff: par 59. Those matters have no significance to these proceedings, particularly as they were not put to the plaintiff in cross-examination for his comment.
8. Much of Mr Saliba's statement (par 62 - par 68), was argumentative, and was in the form of an adversarial commentary on the plaintiff's pleaded particulars of negligence.
9. In light of Mr Saliba's critical commentaries and his reliance on hearsay accounts of the plaintiff's work and the circumstances of injury, his evidence on factual matters in contention should also be viewed with considerable caution. His evidence did not materially contradict the evidence of the plaintiff on factual matters concerning the circumstances in which he was injured.

Evidence of Michael Gaita - machine operator

1. Mr Gaita provided a statement to the workers' compensation insurer on 24 January 2020: Exhibit "A", pp 137 - 145.
2. Mr Gaita confirmed that the plaintiff's duties in the roadworks crew varied and were shared amongst crew members: par 24 - par 25. Mr Gaita claimed that at toolbox meetings at job sites, "there would be discussions around the safe system of work for using a jackhammer", including limiting the continuous use of jackhammers to a few minutes. He was unable to recall whether SWMS documents specifically addressed the use of jackhammers: p 141, par 28 - par 30; par 36.
3. Mr Gaita identified Mr Lene Lene and Mr Michael Gray as co-workers on the site when the plaintiff was injured: p 142, par 42. Mr Gray is now deceased. There is no evidence as to when he became deceased or whether Mr Gray had beforehand provided a statement to the defendant. No statement was tendered from Mr Lene.
4. Mr Gaita could not say how long the plaintiff had been using the jackhammer on the day of his injury. He did not see the plaintiff being injured. He confirmed that the plaintiff had declined assistance from other employees. He also confirmed that Mr Ivkovitch was not present at the particular site where the plaintiff sustained his injury: Exhibit "A", p 143, par 47 - par 53.
5. Mr Gaita claimed that the work of crew members was regularly monitored by the leading hand and foreman: par 37. I do not read his evidence in that regard as indicating that the plaintiff's work was appropriately monitored and supervised in the events leading to his injury. Mr Gaita's evidence was of limited probative value. His evidence did not materially contradict the evidence of the plaintiff on factual matters concerning the circumstances in which he was injured.

Evidence of Paulo Eteuati - crew member

1. Mr Paulo Eteuati provided a statement to the workers' compensation insurer on 24 January 2020. It was not signed: Exhibit "A", pp 146 - 151. He did so with the assistance of an interpreter.
2. Mr Eteuati was a member of the defendant's road work crew at the time the plaintiff was injured. He said the defendant had provided him with training on safe work practices concerning the use of jackhammers but he could not recall the details: par 22 - par 24.
3. Mr Eteuati said the plaintiff had only been operating the jackhammer for a few minutes before he was injured and he had offered to swap with the plaintiff on about 3 occasions before the injury and that assistance was declined: par 36. He said the plaintiff was "stubborn" in that regard: par 36. He did not see the plaintiff at the time he was injured. He did not know if the plaintiff was being supervised at the time. He named the site supervisor as Mr Ivkovitch: par 41. This was plainly a misnomer.
4. Mr Eteuati said the "supervisor would ensure that the … safety practices were followed…" and that all of the crew were aware of those practices: par 26. It is not clear as to how he could reliably attribute that awareness to the plaintiff. His commentary seems to be based on an unproven assumption. Mr Eteuati's evidence was of limited probative value. His evidence did not materially contradict the evidence of the plaintiff on factual matters concerning the circumstances in which he was injured.

Defendant's documents

1. The defendant relied upon a series of historical documents relating to the plaintiff's work inductions as part of its liability case: Exhibit "A", pp 153 - 180. These documents comprised: 1. A non-specific acknowledgement of induction form dated 18 April 2008; 2. A work site induction form dated 21 April 2008 which only referred to the use of jackhammers in the context of a source of noise; 3. A statement of attendance at a technical instruction course on 25 August 2009. The form only referred to safety as a generic issue; 4. A "Stay Safe" form dated 26 August 2014 concerning "golden rules" for safety, which made no reference to jackhammers; 5. A non-specific site induction form dated 17 June 2015 that made no reference to jackhammers; 6. A non-specific site induction form dated 14 June 2016 that made no reference to jackhammers; 7. A "worker on foot" safety assessment form dated 26 August 2016 that made no reference to jackhammers; 8. A non-specific training attendance record dated 2 September 2016 that made reference to separation of people and plant, and workers on foot; 9. A non-specific "back to work" training presentation session on 9 January 2017; 10. A Competency Assessment form dated 8 February 2017 for spraying hot bitumen, which made no reference to jackhammering; 11. The defendant's "Site Assessment induction form" dated 9 March 2017 (sic). This photocopied document had a strange appearance. The handwriting on it could only be read with the aid of a mirror. It had either been written in reverse or copied in reverse with carbon paper. When read with the aid of a mirror it was revealed to be Mr Newman's report of the plaintiff's injury at 8.30am on 8 March 2017, in his capacity as acting site foreman: Exhibit "A", p 180.
2. Those documents were tendered without explanatory oral evidence. In my view they do not form a proper basis for inferring that the plaintiff had received proper pre-injury training and instruction on the safe and appropriate use of jackhammers for the roadworks for which the defendant employed him. Those documents do not assist the defendant's case in any material way.

Evidence of Mark Dohrmann - plaintiff's consultant engineer

1. The plaintiff relied upon the expert report dated 7 October 2020, from Mr Mark Dohrmann, a consultant engineer and ergonomist: Exhibit "A", pp 22 - 58. He was not required for cross-examination. There were no objections raised in relation to his report. The defendant did not have any expert evidence to contradict Mr Dohrmann's opinions. His opinions remained unchallenged. The report was prepared in compliance with the Code of Conduct for expert witnesses: UCPR, Sch 7. Reference will be made to aspects of Mr Dohrmann's report in the analysis of the question of whether the defendant was relevantly in breach of its duty of care to the plaintiff.

Issue 1 - Factual circumstances of the plaintiff's injury

1. On the day of the plaintiff's injury, he was allocated the task of manhandling and using a heavy MX60 jackhammer. He was required to use the jackhammer in order to cut and trim the bitumen edge of sections of roadway that had been milled by a Bobcat which had been set up for that particular purpose. The jackhammer could only be used by a single operator at any one time.
2. The plaintiff had to manipulate the jackhammer into a cutting position and then operate it in pulsed sequences to ensure that, piece by piece, the cutting blade or tip pierced and broke up portions of bitumen roadway. He was then required to manually lift the jackhammer, weighing about 46kgs when fully fitted with its attendant parts, without assistance, and then reposition it to repeat the process. The job required that this be done numerous times until the residual bitumen edge of roadway was completely broken up in readiness for sweeping and removal of debris.
3. The heavy and repetitive nature of the task indicated that it was difficult work. The jackhammer had to be held in position by its handles as shown in the photographs that were incorporated in the documentary evidence. This required the plaintiff, an apparently tall man, to adopt a forward flexed position of his lumbar spine when operating the jackhammer.
4. The plaintiff applied himself to the task assigned to him for some minutes. The report of Mr Dohrmann indicates that the precise number of minutes is of little importance. Irrespective of whether it was for five, ten, fifteen or twenty minutes, the plaintiff repeatedly lifted, positioned and operated the jackhammer as was required of him. In order to continue to progress his assigned task, he was required to exert a significant upward pulling force whenever the cutting tip became stuck in the bitumen. This required considerable manual effort on his part. He performed that work with vigour.
5. That process, as described, placed undue strain on the plaintiff's lumbar spine. During the process, at the time of his injury, the plaintiff felt a popping sensation and pain in his lumbar spine. Without doubt, this injury occurred due to the nature and conditions of his employment.

Issue 2 - Duty of care and breach of that duty

1. Indisputably, the defendant, as the plaintiff's employer, owed him a non-delegable duty to take reasonable care, including by the provision of adequate safeguards to avoid exposing the plaintiff to an unnecessary risk of injury in the workplace: Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254; [2000] HCA 61, at [13]; Kondis v State Transport Authority (formerly Victorian Railways Board) (1984) 154 CLR 672; [1984] HCA 61, at [15]; Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18; [1956] HCA 42, at p 25; Smith v Broken Hill Pty Co Ltd (1957) 97 CLR 337; [1957] HCA 34, at pp 342-343.
2. The defendant's duty as an employer was to provide a safe system of work. This included the need to provide adequate and suitable equipment, also taking into account the possibility of employee inadvertence during the course of the work: Czatyrko v Edith Cowan University (2005) 214 ALR 349; [2005] HCA 14, at [12], [14].
3. The plaintiff's particulars of negligence pleaded against the defendant were numerous and extensive. In light of the evidence, the allegations within those particulars may be conveniently summarised as follows: 1. Failure to provide and deploy suitably appropriate machinery and equipment to the task the plaintiff was required to perform; 2. Failure to recognise and to warn the plaintiff that operating the jackhammer for an extended period of time in a fixed posture carried with it a risk of injury; 3. Successive failures to properly assess the task required of the plaintiff; failure to ensure he was appropriately trained relative to the risk posed by the work allocated to him; and failure to ensure by appropriate supervision and instruction, that the jackhammering task would be rotated to include other employees within recognised time safety limits; 4. Failure of supervision to ensure that the use of jackhammers was limited to small discrete sections of the works, and for limited periods of time.
4. The plaintiff also alleges that the particularised factual circumstances constitute a breach of s 19(1)(a) and s 19(3)(a), (c), (f) and (g) of the Work Health and Safety Act 2011 (NSW) ("WHS Act"). In that regard the plaintiff claimed that the defendant failed to ensure his health, safety and welfare at work, and in particular, failed to ensure that the system of work and the working environment was safe and without avoidable risk to health, and related failures to provide necessary information, structure, training, and supervision to ensure the plaintiff's health and safety at work.
5. The question of whether the plaintiff's injury occurred due to the negligence of the defendant must be determined by a prospective common law analysis: Wyong Shire Council v Shirt (1980) 146 CLR 40; [1980] HCA 12, at [14]; Vairy v Wyong Shire Council (2005) 223 CLR 442; [2005] HCA 62, at [124]; s 3B(1)(b) of the Civil Liability Act 2002 (NSW).
6. Taking that approach, in this case, both the factual evidence and the expert evidence satisfactorily indicates it was reasonably foreseeable from the defendant's perspective that repetitive use of a heavy jackhammer for extended periods of time to break up portions of bitumen roadway, posed a significant risk of injury to the plaintiff as the operator of the jackhammer.
7. The magnitude of that risk was great, rather than insignificant, and the probability of the occurrence of injury from adherence to that system of work was high. When those factors are balanced against any difficulty or potential expense to the defendant in taking precautions to alleviate such risk, in this case such steps, as identified by Mr Dohrmann in his expert report, represented a relatively insignificant burden on the defendant.
8. This is because it would have been a relatively insignificant matter for the defendant to assign a suitably qualified supervisor to ensure the plaintiff would not be carrying out heavy risk-laden work for prolonged periods without applying and enforcing appropriate breaks and rotation amongst other employees who were already on site for that very purpose, and at no extra cost to the defendant.
9. It would also have been a relatively simple matter for the defendant to provide more suitable equipment that would have avoided placing injurious forward flexed stress on the spine of the jackhammer operator. The failure to take such simple measures created the risk of injury by requiring the plaintiff to adhere to an inherently unsafe system of work.
10. The report of Mr Dohrmann identified the strenuous nature of the work task that was required of the plaintiff: Exhibit "A", pp 26 - 29.
11. Uncontroversially, Mr Dohrmann identified in extensive terms the employer's statutory obligations and related advisory guidelines aimed at protecting workers from harm through the elimination or minimisation of risks from the use of plant and equipment, which includes jackhammers and other roadwork implements: WHS Act; Exhibit "A", pp 30 - 49.
12. The WorkCover Manual Handling Risk Guide advice to employers for risk control was also identified by Mr Dohrmann. In instances of manual handling, the advice was to redesign manual handling tasks to eliminate or control risks, and to provide appropriate training on safe working techniques: Exhibit "A", p 36.
13. Mr Dohrmann considered the jackhammering task allocated to the plaintiff was strenuous, unsafe, and exposed the plaintiff to the very risk of injury that he in fact suffered: Exhibit "A", p 49, par 7.3 - par 7.4; p 52, par 7.28; p 54, par 8.1.
14. Mr Dohrmann identified a number of simple risk alleviating steps that, on a prospective analysis, were plainly available to the defendant to prevent exposure of the plaintiff to the risks that he faced in his allocated work tasks: Exhibit "A", pp 53 - 54, par 7.31.
15. Essentially, this involved examining the system of work critically, which would have readily identified the risks. Mr Dohrmann also identified the need to provide the plaintiff with appropriate cutting equipment, training, and importantly, appropriately skilled supervision. He also identified the alternative possibility of carrying out the work by configuring the Bobcat to trim the bitumen, rather than requiring the use of a jackhammer, or if that was not possible, then providing the plaintiff with a safer means of lifting the jackhammer when it became stuck in the bitumen between activation pulses.
16. In the circumstances, the plaintiff found himself in a work situation where the employer required him to do the work in a particular and unduly risk-laden way that was highly likely to cause injury.
17. The expert report of Mr Dohrmann identifies the injurious loads that would have been placed on the plaintiff's spine in his allocated task. I accept the submission made on behalf of the plaintiff, that due to the negligence of the defendant as the plaintiff's employer, this was an accident waiting to happen.
18. There is little if any room for doubt that but for that negligence, the plaintiff's back injury would have been an unlikely event: Strong v Woolworths Ltd (2012) 246 CLR 182; [2012] HCA 5, at [18].
19. I therefore find that in the circumstances of the plaintiff's injury, the defendant had breached its duty of care to the plaintiff. It was that breach which was the relevant cause of the plaintiff's back injury. I find that the plaintiff has proven his claim that his injury was caused by the negligence of the defendant.

Issue 3 - Contributory negligence

1. The defendant bears the burden of proving its claim that there was contributory negligence on the part of the plaintiff in the circumstances in which he suffered injury.
2. The defendant alleges contributory negligence by the plaintiff as follows: 1. Failing to take proper care in or about the performance of his work; 2. Failing to take proper care for his own safety; 3. Failing to allow his co-workers to provide assistance; 4. Failing to call for assistance; 5. Failing to follow proper procedures; 6. Failing to follow directions; 7. Failing to properly use the equipment available to the plaintiff in the performance of his work; and 8. Failing to advise the defendant of this risk.
3. The defendant's allegations of contributory negligence relied upon a document entitled Safe Work Method Statement (SWSM), which apparently required 10 minute task rotation on construction jobs where jackhammers were used. That reliance emerged from the content of paragraph 35 of Mr Saliba's statement, which is referred to at paragraphs [45] and [46] above. The difficulty with such reliance is that the defendant's SWSM document had never been served on the plaintiff by the defendant in these proceedings, and the defendant did not seek to tender it in evidence in this case.
4. The evidence in support of the contributory negligence defence was scant to say the least. The cross-examination of the plaintiff did not raise the issue in any material way. Counsel for the defendant did not seek to make any submissions on the topic.
5. The plaintiff was placed in a difficult position where he was allocated a work task in the knowledge that if he did not carry it out as allocated, he risked the defendant terminating his employment. His evidence to that effect was not challenged.
6. The plaintiff was in the situation where he was left to carry out the allocated task without a proper supervisory presence to ensure employee safety. The suggestion that the plaintiff failed to avail himself of rotation or relief from the task by swapping roles with other employees should not be accepted. This is because not only were such offers made in the first few minutes of the plaintiff carrying out the work, in the context of a flawed system of work, but because those offers were not in the form of a mandated supervisory direction to the plaintiff.
7. The plaintiff was adhering to the system of work that the defendant had allocated to him. He was not fatigued in doing so up to the point at which he sustained his injury. He was acting in a manner that would ordinarily be expected of a reasonable employee who had been allocated a task of work in the context of being supplied a single means of carrying out the task, as devised and mandated by his employer, without any alternative safer method being made available to him.
8. Those circumstances, where the plaintiff simply followed the orders of his employer, do not reasonably suggest that there was any contributory negligence on his part.
9. This was not even a case of injury caused by momentary inattention or inadvertence on the plaintiff's part. If the employer's stipulation of a designated time limit on a continued adherence to the allocated task was of relevance to a contributory negligence argument, that is met by the answer that it was the duty of the employer to maintain a supervisory presence to ensure any such time limits were enforced and observed by its employees in circumstances where primary employee attention needed to be focussed on the dangerous task at hand in operating the jackhammer, and not watching and marking the passage of time in terms of elapsed minutes.
10. On the evidence adduced, the pleaded defence of contributory negligence cannot be sustained and it must be rejected.

Issue 4 - Assessment of damages

1. In the paragraphs that follow I set out my assessment of the plaintiff's entitlement to damages. The assessment is restricted to economic damages as required by the Statutory Scheme under which the claim must proceed.

Factual background to damages assessment

1. The plaintiff was in good physical and emotional health before his injury. He was motivated to continue working because he had financial responsibilities to support his family. His work with the defendant company was reasonably well paid and this enabled him to fulfil those responsibilities, which included the need to provide support for his two children, then aged 3 and 4 years.
2. Before the subject injury, in 2015, the plaintiff sustained a neck injury when his motor vehicle missed a turn and collided with a tree. That injury was investigated. An initial CT scan revealed no bony or soft tissue abnormality. A subsequent MRI scan revealed some mild C5/6 and C6/7 disc disease with mild narrowing of the C6/7 foramen.
3. The plaintiff lost no time from his work following that motor vehicle accident. He continued in the employ of the defendant up until the time of injury which is the subject of these proceedings. In that employment he derived regular and substantial income. The plaintiff acknowledged that he worked fluctuating hours with the defendant company. However, he explained this involved shifts of up to 13 - 14 hours on some days. The overall general picture was that he worked long hours.
4. The history of the plaintiff's subject injury was first recorded at Campbelltown Hospital, in the following terms: "Was working today with a jackhammer - upon lifting it, complains of sudden onset of a pop sound at LBP which radiate to L/S LL. Also complains of subjective numbness L/S greater than R/S LL. No head and neck injury. No other injury noted."
5. The initial clinical diagnosis was of an acute prolapse of lumbar vertebrae. A subsequent MRI scan confirmed the existence of L4 to S1 disc pathology which was initially treated with physiotherapy. On 21 March 2017 the plaintiff was referred to Dr B Darwish, a consultant neurosurgeon, who initially recommended conservative treatment, exercise, and cortisone injections.
6. Ultimately, the plaintiff required an L4-S1 laminectomy and discectomy procedure with fusion, and bilateral L4-S1 rhizolysis on 9 August 2017. The delay between 5 June 2017 and 9 August 2017 was due to a second pre-operative opinion being obtained, and some time was taken before the workers' compensation insurer approved payment for the recommended procedures.
7. Subsequently, the plaintiff underwent appropriate rehabilitation. There is no suggestion of any failure on his part to take appropriate mitigatory steps to seek to limit the damage he has incurred from the subject injury.
8. The end result of the plaintiff's injury and subsequent treatment is that he has no capacity to return to any gainful employment in the foreseeable future.
9. Assessments made by the plaintiff's treating neurosurgeon, occupational physician, psychologist, and psychiatrist, support that view.
10. The plaintiff has been left with significant and permanent physical restrictions from his back injury. Those problems have understandably also led to the plaintiff developing serious significant psychological and psychiatric problems which have led to a series of in-patient psychiatric hospital admissions.
11. In addition to those matters the plaintiff now faces the prospect of further lumbar surgery to revise the previous instrumental fusion and the removal of indwelling pedicle screws. He is presently awaiting the approval of the workers' compensation insurer for that procedure to take place. There is no suggestion that procedure will enable him to work.
12. In the absence of any medical evidence from the defendant, it is unnecessary to further analyse the undisputed medical evidence tendered in the plaintiff's case, other than to state the effect of that medical evidence. Since the subject injury, the plaintiff's earning capacity has been destroyed. He remains unfit for any form of employment, including part-time employment. No further work capacity rehabilitation is likely to change that position.
13. The plaintiff had some ambition of obtaining accreditation in Australia for the engineering qualifications he obtained in Russia. He unsuccessfully attempted to do so whilst working for the defendant. At that time his English was less proficient, and his working hours and his work location proved to be impediments to successfully following that course.

Past economic loss

1. The plaintiff claims past economic loss in the amount of $266,315. That amount is calculated at what was submitted to be an average rate of $1087 per week net over 245 weeks between 9 March 2017 and 16 November 2021.
2. The matter at issue with regard to the calculation of the plaintiff's past economic loss is a dispute as to the net rate of weekly loss that should be used for that calculation.
3. That issue arises because there is no evidence of the actual comparable net earnings that the plaintiff would have earned if he was not injured, and because the plaintiff's hours of work had fluctuated in the sense that in the years before the subject injury, the plaintiff had worked different hours in different weeks. That said, the evidence does not suggest the plaintiff worked for less than full time hours.
4. The defendant disputes the plaintiff's submitted rate for calculation on the basis that: the evidence discloses the plaintiff's net weekly earnings at the time of the accident to have been $1007; the Fulton Hogan Industries Pty Limited State Collective Agreement 2015, as relied upon by the plaintiff, established an annual increase of 3 per cent which referred only to the period between 10 December 2015 and 1 November 2017.
5. Accordingly, the defendant argued that, absent updated evidence, including evidence of comparable earnings, the plaintiff's past economic loss should be calculated at the rate of earnings that was applicable to the date of the subject accident. In my view, for the reasons that follow, the defendant's submission to that effect is unreasonable and should not be accepted.
6. First, in the industrial setting, where infrastructure work has continued in the community apparently without significant pause, it would be unrealistic to assume there had been no historical increase in the plaintiff's base rate of earnings over a period of 4 years since the accident.
7. Secondly, I infer from the annual 3 per cent increments from 2015 to 2017, in accordance with an applicable industrial agreement, that there would have been some similar further increments over the 4 years since the accident. A rough estimation of a 3 per cent increment on a base rate of $1007 would have been of the order of $30 less tax. Accordingly, when viewed in that light, the plaintiff's claimed rate of $1087 per week net does not seem unreasonable in the circumstances.
8. Allowing for fluctuating hours of work and uncertain rates of increment since 2017, and absent more precise evidence, I consider that a rounded down base rate of $1050 per week net forms a reasonable basis for the calculation of the plaintiff's past economic loss.
9. The plaintiff has not been capable of engaging in remunerative employment since the subject injury. There is no suggestion that he has failed to take reasonable steps to mitigate his loss. On the contrary, he has submitted to significant spinal surgery in the hope of improving his situation, albeit unsuccessfully.
10. I assess the plaintiff's past economic loss at $1050 per week net over 245 weeks in the sum of $257,250.

Past loss of superannuation

1. I assess the plaintiff's loss of employer funded superannuation benefits at 11 per cent of past loss of earnings of $257,250, namely $28,297.

Fox v Wood damages

1. The tax that has been deducted from the plaintiff's workers' compensation payment is claimable as a head of damage: Fox v Wood (1981) 148 CLR 438; [1981] HCA 41. The amount of those deductions is the subject of agreement at $32,500.

Future economic loss

1. The plaintiff claims damages for future loss of earning capacity in two components. First in the net sum of $684,594 calculated on the basis of a projection of a net loss of $1167 per week over 22 years to age 67, at 5 per cent (x 690.15) less 15 per cent for the impact of potentially adverse vicissitudes, and secondly, in the additional buffer amount of $100,000 to reflect an economic cushion to compensate him for the loss of ability to move into higher paid employment.
2. The first observation to be made about those claims is that the weekly sum of $1167 identified for projection is not precisely reflected in the evidence because of the lack of evidence of actual comparable earnings. For the reasons outlined in paragraph [116] above, for the future, I consider a fair weekly amount for projection to be $1100 per week net at 5 per cent over 22 years (x 690.15) less 15 per cent for vicissitudes, namely $645,290.
3. The second observation to be made about those claims is that the claimed buffer sum of $100,000, whilst not manifestly excessive, is at the high end of the range, and requires a measure of discount on account of imponderable factors. I consider an appropriately discounted buffer to be the amount of $75,000.
4. The defendant takes issue with the appropriateness of an award of an additional buffer sum beyond the projection of a net weekly loss, citing s 318 of the WIM Act, which limits claims to those made in a pre-filing statement unless leave is granted for such a claim to be made.
5. A grant of leave should not be made where substantial prejudice would arise for the defendant and where the material which based the claim was reasonably available at the pre-filing stage: s 318(2) of the WIM Act.
6. The statement of the defendant's employee, Mr Ivkovitch, confirms that it was the plaintiff's expressed pre-injury desire to have his overseas engineering qualifications recognised in Australia with a view to gaining employment as an engineer: Exhibit "A", p 101, par 21.
7. Whilst that evidence is insufficient to base a precise monetary projection or even a precise particularisation of monetary loss, it is a relevant factor to be taken into account in a case where the plaintiff's earning capacity has been destroyed, as has his ability to compete for future employment on the open labour market. Instead, the imponderables involved justify a buffer approach: Penrith City Council v Parks [2004] NSWCA 201, at [5]; State of NSW v Moss [2000] NSWCA 133, (2000) 54 NSWLR 536, at [72]; Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13, at [7], [25] - [27].
8. That approach was not capable of precise particularisation in monetary terms at the pre-filing stage.
9. I see no prejudice to the defendant in taking such an approach in this case. The plaintiff's statement of particulars signalled a claim for economic loss at a rate not less than a labourer or truck driver, and any other employment activities that were previously available to the plaintiff for which he was qualified or experienced: Exhibit "A", p 15, par 4.
10. That formulation mirrored the content of the plaintiff's pre-filing statement. This was a brief but sufficient disclosure to the defendant of the nature and substance of the evidence to be given at a trial. A verbatim transcript of his evidence on that matter was not required: Wilkinson v Perisher Blue Pty Ltd [2012] NSWCA 250, at [219]; McKay v Palmers Removalists & Storage Pty Ltd [2010] NSWCA 83, at [22]-[29].
11. I assess the plaintiff's claim for future loss of earning capacity in the aggregate amount of $720,290.

Future loss of superannuation

1. The claim for future loss of employer funded superannuation benefits should be calculated on the component of $645,290, and not on the additional buffer amount.
2. The submitted rate for calculation of this component of loss is 14.23 per cent. That rate seems reasonable. I therefore assess the claim for future superannuation benefits ($645,290 x 14.23%) at $91,824.

Summary of damages assessment

1. My assessment of the plaintiff's damages is summarised as follows: (a) Past economic loss $257,250 (b) Past loss of superannuation $28,297 (c) Fox v Wood $32,500 (d) Future economic loss $720,290 (e) Future loss of superannuation $91,824 Total $1,130,161

Disposition

1. The plaintiff has established his entitlement to a verdict in his favour in the amount of $1,130,161. The defendant is entitled to an offset credit for workers' compensation to date. That offset is in the agreed amount of $223,499.76. Consequently, the plaintiff should have a judgment in his favour in the amount of $906,661.24, plus the costs that apply in the applicable statutory scheme.

Orders

1. I make the following orders: 1. Verdict for the plaintiff in the assessed sum of $1,130,161; 2. Judgment for the plaintiff in the amount of $906,661.24 after offset of workers' compensation payments made to or on behalf of the plaintiff by the defendant; 3. The exhibits may be returned; 4. Liberty to apply on 7 days' notice if further or other orders are required.

Amendments 30 November 2021 - Paragraphs 122 and 123: 3 per cent changed to 5 per cent; Paragraph 123: 5 per cent deduction changed to 15 per cent. 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: 30 November 2021