Case v Allied Timber Products Pty Ltd; Workers Compensation Nominal Insurer v Allied Timber Products Pty Ltd

District Court of NSW|2013-09-17

Judgment 1This judgment is in respect of two matters. They are closely related and have been heard together with evidence in one being evidence in the other. In matter number 2012/255392 the plaintiff has sued the defendant for personal injury arising out of an injury at work on 12 November 2009. 2In the second matter (2013/234095) the plaintiff is, in effect, the workers compensation insurer for a labour hire company that provided services to the defendant company (which is the same defendant as in the other matter). 3For convenience I will refer to Mr Case (the worker) as the plaintiff and to Allied Timber Products Pty Ltd (the defendant in each case) as the defendant. I will refer to the plaintiff in the 2013 matter as the employer. 4The plaintiff's action arises from an injury he suffered to his back when lifting pieces of timber from a conveyor belt. He alleges a serious and continuing disability giving rise to substantial damages. The heads of damages that are claimed are non-economic loss, past and future economic loss, past and future medical expenses and future commercial care. 5The defendant has denied liability, but alleges contributory negligence in case it is liable. It also challenges the extent and effect of the plaintiff's injuries and relies on Section 151Z of the Workers Compensation Act 1987 (the "WCA") to reduce any damages assessed against it. 6The employer's action is for the return of workers compensation payments and benefits that have been made to, or on behalf of, the plaintiff. Interest is also claimed. 7The action between the plaintiff and the defendant is governed by the Civil Liability Act 2002 (the "CLA").

The injury 16The plaintiff saw an advertisement placed by the employer. He attended an interview. He was interested in forklift driving and also the possibility of working in local mines where it was hoped there would be substantial employment opportunities. 17After a few days the employer placed the plaintiff with the defendant at its premises on the highway near Bathurst. 18The defendant's business is, and was, the operation of a timber mill. The plaintiff said he received no work safety instructions from the employer. When he arrived at the defendant's premises he was told where the evacuation point was located. 19The plaintiff was cross-examined about an induction process, which is described in Exhibit D1. The plaintiff accepted that his signature appeared on the form but said he had not been taken through the steps that had been ticked off. He said the ticks were not his. At first I regarded this evidence with some scepticism but on examining the detail of the form it is clear that the obligation is on the trainer to complete the form. The trainer was not called to contradict the plaintiff. 20The plaintiff was sent to the stacking area where he was directed to sort timber according to its quality. He worked with six to eight other people and learned his duties from what he was told and what he saw. 21There is a sketch, by the plaintiff, of the general layout of the premises at page 137 of Exhibit B. The plaintiff said he saw a representative of the employer at the defendant's premises on one occasion. 22After working for three or four days, on 12 November 2009, the plaintiff arrived at work expecting to continue in the stacking area. After a short period he was directed to the conveyor belt section. On arrival he was told by a medium sized "young bloke" that he should pick out the biggest logs and stand closest to where the logs emerged from the cutting area. The "young bloke" was the leading hand. 23The plaintiff said he had received no instruction, nor was he shown any mechanism to halt the conveyor should that be necessary. A number of photographs were put to the plaintiff (Exhibit D5) apparently depicting the conveyor and certain lanyards said to be stopping devices. The plaintiff said he could not remember these devices and could not say with certainty that the photographs depicted the area in which he had worked. He did not deny that he had worked in the area shown in the photographs but rather said he could not recall. Having regard to the fact that he was injured within half an hour of commencing work in this area it is not surprising that his recollection is uncertain. The plaintiff denied he had been "buddied" with an experienced worker. No 'buddy' was called by the defendant. 24The logs that were on the conveyor belt were of different sizes. The employees' task was to sort out the logs according to their size. The plaintiff said that the larger logs were about 15cm square and perhaps up to 3m to 5m in length. The task was to remove the logs and place them into cages according to their size. The cages were taken away by a forklift when full and then returned to take further logs. 25The plaintiff said the conveyor belt was moving at a fast pace and logs were often stacked on top of each other. 26The plaintiff said he had received no instructions on how to carry out the job and he found the logs passing at a much too quick pace. He could not keep up. On one occasion the conveyor belt was stopped in order for the employees to catch up with their work. The plaintiff did not know how to turn off or restart the conveyer. 27After about 30 minutes the leading hand told the plaintiff to take hold of three large logs. He grabbed all three at once after the leading hand said "you'll be right with them". The plaintiff turned to the left and felt something 'go' in his back. 28It was suggested to the plaintiff that he was told to only lift one log at a time and to ask for help if needed. This was denied by the plaintiff. More importantly, the plaintiff was not challenged on the important evidence that he was required to pick up three logs at one time and that the leading hand had said that he would be "right with them". 29The plaintiff was then directed to go back to the stacking area but he was unable to do any work. He could hardly move. He was then told to go home.

After the injury 30Instead of going home the plaintiff went to the Bathurst Hospital emergency department where he was seen at about 10.35am (Exhibit B, page 292). 31The plaintiff was advised to have bed rest for two days and to take Panadeine Forte for pain. He was given a medical certificate and told to see his general practitioner the next day. 32The plaintiff consulted Dr Soe on 13 November 2009 (Exhibit B, page 307). There then followed a number of visits with Dr Soe until the plaintiff changed doctors to a Dr Thayaparan. The plaintiff found Drs Soe and Thayaparan to be difficult to understand and so on 13 September 2010 he started to see Dr Pulley, an "Australian" doctor who he was able to understand. The plaintiff still sees Dr Pulley. His series of reports can be found in Exhibit E1. 33The plaintiff has seen a number of specialists and also had various radiological investigations. Of particular note is the MRI scan on 29 December 2009 (Exhibit B, page 340). The conclusion is as follows: "There are multi-level small disc protrusions as described. There is no significant neural compression. There is no foraminal or canal stenosis". This finding was later confirmed by a second MRI on 17 February 2011. 34The plaintiff has been on workers compensation payments since the injury. He has been assessed by the workers compensation insurer from time to time. These assessments (for example Exhibit B, page 377) have always concluded that the plaintiff was "totally unfit" for work and have suggested case management to return him to employment. 35The case file was closed on 3 May 2011 (Exhibit C, page 876). It was acknowledged that attempts to return the plaintiff to the work force had been unsuccessful. 36The plaintiff said that he is always in pain both in his back and legs (especially the left) but he does have "good days and bad days". On some bad days the plaintiff said he might stay in bed. He still did a number of domestic activities because "he had to" with four young children. 37Under cross-examination the plaintiff agreed that he had lifted his son from time to time but due to a birth defect in his son's foot. He had not done so for about two years. He also agreed that he had mowed the lawns and hung up washing from time to time. He agreed that he did some cooking. The general tenor of his evidence was that he performed those tasks that were necessary in order to maintain the well being of his family. 38A Workers Compensation Commission medical assessment concluded that the plaintiff had a whole person impairment of 12%. The only relevance of this finding is its effect on any reduction that might flow under Section 151Z of the WCA. None of the parties submitted that the plaintiff should be assessed as having a whole person impairment of more than 15%. 39The plaintiff said that he did not think he could work at the present time. There were things he could do but he would need too many rest breaks. 40In response to cross-examination about his efforts to find alternative employment the plaintiff said that he had been under the supervision of the workers compensation insurer's rehabilitation provider and had acted in accordance with their instructions. As already noted, the provider regards the plaintiff as unemployable. 41On one occasion the plaintiff's back has given way and he struck his shin on the edge of a step (Exhibit B, page 351). 42The plaintiff said he takes Panadeine Forte and Endone on a regular basis, the amount of tablets depending on the severity of his pain. He was aware that Endone could be addictive. 43The plaintiff was shown and cross-examined on DVD footage that had been exposed in May 2010 (Exhibit D2), July 2013 (Exhibit D3) and September 2013 (Exhibit D4). I make the following observations about the surveillance material: (a)The plaintiff was not shown to be doing anything that he had denied being capable of doing. (b)The 'high points' for the defendant were the plaintiff bending over fixing a guide rope on 28 May 2010, the plaintiff walking apparently quite freely with his children on 26 July 2013 and the plaintiff standing for an extended period in a telephone booth on 3 September 2013. (c)The plaintiff's bending did seem to be done freely but not for a long period. He said that he did the things that needed to be done when he had no assistance. Most importantly, this surveillance (together with the rest of the surveillance) were not shown to Dr Searle. It would have been particularly useful for me to have a medical opinion on the plaintiff's actions. A Judge is not permitted to bring any medical knowledge to bear and while I had an impression of the plaintiff having the capacity to bend quite easily I could not say that that observation is inconsistent with his alleged condition. (d)The plaintiff walking freely with his children is to some extent balanced by my general observations of the plaintiff often, through the surveillance, walking either with a limp or some apparent stiffness. (e)The plaintiff standing in the telephone box was interspersed with a number of changes of posture consistent with his evidence. I could see nothing in his actions that contradicted his case. (f)My overall impression of the surveillance was that it did not advance the defendant's case. It did corroborate the plaintiff's assertion of "good days and bad days." 44At this stage I think I should make a general observation about the plaintiff's credit. In general I was impressed with him as a person who was doing his best to be honest. I was concerned about some of his answers in relation to his tax returns and failure to reveal his previous back incidents to medical examiners. 45Any doubts that I did have about the plaintiff's veracity were generally overcome by the evidence of his mother. Mrs Case is now almost 70 years of age, working as an enrolled nurse and obviously devoting a good deal of her time to the assistance of her son and grandchildren. Mrs Case was a very impressive witness. She was forthright, straightforward and spoke without embellishment. She confirmed the dramatic change in the plaintiff following the injury. He went from a very active man, closely involved with his family, to an inactive person incapable of many basic tasks. 46Mrs Case said that she now works four days 'on' followed by four days 'off'. During the latter period she spends at least three days at the plaintiff's home helping out with both indoor and outdoor activities. She even mows the plaintiff's lawn which struck me as rather surprising having regard to her somewhat frail build. She said she does about 20 hours per week on behalf of the plaintiff, although a good deal of this time concerned matters for the benefit of her grandchildren. 47Mrs Case said that on the day of the plaintiff's injury she was babysitting at the family home. The plaintiff arrived and told her that he had hurt himself lifting timber and he had been to hospital. He was clearly in agony. He did not drive for some time afterwards. She observed: "He was another kid I had to look after". 48Mrs Case said that the plaintiff does very little housework now. He does still do the cooking and various other activities from time to time, in general however she performs the housework. Her activities have increased since the plaintiff's wife, Domini, left the household in June this year.

Liability 49The defendant conceded that it owed a duty of care to the plaintiff. It also conceded that this duty of care was analogous to that of an employer to an employee. This is a high duty of care. Notwithstanding these concessions, and defendant's counsel stating he would have little to say about liability, it still remained in issue and needed to be proved by the plaintiff under the CLA. Accordingly, it is still necessary for the plaintiff to establish the requirements of Section 5B of the CLA. In addition, causation must be proved by the plaintiff as required by Sections 5D and 5E. 50In respect of Section 5B(1) a risk of injury in a workplace setting requiring the lifting of logs off a conveyor belt is clearly foreseeable. Such a risk is not insignificant, in particular taking into account the possibility of back injury. A reasonable person in the position of, in effect, an employer, would take precautions against the risk of injury. 51Turning to Section 5B(2), once again it is well known that back injuries occur when lifting heavy weights, especially when twisting, so that there is a significant possibility that harm will occur if care is not taken. A back injury can be a serious consequence affecting a worker. The burden of taking precautions against the risk of harm is not onerous. In this case it is simply a matter of an appropriate system of work. I do not think Section 5B(2)(d) is relevant here. 52The plaintiff was new to the job. The various forms and procedures designed to ensure his safe induction had not occurred. He had only been working on the conveyor belt for about half an hour. He had received little or no instruction. The safety lanyard was of no assistance. Its potential use was overtaken by the instruction given by the more senior employee to take hold of the three logs and place them in the cage. 53The scene, I am satisfied, was at least busy. The conveyor belt was moving quickly, if only to the plaintiff's untrained perception. He was told to do something that was dangerous and beyond his capacity. As a result he lifted the three logs and hurt his back when twisting around. 54Mr Watson, the defendant's manager, gave very clear and frank evidence that the leading hand should not have required the plaintiff to lift three logs. On his evidence they each potentially weighed 25kg. There was no challenge to the plaintiff's evidence about the instruction. The leading hand was not called. Mr Watson said he did not know who it might have been at the time. I understood him to suggest it might have been any one of three persons. There was no evidence of any efforts to identify the leading hand from the 3 candidates. I think liability is clear and I find accordingly. My finding is based on the failure to provide a safe work place, proper instruction and the issuing of an order to act in a dangerous manner. 55I should note that the plaintiff relied on an expert report prepared by Mr Cockbain, a widely qualified risk management specialist who prepared a detailed assessment of failures by the defendant. I did not find the report of great assistance, preferring instead to rely on a commonsense approach, which dictated the findings I have made above.

Causation 56The test for causation is a 'but for' test. In my view but for the defective system of work the plaintiff would not have lifted an excess weight and been required to twist while doing so. It was these actions that caused his injury. I think causation is easily established.

Contributory negligence 57I do not think there is any contributory negligence. I am not satisfied that the plaintiff had access to the lanyard and even if he had that it would have been of any practical use. In addition, the plaintiff was simply obeying instructions and doing his job.

Section 151Z 58The first matter to be decided is whether or not there was any negligence on the part of the employer and, if there was, the percentage to which it contributed to the plaintiff's injury. I think the employer was negligent. The employer had sent the plaintiff to work in a place where the systems were clearly inappropriate. The employer would have been aware of this. It is known that a representative of the employer was present on the premises on one of the days that the plaintiff was working there and generally attended about fortnightly. Where the employment contemplated is one of physical labour the employer should ensure a safe system of work prevails. This was clearly not done. 59In addition the employer was obliged under the agreement described by Mr Watson to carry out a safety induction on behalf of the defendant. Once completed, the form at Exhibit D7, page 113, was to be sent to the defendant. This did not occur. It is also to be noted, against the defendant, that the defendant was content to allow the plaintiff to continue working despite the absence of the form. The system in place was that of the defendant and it should bear by far the majority of the blame. A number of the defendant's normal processes were simply not applied to the plaintiff. These included: (a)All workers were required to start in the conveyer section. The plaintiff's unchallenged evidence was that he started in the stacking section, probably the Dry Mill referred to by Mr Watson. (b)The document at Exhibit D7 Tab 25 was supposed to be given to the plaintiff, and after signing, placed in his file. This did not occur. 60The plaintiff submitted that there was no negligence on the employer's part because the act of negligence was the 'rogue' instruction from the leading hand. This was entirely out of the control of the employer. I agree that this was the primary act of negligence; however it was not alone. As I stated above there were overall failures in the system. The employer provided a number of workers to the defendant. It had a duty to ensure they worked in safe circumstances. In my view the employer's liability should be assessed at 20%.

Medical opinion 61The majority of the medical opinion favours the plaintiff. I do not think it all requires description here. I do think it necessary to state some matters of primary focus. The defendant had the plaintiff examined by Dr Anthony Lowy, an occupational physician, in April this year. No report has been served from this doctor. I infer that the contents of the report would not have assisted the defendant's case. The defendant also had the plaintiff examined by a Dr Smith, an orthopaedic surgeon. 62Dr Searle, an orthopaedic surgeon, provided the plaintiff's solicitors with two reports. The first is dated 4 September 2010 (Exhibit B, page 447). The second is dated 30 August 2013 (Exhibit C, page 452). Dr Searle also gave oral evidence. 63In his first report Dr Searle records that he was told by the plaintiff that he had no history "of any symptoms or injury relevant" to his lower back. Accordingly, the doctor thought the protrusion of the L5/S1 disc was due to the injury in November 2009. When Dr Searle reviewed the plaintiff in August of this year he was also provided with the documents from Orange Base Hospital in 2004 and from Blayney Hospital in 2007 (Exhibit B, pages 294-300). Armed with the further information Dr Searle stated in his second report: "I note that I previously suggested his injury occurred at work on 5/11/09, but the documents indicate there were at least two previous back injuries at work. The ongoing symptoms from the aggravation of his L5/S1 disc problem on 5/11/09 are persistent and permanent and cause a severe degree of disability." 64Dr Searle therefore amended his opinion to change the L5/S1 disc injury from a product of the 2009 incident to an aggravation of an earlier condition caused by the two prior back incidents. 65When Dr Searle gave evidence he seemed to alter his, now amended, position by stating that the two earlier incidents were probably no more than muscle strains. The only extra information that he had in the witness box was the assumed history that the earlier incidents were shortlived and the plaintiff soon returned to work. 66When I pointed out the inconsistency between his oral evidence and his second report, Dr Searle said that it was very difficult to reach any firm conclusion and that the possibilities included there being both a fresh injury and an aggravation in 2009. It was central, I think, to the doctor's opinion in the witness box that he was asked to assume that the effects of the two earlier injuries were very limited. I do not think this accurately reflects the whole of the evidence. When the plaintiff attended the Orange Base Hospital it was already some six days following the injury. Although scans were not ordered he was provided with painkillers, directed not to lift and to consider consulting a physiotherapist. In addition, the triage nurse noted that his "back has been progressively getting worse ... some pain down legs and around into sides". 67When the plaintiff went to the Blayney Hospital in 2007 he gave a history of spinal injury including a disc prolapse. In addition, the plaintiff said that he had some episodes of back spasm, although infrequent and only after sitting for some hours on a forklift. 68Dr Searle was asked to comment on the report of Dr Smith in which Dr Smith says the results of the MRI scans are what one would normally expect to see in a person of the plaintiff's age. Dr Searle makes no mention of any of the observations in the MRI scans besides the problem at L5/S1. I asked him whether this meant that the other observations in the scans were of no significance. He said he concentrated on L5/S1 because that was his best estimate of the origin of the plaintiff's problems. On one view the doctor's disregarding of the other signs tends to corroborate Dr Smith's opinion that the various signs in the plaintiff's back are 'normal' for a person of his age. On the opposite view Dr Searle's emphasis of L5/S1 singles that area from the other signs suggesting that it stands out as an area of traumatic injury. 69I will return to Dr Smith's report below but state now that I generally reject it. I think Dr Searle's second report is more likely to be correct than his oral evidence when one factors in the fuller history given by the plaintiff and contained in the earlier notes. In my view, the preponderance of the evidence suggests that the incident on 12 November 2009 involved an aggravation of an already existing condition and that that aggravation has persisted to the present time and is the cause of the plaintiff's continuing disability. 70Dr Searle's opinion was that the plaintiff was effectively unemployable. He was not challenged on this opinion, nor was he shown the DVD which the defendant submits indicates the plaintiff has a greater capacity than he admits. 71Dr Smith's report (Exhibit D1, page1) is generally unimpressive. It has the air of advocacy about it, emphasised by strong statements of fact with little or no justification. The plaintiff said that when he saw Dr Smith the appointment lasted five to 10 minutes and there was no physical examination. 72Presumably as a result of the plaintiff's allegations, Dr Smith was called to give oral evidence. Dr Smith said he did examine the plaintiff and the entire consultation would have lasted in the order of 30 minutes. I could not reach a conclusion that there was no examination carried out by the doctor; however I can well understand a perception by the plaintiff that the examination was cursory. 73I was troubled by a number of aspects of Dr Smith's evidence and report. These include the following: (a)The report is replete with examples of stark conclusions with no foundation. For example: (i)On page 9 he says, "I would have considered that aggravation would have been short lived. I consider he has long since recovered from that". The doctor gives no basis for stating the aggravation was short lived. Also on page 9 the doctor says, "he is manufacturing physical signs". He carries on, "he is much better than he makes out he is". The justification for this, which could not be valid, is that his spine would have been the same in 2007 and 2008. (ii)On page 10 the doctor says, "there is no reason why he is not fit for work in my opinion". He does not say why he forms this opinion. He then goes on to quote from a paper about the prevalence of degenerative disease. I excluded this material from the report because it does not appropriately give the reference or reasoning behind it. To simply say, "Powell et al published a paper" is not enough to enable the plaintiff to deal with the conclusions then set out or meet the requirements of an expert report. (iii)On page 11 Dr Smith says the plaintiff has no requirement for domestic or handyman assistance. He continues "there never has been and there will not be as a result of this accident". Again, there is no proper reasoning for this conclusion. (b)In relation to the domestic assistance, I asked the doctor why he would not have even given the plaintiff the benefit of a week or two while in pain after the injury of not being able to do any domestic activity. The doctor, to my observation, struggled to give an answer, ultimately coming up with an unsatisfactory "At the end of the examination that's what I thought would be appropriate to say. I mean, I must admit I didn't see it then, but I can't imagine it would cause any significant requirement for domestic assistance." (T 315.28) (c)Dr Smith agreed that the observations made by Dr Porges (Exhibit B, page 443) were indicative of objective signs. Dr Smith's view does not countenance such a result; however, he would make no concession based on such a result. (d)Dr Smith said that it was his practice that if he did not think that a document that he had been asked to consider was relevant to his opinion, then he would not mention it. It was for this reason that he had not made any mention of Dr Searle's report of 2010 when providing his own opinion. I fully understand that when a doctor is presented with a number of documents he might not mention all of them in his own report. However I find it unusual that Dr Smith would have made no mention of Dr Searle's opinion, which was diametrically opposed to his own. Dr Searle, like Dr Smith, is an orthopaedic surgeon and one would have expected there to have been some consideration put forward as to why Dr Searle was so obviously wrong. (e)Dr Smith agreed that on the same day that he wrote his report he also wrote a separate letter to the defendant's solicitors suggesting surveillance of the plaintiff. It was put to him that this was inconsistent with his undertaking to provide a report as an independent expert. He said that the suggestion was the same as a suggestion to, for example, obtain missing medical reports or results of scans in order to allow him to give a full opinion. In my view, such a request is quite different to a suggestion that surveillance be conducted. Putting aside whether or not it is inconsistent with the code of conduct, it is consistent with the overall tenor of the report, namely the assumption of an attitude of advocacy for the benefit of the defendant. 74Because of the unfavourable impression I formed of Dr Smith's evidence and his report, as set out above, and the almost solitary position held by him, I reject his opinions. This position is enforced by my general acceptance of the plaintiff and the mass of medical opinion in his favour. I also note the implicit rejection of Dr Smith's views by the defendant. The figures put forward by the defendant on quantum are entirely inconsistent with the doctor's views. For example the defendant suggested non-economic loss of 28% of a most extreme case, economic loss to date, and a substantial buffer ($150,000) for the future. On Dr Smith's views non-economic loss would be less than 15%, past economic loss of a short duration and there would be no future loss at all.

Quantum: Plaintiff v defendant 75Ultimately the parties provided an assessment of non-economic loss that reflected the appropriate range that I might apply. The plaintiff submitted 33%. The defendant submitted 28%. The defendant's figure represents an appreciation of a seriously injured person. This is consistent with my finding of the plaintiff. He suffered a significant aggravation to pre-existing problems in his lumbar spine, which has affected him to date and is likely to do so well into the future. The plaintiff's everyday life, from looking after his family to carrying out his employment, has been markedly affected. 76Although the difference between the parties is reflected in a significant monetary gap in reality there is little material upon which to distinguish the competing percentages. On the basis that they represent the upper and lower limit of the appropriate range I think non-economic loss should be assessed at 30%. This equates to a monetary value of $123,000. 77Out of pocket expenses were agreed at $34,178. This is yet another indication of the implicit rejection by the defendant of the opinion of Dr Smith. 78For future medical expenses the figure put forward by the plaintiff was $35,000. The defendant suggested $18,198.58. The difference between the parties was that the defendant did not allow for physiotherapy and hydrotherapy expenses. The evidence was that the plaintiff no longer has physiotherapy or hydrotherapy because these modalities of treatment have not assisted him. One must recognise however that with likely exacerbations in the future a degree of physiotherapy might be temporarily necessary. I think I should allow the defendant's figure but add a small amount to cater for this possibility. I allow a total of $20,000. 79Both parties allowed for economic loss from the date of accident to date. The difference was in the rate that they applied. The plaintiff said that $600 net per week should be used because this took into account the plaintiff's gross wage at the date of injury of $672 per week together with annual increases that would have occurred to the present time. The total claimed, over 200 weeks, was $120,000. 80The defendant's approach was to average the plaintiff's earnings for the three years prior to the injury, as disclosed by his tax returns, which reveal a net income of $333.46 per week. Total economic loss was therefore $66,358.54. 81There was evidence from the plaintiff that some of his earnings in the past were by way of 'cash in hand' and therefore not included in his tax returns. This might explain, for example, the very low earnings in 2007. The plaintiff did not however give any indication of the amount of cash earnings that he might have received. 82I also take into account the plaintiff's evidence that he worked for 70% of any given year and was unemployed for the balance. The approach that I will take is essentially a compromise between the parties' positions taking into account that the plaintiff was unlikely to have worked for the whole period since the accident but that there may have been a degree of cash income which would have increased his likely average earnings beyond $333. On this basis, with an admitted degree of speculation, I assess past economic loss at $450 per week for 200 weeks. This produces a figure of $90,000. 83Past lost superannuation benefits at 11% are $9,900. Fox v Wood damages were agreed at $11,893. 84For future economic loss the plaintiff put forward two scenarios. On the first a net figure of $650 per week was applied and then reduced by 20% for vicissitudes to arrive at $420,992. Under the second scenario the plaintiff took the approximate rate of pay of a labourer of $850 gross per week and reduced that by 70% to arrive at $550 net per week. Vicissitudes of 15% were then deducted giving a final figure of $378,488, but rounded down to $375,000. 85The defendant submitted that this was a case for a buffer because the future was not predictable on a weekly amount basis. The defendant referred to the plaintiff's haphazard work history, his previous back injuries and his assorted other injuries in support of its contention. It suggested a buffer of $150,000. 86The first step for me is to comply with the provisions of Section 13 of the CLA. In my view, but for the accident, the plaintiff would have continued to work as a labourer for the balance of his working life but that this future would have been compromised by his already degenerating spine, his habit of not working for the whole of a year and the increasing difficulty, as he aged, of being able to carry out the heavy work generally involved in labouring. These factors would have produced a higher than normal level of vicissitudes which I assess at 25%. 87I think the future should be measured at a slightly higher rate than the past, namely $500 per week, to reflect a likely increase in his wages but also to factor in the wages not being paid for the full year. I do think the rate should carry on to age 67 essentially reflecting a very limited capacity to work but also taking into account that this lack of capacity must be productive of economic loss. 88On the 5% tables for 29 years the multiplier is 809.6. The calculation is therefore $500 x 809.6 less 25% = $303,600. 89The parties agreed that if I assessed future economic loss on a weekly basis then the appropriate percentage for the measurement of lost future superannuation benefits should be 14.24%. On this basis the lost benefits are $43,232.64. 90The defendant said that future domestic care should be limited to the cost of lawn mowing and allowed $12,658.63. The plaintiff claimed four hours per week of commercial care at $35 per hour. The defendant accepted the rate of $35. 91The first point to be made is that it would be unreasonable, and in fact unlikely, to expect the plaintiff's mother to continue providing domestic services. As I have already observed she is almost 70 years of age. On the other hand it is important to distinguish between the services she provides to the plaintiff and those she provides to her grandchildren. There is no claim under Section 15B of the CLA. 92Dr Searle suggested four hours per week of domestic assistance. The domestic assistance provided by a commercial carer is likely to be more efficient than that performed by the plaintiff or his mother. I think the plaintiff does have a need for more than gardening assistance. The defendant said that he did many of the tasks and therefore there should be no allowance. In my view the fact that he does some tasks is not the appropriate test. What is necessary to ascertain is whether the injury has caused a reasonable need for the assistance. The fact that the plaintiff can manage some tasks does not relieve the defendant of its obligation if those tasks are performed in pain and for the necessity of maintaining a home inhabited by the plaintiff and three young children. 93Taking into account the factors I have mentioned above I think the plaintiff should receive three hours per week of commercial care for 40 years. I have not taken the assessment through to his life expectancy of 47 years because I think his already degenerating spine would have probably led him to require domestic assistance in any event in the latter years of his life. 94On the 5% tables the multiplier for 40 years is 917.5. The calculation is therefore 917.5 x 35 x 3 = $96,337.50. 95A summary of the damages I have allowed is as follows: Non-economic loss $123,000.00 Past out of pocket expenses $34,178.00 Future out of pocket expenses $20,000.00 Past economic loss $90,000.00 Past superannuation benefits $9,900.00 Fox v Wood damages $11,893.00 Future economic loss $303,600.00 Future lost superannuation benefits $43,232.64 Future domestic care $96,337.50 Total $732,141.14

96The total of the damages I have assessed must now be reduced by 20% to reflect my findings in respect of the Section 151Z deduction. This produces a result of $585,712.92.

Quantum: Employer v defendant 97Before proceeding with quantum I should note here that the defendant conceded that if I found for the plaintiff then liability in favour of the employer, against the defendant, would follow. 98The parties agreed that the total of workers compensation payments made was $200,630.48 and that interest on this amount was $33,658.52. The defendant submitted that these figures, and costs, should be reduced by 20% in line with my section 151Z deduction. A secondary submission was that, as a matter of discretion, the deduction should be applied to the interest calculation and also to the costs. 99The basis for the defendant's submission is to be found in paragraph 157 of the decision of the NSW Court of Appeal in J Blackwood & Son v Skilled Engineering [2008] NSWCA 142. Campbell JA said: "If an employer has not committed a tort that has injured the worker, but has paid compensation, the effect of section 151Z(1)(d) is that the employer can recover back from the indemnifier the full amount of compensation paid, up to the limit of the amount of damages that the indemnifier is liable to pay to the employer. However, if the employer is at fault, it is not entitled to indemnity for the full amount of the compensation paid, up to that limit. Rather, the employer is required to bear the compensation, up to the proportion of the compensation that equals the degree of fault of the employer, and only after the employer has borne the amount of compensation to that extent does it have a right of indemnity from some other wrongdoer liable to pay damages for the same injury." 100On first reading I thought the above paragraph was applicable here because of my finding of a degree of fault on the part of the employer. The employer submitted however that the example given in paragraph 158 indicates that the principle only applies where there has been, actually or potentially, an assessment of damages against the employer. In this case there could not be such an assessment because the plaintiff did not meet the threshold for work injury damages set out in Section 151H of the WCA. 101This interpretation I think is consistent with the decision of the NSW Court of Appeal in Izzard v Dunbier Marine Products (NSW) Pty Ltd [2012] NSWCA 132 in particular at paragraph 30, where MacFarlan JA said: "However, the damages payable by the employer would be assessed as work injury damages, in accordance with Pt 5, Div 3 of the Workers Compensation Act. Under that statutory regime, no damages may be awarded unless the injury resulted in "a degree of permanent impairment of the injured worker that is at least 15%": s 151H(1). If the plaintiff cannot satisfy that threshold, the damages recoverable from the employer would have been nil. In such a case, for the purposes of s 151Z(2)(d), the amount of the contribution that the appellants would be entitled to recover from the employer, determined as if the whole of the damages were assessed in accordance with Pt 5, Div 3, would be nil, because no damages would be recoverable under those provisions. It follows that, for the purposes of s 151Z(2)(c), the amount of the contribution which the appellants would be able to recover, but for Pt 5, from the employer would exceed the amount actually recoverable by the full amount of $236,000. Accordingly, the damages recoverable by the plaintiff from the appellants would necessarily be reduced by that amount." 102In my view the employer's submission is correct. The deduction can only apply where there has been an assessment of work injury damages under the WCA. As this has not occurred, and could not occur here, the defendant's primary submission must be rejected. 103Turning now to the application for the exercise of my discretion I think there is some merit in the submission. I do not however think there should be any reduction in costs as the employer succeeded against the defendant in circumstances where there had been no concession made of any amount owing to the defendant. 104In respect of interest however I do think I should exercise my discretion to reduce the interest by 20% because I have found that the employer was partially responsible (in the same degree) and the defendant is entitled to have this fact reflected, if only, in the interest for which it is liable. Accordingly I reduce the interest component by 20% down to $26,926.81. 105The damages assessed against the defendant are therefore as follows: Agreed Indemnity sum $200,630.48 Agreed interest less 20% $26,926.81 Total $227,557.29

Final orders 106In Case v Allied Timber Products Pty Ltd (2012/00255392): (a)Judgment for the plaintiff for $585,712.92. (b)The defendant is to pay the plaintiff's costs of the proceedings, those costs to be assessed on an indemnity basis from 2 August 2013. 107In Workers Compensation Nominal Insurer v Allied Timber Products Pty Ltd (2013/00234095): (a)Judgment for the plaintiff for $227,557.29. (b)The defendant is to pay the plaintiff's costs of the proceedings. 108(An application by the plaintiff for interest on costs under Section 101(4) of the Civil Procedure Act 2005 was refused. Noted that the plaintiff indicated that a further application for interest on costs may be made in the future.)

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 September 2013

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Judgment (14 paragraphs)

Cases Cited (2)