Castillo v Presmist Formwork Contractors Pty Ltd - [2019] NSWDC 6 - NSWDC 2018 case summary — Zoe

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Castillo v Presmist Formwork Contractors Pty Ltd

[2019] NSWDC 6

District Court of NSW|2018-11-02

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At a glance

Source facts

Court

District Court of NSW

Decision date

2018-11-02

Catchwords

(2015) 257 CLR 1 Azar v Kathirgamalingan [2012] NSWCA 429
(1990) 169 CLR 638 Mt Isa Mines Ltd v Pusey [1970] HCA 60
(1970) 125 CLR 383 Penrith City Council v Parks [2004] NSWCA 201 Purkess v Crittenden [1965] HCA 34

Source

Original judgment source is linked above.

Catchwords

(2015) 257 CLR 1 Azar v Kathirgamalingan [2012] NSWCA 429(1990) 169 CLR 638 Mt Isa Mines Ltd v Pusey [1970] HCA 60(1970) 125 CLR 383 Penrith City Council v Parks [2004] NSWCA 201 Purkess v Crittenden [1965] HCA 34

Judgment (55 paragraphs)

[1]

Table of Contents Factual background and nature of the case [1] - [4] Issues [5] Evidence overview [6] - [7] Facts emerging from oral evidence [8] - [31] The plaintiff [9] - [13] Mr Guiseppe Angiletta [14] - [19] Mr Iara [20] - [24] Mr Cerqueira [25] Mr Salvatore Angiletta [26] - [30] Dr Conrad [31] Findings on disputed matters of fact [32] - [76] (1) Plaintiff's background circumstances [33] (2) Plaintiff's pre-accident medical records [34] - [36] (3) Accident circumstances [37] - [41] (4) Injuries and initial treatment [42] - [48] (5) Subsequent medical and allied reviews [49] (6) Dr Conrad's oral evidence [50] - [59] (7) Resolution of issues raised on the medical evidence [60] - [63] (8) Disabilities that remain [64] - [65] (9) Work effects [66] - [70] (10) Domestic effects [71] (11) Mitigation [72] (12) Plaintiff's most likely pre-accident circumstances [73] - [76] Issue 1 - Risk of harm and duty of care [77] - [78] Issue 2 - Duty of care and breach [79] - [95] Requirements of s 5B(1) of the CL Act [84] - [87] Requirements of s 5B(2) of the CL Act [88] - [92] Other principles to be considered: s 5C of the CL Act [93] - [94] Conclusions as to breach of duty of care and negligence [95] Issue 3 - Contributory negligence [96] - [103] Issue 4 - Causation [104] - [106] Issue 5 - Consideration of s 151Z(2) of the WC Act [107] - [113] Issue 6 - Assessment of damages [114] - [141] Actuarial factors [115] Non-economic loss [116] - [119] Past economic loss [120] - [126] Fox v Wood [127] Future economic loss [128] - [131] Past domestic assistance [132] Future domestic assistance [133] - [137] Future treatment expenses [138] - [139] Past out-of-pocket expenses [140] Summary of damages assessment [141] Disposition [142] Costs [143] Orders [144]

[6]

The plaintiff

The plaintiff left school at Year 10 level when he was aged 16 years. Due to political turmoil in Chile, he moved to Peru where he worked as a welder and completed a motor mechanics course. After arrival in Australia at age 30, he worked in a furniture store for three months before finding work in the construction industry. He has worked for various employers in that industry. At the time of his injury he was carrying out casual work on the defendant's construction site which is the subject of this claim.
The plaintiff has limited fluency in the English language and gave most of his evidence through a Spanish interpreter. He has four children. His three sons are independent adults. He has a dependent teenage daughter living with his ex-wife in Chile. At the time of the subject accident, he was providing his daughter with financial support from his earnings in Australia. A key motivational factor for him continuing to work was so that he could remit some of his earnings to support his daughter.
In the years leading to the subject injury, the plaintiff had always engaged in relatively heavy work. It is therefore understandable that over time, he incurred a number of work-related injuries. These included a dislocated shoulder in 1983, a left knee injury in 1995, a lumbar spine injury also in 1995, which resulted in a lumbar fusion, a right knee injury and a right shoulder injury in 2004, a work-related neck injury in 2006, and a neck injury in a motor vehicle accident in 2006. His neck injury resulted in discectomy, rhizolysis and cervical fusion surgery in 2011: Exhibit "A".
Between 2000 and 2003, the plaintiff had moved back to live in Chile. On his return to Australia in 2003 he returned to work in the formwork and construction industry. In March 2015, the plaintiff commenced casual work on the defendant's construction site. He was working on the site in question on the day of the subject accident. Despite his history of previous injury, before the subject accident the plaintiff remained sufficiently fit to enable him to continue to work as a formworker on construction sites.
Although in his evidence the plaintiff was at times forthright and anxious to explain matters, I considered him to be a truthful witness whose evidence could be relied upon in determining key matters of fact in dispute.

[14]

(2) Plaintiff's pre-accident medical records

The defendant tendered selected parts of the plaintiff's pre-accident medical records which, when arranged in chronological order, revealed the following matters: 1. On 14 May 1995, the plaintiff's general practitioner, Dr Carlos Robalino, referred the plaintiff to Dr L Rozario for treatment of a back injury that occurred two months earlier, and for treatment of a left knee injury consisting of a damaged meniscus that occurred in February 1995. At the time it was noted that the plaintiff had been receiving physiotherapy for his left knee injury: Exhibit "1", Tab 3, p 49; 2. On 1 June 1995, at the referral of Dr Robalino, the plaintiff was examined by Dr Jayker Davé, an orthopaedic surgeon, for assessment and treatment of a torn medial meniscus, for which arthroscopic repair was recommended: Exhibit "1", Tab 4, p 50; 3. On 1 September 1995, Dr Davé issued a progress report concerning the plaintiff's left knee, noting the cause of the plaintiff's chronic pain in the knee was unclear. He certified the plaintiff was unfit for activity involving squatting or heavy lifting, but was fit for selected duties: Exhibit "1", Tab 5, p 51; 4. On 18 September 1995, at the request of Mr Stephen Hodges, solicitor, Dr Davé issued a progress report on the plaintiff's left knee condition. He noted that injury had resulted from a twisting movement at work, and was treated by meniscectomy, but that the plaintiff remained affected by chronic left knee pain. Dr Davé predicted an eventual fitness to return to labouring work: Exhibit "1", Tab 6, pp 52 - 54; 5. On 9 July 1996, the plaintiff underwent a bone scan study for bilateral knee pain, noting that the left was worse than the right. Moderate synovitis/arthritis was noted to be affecting the left knee, suggestive of degenerative changes: Exhibit "1", Tab 7, p 55; 6. On 4 November 1997, at the request of Dr Davé, the plaintiff underwent an MRI scan of his left knee, which identified a focal cartilaginous defect in the articular surface of the patellar groove in the medial aspect, consistent with Grade III - IV chondral damage, with a focal deficit in the central portion of the medial meniscus, and with an associated peripheral oblique tear: Exhibit "1", Tab 8, pp 56 - 57; 7. On 20 November 1997, Dr Davé commented on the MRI scan of the plaintiff's left knee and suggested an arthroscopic examination of that knee: Exhibit "1", Tab 9, p 58; 8. On 6 May 1998, Dr Robalino issued a medical report stating the plaintiff suffers from chronic back pain, with pain to his legs and pain in his left knee as a result of a work injury, rendering him "totally and permanently unfit to work for life", and needing "further surgical treatment of his back and knee", with physiotherapy and frequent painkilling medication: Exhibit "1", Tab 10, p 59; 9. On 13 July 2004, Dr Robalino wrote a referral to a Dr O'Neal seeking a review of the plaintiff's lower back pain, noting also that the plaintiff had developed diabetes, gastric ulcers and intense knee pains related to his work and degenerative conditions: Exhibit "1", Tab 11, p 60; 10. On 13 July 2004, Dr Robalino also referred the plaintiff to Dr Davé for complaints of an exacerbation of his knee pains: Exhibit 1, Tab 11, p 61; 11. On 3 December 2012, at the request of Firths Lawyers, the plaintiff was examined by Dr Elias Mataloni, an occupational physician, for a medico-legal assessment of injuries he sustained on 17 June 1995 (back injury), and 26 August 2004 (right shoulder, right knee). Dr Mataloni referred to his earlier reports of 11 April 2011 and 14 November 2011, which were not in evidence in these proceedings: Exhibit "1", Tab 12, pp 62 - 70.
The defendant tendered two sets of the plaintiff's medical records kept by treating general practitioners. The first was from the Fairfield Chase Medical Centre: Exhibit "1", Tab 13, pp 71 - 135. The defendant only referred to two entries in those records. First, namely an entry on 19 September 2014 citing the plaintiff being adamant about his inability to work (at p 119). Secondly, a reference to the plaintiff's court appearance on 16 June 2014 relating to an unfitness for any work due to chronic pain (at p 122), where the plaintiff's general practitioner had noted on an informal assessment, that the plaintiff was walking and sitting, and that on observation, he "rises brisk". The second set of medical records was obtained from the Castlecrag Medical Practice: Exhibit "1", Tab 14, pp 136 - 146. No detailed reference was made to those records in the course of cross-examination of the plaintiff, or submissions.
The impressive fact to emerge from the above pre-accident medical history is that the plaintiff was working at the time of the subject accident, despite that significant previous injury history.

[15]

(3) Accident circumstances

Before the plaintiff commenced employment at the defendant's site he had undergone a site induction: T15.44. His work on the day in question involved making and placing plywood formwork boxes in preparation for a revised concrete pour to repair a defect from a previous pour. His work tasks on the site were the subject of directions issued to him by Mr Guiseppe Angiletta, also known as Joe: T16.34.
On the day of the accident Mr G Angiletta had directed the plaintiff to do some remedial formwork to rectify a concreting defect that had been discovered when formwork from a previous pour was being stripped: T17.19. He was directed to undertake that work in the vicinity of an intended elevator shaft on the ground floor of the site: T18.1 - T18.8. I accept that Mr G Angiletta had told the plaintiff to create some remedial formwork in preparation for an anticipated remedial concrete pour. The work was conducted in a hurried fashion on that site, according to the directions of Mr G Angiletta: T52.23.
The plaintiff was required to do that work without manual or mechanical assistance. He was required to pick up large sheets of plywood which had become soaked with water due to exposure to rainwater, which increased its weight. The estimate of the wet weight of the plywood sheeting varied from 20 to 40kgs: T63.22; T87.10; T87.31.
At the time of the accident, whilst standing on a scaffolding plank in a confined area, he lifted the plywood sheet in question to his chest, but in doing so, when it made contact with his chest, he lost his balance. He then slipped and fell to his left, hitting his head, his backside, his left leg and left knee, whilst he was still inside the elevator shaft enclosure: T18.35 - T18.46.
At that time, the plaintiff had been standing in a precarious position on a plank located on some metal scaffolding that was between about a metre to two metres above the ground, and otherwise described as being at floor level: T19.12. He was working in poor light conditions. He had asked Mr G Angiletta to bring him some lighting which did not immediately occur: T19.22. He was required to undertake those tasks without other manual or mechanical assistance: T19.45; T53.11. There was other evidence of a shortage of manpower on the site at that time.

[16]

(4) Injuries and initial treatment

At the time of the described incident, the plaintiff said that he felt a lot of pain and swelling in his left leg and knee: T19.49. No-one witnessed the incident so there was a delay before someone came to his assistance: T20.28.
The defendant claimed that the plaintiff had not been working on the site on the day in question, and challenged the plaintiff's version of the events. I do not accept that challenge. The documents, when read as a whole, do not support that challenge. I accept the plaintiff's evidence as to the circumstances of his injury and the tasks he had been performing when he was injured.
The plaintiff said, somewhat emotively, that he could have died at that time because no-one had come to his assistance: T20.27. He said that eventually he managed to go to the first aid shed at the site, but no-one was there. He obtained some painkilling medication and kept on working until about 1.00pm in the afternoon that day: T20.32. He said that he did so, in pain, because he did not want to lose his job: T21.26.
On the day in question the plaintiff tried to report the accident to someone in charge but the person who normally took such reports was not on site because he was apparently at an off-site meeting: T20.38 - T20.43. Instead, he spoke to a representative of the head contractor who, in the plaintiff's opinion, did not pay too much attention to the plaintiff's report: T21.5. However, the plaintiff said that person did take some notes of that discussion: T22.37 - T22.39.
Later that day, the plaintiff said that when Mr G Angiletta saw him limping on the site, Mr G Angiletta dismissed him and told him to take his tools and leave the site: T21.35. The plaintiff then collected his tools, and left the site and did not return: T22.6.
The plaintiff later saw his general practitioner: T22.47. He was then referred to Dr Davé. He did so after first seeing a Dr Meagher, who had declined to issue him with a WorkCover certificate: T23.
The plaintiff stated that before the subject injury, in his own assessment he was 100 per cent fit for his work: T24.33. He said he felt very strong and that he had intended to continue working for as long as his body kept on working because he was sending money to Chile to support his daughter: T25.15 - T25.33.

[17]

(5) Subsequent medical and allied reviews

Following his injury, and the initial treatment, the plaintiff underwent a number of medical and allied reviews, in the following chronological sequence: 1. On 13 June 2015, at the request of his solicitor, the plaintiff was examined by Ms Caroline Grinter, an occupational therapist: Exhibit "B", Tab 4, pp 14 - 19. The purpose of that assessment was to seek to define the plaintiff's need for injury-related domestic assistance. That matter will be taken up in the analysis of the claim for damages for that head of damage; 2. On 29 February 2016, at the request of his solicitor, the plaintiff was examined by Dr Peter Conrad, a consultant surgeon, in relation to the subject accident: Exhibit "B", Tab 1, pp 1 - 4; 3. On 5 December 2016, the plaintiff was re-examined by Dr Conrad: Exhibit "B", Tab 2, pp 5 - 10. He noted the plaintiff's 1995 injury which was not known to him when he previously examined the plaintiff. Dr Conrad stated his view (at pp 7 - 8) that at age 67, the plaintiff would not be able to re-enter the workforce and that his prognosis for recovery was poor; 4. On 23 January 2017, at the request of the solicitor for the plaintiff, Dr Conrad prepared a supplementary commentary on some identified medical material he was asked to review: Exhibit "B", Tab 3, pp 11 - 13. He stated (at p 12), "In the accident of 29 May 2015, Mr Castillo re-injured the left knee, which had been injured in the past". His earlier expressed view on the plaintiff's work capability remained unchanged; 5. On 17 February 2017, Dr Davé, the plaintiff's treating orthopaedic surgeon, prepared a commentary on some reports he had written about the plaintiff in 1995 and 2015: Exhibit "B", Tab 4, pp 20 - 21. Dr Davé apparently conducted a paper review without a further examination of the plaintiff at this point. He reviewed the previous history, reports and scan results. He noted the plaintiff had in fact returned to work on 8 September 1995, but with ongoing knee symptoms. Dr Davé noted that the plaintiff had also sustained a further work injury on 6 September 2004 resulting in shoulder and right knee problems. He considered (at p 21), that the plaintiff's prognosis was guarded because the plaintiff was likely to develop ongoing arthritic pains and may go on to require a (left) knee replacement. Significantly, Dr Davé stated (at p 21), that the plaintiff's left knee injury on 29 May 2015 was a new injury rather than one involving ongoing problems from the previous injury in 1995; 6. On 22 January 2018, the plaintiff was re-examined by Dr Conrad: Exhibit "B", Tab 5, pp 22 - 27. Dr Conrad considered (at p 24), that the plaintiff had sustained an internal derangement of his left knee in the accident on 29 May 2015, and that this was aggravated by a further twisting injury on 19 July 2017 when the knee gave way at work, the combined effect of which gave rise to a continuing incapacity to work; 7. On 3 April 2018, at the request of the solicitor for the defendant, the plaintiff was examined by Dr Seamus Dalton, a consultant in rehabilitation medicine: Exhibit "1", Tab 1, pp 1 - 16. Dr Dalton considered (at p 11), that there was no evidence to support the claim that the plaintiff sustained an injury to his back, right buttock, right thigh or both hips in the subject accident. He stated that the plaintiff most likely suffered a soft tissue injury to his left leg and knee, which did not result in a tear of the posterior horn of the medial meniscus, and was unlikely to have resulted in any material exacerbation or acceleration of the underlying osteoarthritis. Dr Dalton stated (at p 12), that the plaintiff had most likely recovered from that soft tissue injury and that his current problems, including his inability to work, are due to osteoarthritis in the left knee and longstanding lumbar problems, very poor flexibility, and probable osteoarthritis affecting both hips and his right shoulder; 8. On 1 May 2018, at the request of the solicitor for the plaintiff, Dr Conrad prepared an updated commentary: Exhibit "B", Tab 6, pp 28 - 30. In that commentary, Dr Conrad stated his opinion (at p 28), that the plaintiff's incapacity for work continues, and this has resulted from the injuries he sustained on 29 May 2015 and 19 July 2017. He set out his reasons for that view, namely that the effects of the 29 May 2015 injury had caused the plaintiff's left knee to give way on 19 July 2017 in a further twisting injury; 9. On 1 May 2018, at the request of the solicitor for the defendant, the plaintiff underwent a vocational capacity assessment that was carried out by Professor Robert Pryor, a vocational psychologist, and Ms Christine Leaver, a physiotherapist: Exhibit "1", Tab 2, pp 17 - 48. Their report concluded (at pp 40 - 41), that the plaintiff's language problems made the test scores difficult to interpret despite the assistance of a Spanish interpreter. The report concluded that there were a number of alternative avenues of light employment open for the plaintiff to consider. In my view, those recommendations, such as assembly line work, ticket collector, service station console operator, traffic controller, crossing supervisor and caretaker, were theoretical and were impractical, given the plaintiff's physical and language limitations; 10. On 19 June 2018, at the request of the solicitor for the plaintiff, Dr Conrad prepared a commentary on the opinions within the report of Dr Dalton as well as the opinions within the Vocational Capacity Report: Exhibit "B", Tab 7, pp 31 - 35. Dr Conrad took issue with those reports and he explained his view in that regard in his oral evidence.

[18]

(6) Dr Conrad's oral evidence

The defendant required the attendance of Dr Conrad for cross-examination on his reports: T92 - T103.
In his evidence in chief, Dr Conrad was taken to the final paragraph of Dr Davé's report dated 17 February 2017, which was in the following terms: "I would consider the left knee injury 29 May 2015 to be a new injury rather than ongoing problems from an old injury as at the time of arthroscopy in 1995 there were no arthritic changes within the knee. The knee had recovered enough for Mr Castillo to return back to work which he did for quite a few years. Also, he had a specific injury to the left knee on 29 May 2015, from which he dates his ongoing symptoms to the left knee." [T92.41 - T92.47]
Dr Conrad observed that Dr Davé's stated view, which was unchallenged, also supported his own view that the plaintiff's 29 May 2015 left knee injury was a fresh injury unrelated to any prior injury to that knee.
Dr Conrad went on to explain that the 29 September 2015 MRI scan of the plaintiff's left knee not only showed an area of full thickness wear and tear, but it also showed a complex tear of the medial meniscus in that knee, which was in the opinion of Dr Conrad, clearly a traumatic event, and inculpated the 29 May 2015 incident as the cause: T95.39 - T96.13.
On that basis, Dr Conrad disagreed with Dr Dalton's opinion that the plaintiff's left knee problems were due to osteoarthritis. Dr Conrad said that Dr Dalton's commentary had ignored the fact that the MRI scan showed a complex tear of the posterior horn and body of the medial meniscus: T96.30.
Dr Conrad expressed his total disagreement with Dr Dalton's view that the plaintiff's left knee problems were "almost certainly degenerative", and were instead due to trauma: T96.35 - T96.40. He developed his reasoning for that view by pointing out that the plaintiff's "Parrot beak tear of the medial meniscus" is quite a small tear, which was quite different to the much more complex tear to the posterior horn of the left medial meniscus, which occurred after the plaintiff's 2015 accident and was in a different location: T97.18 - T97.36.
Dr Conrad went on to explain that his view was based on the evidence of a focal meniscal defect described by Dr Sachinwalla in his imaging report dated 4 November 1997, describing it as an oblique tear comprising a 1mm - 2mm peripheral tear or crack in the cartilage, not a displaced tear as is evident in the more complex posterior horn tear that was seen post-accident, and which was quite a different injury: T98.23 - T98.40; T102.5; Exhibit "1", Tab 8, pp 56 - 57.
Dr Conrad acknowledged that the 1997 imaging of the plaintiff's left knee showed probable age-related wear and tear in that knee: T98.46. He disagreed that this was representative of arthritis because radiological findings, without symptoms, do not amount to arthritis: T99.23.
Dr Conrad went on to comment that it was significant that despite the pre-accident imaging changes seen in the plaintiff's left knee, he continued to work until the time of the subject May 2015 accident. He stated that the MRI scan provided objective evidence of a complex tear which was a much more painful condition than any pre-accident arthritic pain the plaintiff might have had in his left knee before his 29 May 2015 injury: T102.36 - T102.46.
Dr Conrad acknowledged that in expressing his opinion that the plaintiff would not be able to re-enter the workforce, his pre-2015 injuries would be a contributing factor to that circumstance: T103.35 - T103.40. There was no re-examination of Dr Conrad to seek to explore or to clarify that evidence.

[21]

(9) Work effects

The plaintiff has not worked since the subject accident. To obtain damages for those circumstances, the plaintiff must prove that his inability to work is due to the effects of the accident: s 5D and s 5E of the CL Act.
Dr Conrad stated that there were several contributing causes to the plaintiff's inability to work, including substantial contributory pre-accident causes. That evidence was not taken up by way of further exploration or analysis: T103.36.
In view of the absence of medical evidence called on behalf of the plaintiff to seek to disentangle the extent to which those respective contributing causes have operated to produce the plaintiff's symptoms, where the plaintiff carries that onus in this case, I am unable to conclude that the plaintiff's inability to work has been entirely or relevantly caused by his injury on 29 May 2015: Azar v Kathirgamalingan [2012] NSWCA 429; (2012) 62 MVR 462, at [134]; Glen v Sullivan [2015] NSWCA 191, at [43] - [47]; Alcan Gove Pty Ltd v Zabic [2015] HCA 33; (2015) 257 CLR 1, at [44]; Mt Isa Mines Ltd v Pusey [1970] HCA 60; (1970) 125 CLR 383, at [18]; Watts v Rake [1960] HCA 58; (1960) 108 CLR 158, at [8]; Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164, at [4]; s 5D and s 5E of the CL Act.
Notwithstanding that view, the fact remains that the plaintiff was working at the time of his accident. By itself, that fact is a relevant and compelling circumstance. That said, in view of Dr Conrad's evidence as to the existence of other contributing causes, the fact the plaintiff was working does not necessarily suggest an ongoing earning capacity that would have continued unimpeded but for the subject accident: s 5D(1) and s 5D(2) of the CL Act.
In my assessment, the fact that the plaintiff was working at the time of his injury, in casual employment, and for sound reasons, namely for support of his young daughter in Chile, are factors that must be accommodated in assessing appropriate buffer amounts for post and future economic loss.

[26]

Issue 2 - Duty of care and breach

As the occupier of the site where the plaintiff was required to work, the defendant owed the plaintiff a duty to take reasonable care for his safety. That duty extended to ensuring the plaintiff was provided with assistance when manipulating heavy objects and that he be provided with an adequately illuminated environment in which he could carry out his assigned tasks, including the provision of appropriate supervision for the assigned task. The plaintiff's claim that the defendant was negligent in its occupation and management of the site must be evaluated in that context.
The plaintiff pleaded some 18 separate particulars of alleged negligence against the defendant, as follows: 1. Allowing the plaintiff to commence the task allocated to him inside the lift shaft area without providing adequate lighting and an adequate lighting extension cord inside the area to provide a safe working environment. 2. Failing to recognise that the task allocated to the plaintiff inside the lift shaft of affixing form ply of the dimensions particularised above, both at ground level and above ground level, was a joint manual handling task requiring at least two workers. 3. Failing to provide the plaintiff, before allocating him the task of securing the sheets of form ply to the lift shaft wall, with an assistant form worker to assist him with lifting the sheets of form ply and to hold the sheets in position until the plaintiff had secured the sheets, using a hand drill tool to apply screws to the sheets, and allowing the plaintiff to work in such circumstances. 4. Failing to heed the plaintiff's request before he commenced the task allocated to him to provide him with both adequate lighting and with an assistant form worker to carry out the allocated task. 5. Failing to heed the plaintiff's repeated request made throughout his performance of the allocated task of the need of another form worker to assist him in the lifting and securing of the sheets of form ply, and allowing the plaintiff to work in such circumstances. 6. Failing to provide the plaintiff with a safe place to carry out the work task allocated to him and allowing him to work in an unsafe place of work. 7. Failing to provide the plaintiff with a safe system of carrying out the work task allocated to him and allowing him to work with an unsafe system of work. 8. Failing to warn the plaintiff of the hazard and risk of injury to which he was exposed by failing to provide him with adequate lighting during the whole of the time he was performing the allocated task of lifting and securing the sheets of form ply. 9. Failing to warn the plaintiff of the hazard and risk of injury to which he was exposed by failing to provide him with an additional form worker to assist him in the allocated task of lifting and securing the sheets of form ply. 10. Failing to arrange with the head contractor a delay in the concrete pour due the next day associated with the lift shaft until adequate assistance could be provided to the plaintiff to allow for safe lifting and securing of the form ply sheets. 11. Failing to warn the plaintiff of the hazard and risk of injury to which he was exposed in working at a height above ground level on scaffolding in circumstances where a sheet of form ply could fall from a height above him and strike him and cause him to fall from a height from the scaffold platform to ground level. 12. Failing, in circumstances where the plaintiff was allocated a task without either adequate lighting and or another form worker to assist him with lifting and holding the sheets of form ply in place while he affixed them by screws to the wall, to provide the plaintiff with adequate rest breaks to mitigate the risk of fatigue and injury. 13. Failing at all to adequately supervise the plaintiff in the task to ensure the plaintiff was provided with adequate lighting and another form worker to assist him in the task when it became apparent that the task required additional lighting and an assistant form worker. 14. Failing to implement and or carry out an appropriate risk assessment or any risk assessment so as to identify hazards and risks of injury associated with the task allocated to the plaintiff, and to prioritize the risks of injury, eliminate the risks and or to control the risk of injury. 15. Failing to have in place an appropriate risk assessment process so as to enable the identification of hazards and risks of injury associated with the manual handling task allocated to the plaintiff. 16. Failing to have in place or to carry out a risk assessment review process so as to identify the hazards and risk of injury associated with the task allocated to the plaintiff. 17. Failing to follow best industry practice of having in place a risk assessment and risk assessment review process so as to identify the hazards and risk of injury associated with the task allocated to the plaintiff. 18. Failing to heed the recommendations both express and implied in the Work Health and Safety Act (NSW) 2011 to have in place risk assessment processes and risk assessment review processes so as identify the hazard and risk of injury to which the plaintiff was exposed by the task allocated to him as particularised above, and to prioritize the risk of injury, eliminate and or control the risk of injury.
In my view, for analysis purposes, those particulars of negligence may be conveniently summarised into the formulation of successive failures to provide the plaintiff with manual assistance with the awkward task required of him, failure to provide adequate lighting where he was required to work, and failure to provide proper site supervision of the progress of the works assigned to him so as to reduce the risk of injury to him. The question of whether or not the defendant had been negligent in those respects must be determined according to the provisions of s 5B and s 5C of the CL Act.
Section 5B of the CL Act provides: 5B General principles (1) A person is not negligent in failing to take precautions against a risk of harm unless: (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and (b) the risk was not insignificant, and (c) in the circumstances, a reasonable person in the person's position would have taken those precautions. (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things): (a) the probability that the harm would occur if care were not taken, (b) the likely seriousness of the harm, (c) the burden of taking precautions to avoid the risk of harm, (d) the social utility of the activity that creates the risk of harm.
Section 5C of the CL Act provides: 5C Other principles In proceedings relating to liability for negligence: (a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and (b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and (c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk.

[38]

Issue 3 - Contributory negligence

For the defendant to sustain an allegation that the plaintiff was contributorily negligent, it must satisfy the preliminary requirements of s 5B, s 5C, s 5R and s 5S of the CL Act, as well as the causation requirements of s 5D of the CL Act.
The defendant relied upon the following pleaded particulars of alleged contributory negligence on the plaintiff's part: 1. failing to have sufficient regard for his own safety; 2. failing to observe his surroundings; and 3. failing to exercise the necessary degree of caution in the circumstances.
Those formulaic general allegations remained non-specific and were not supported by expert evidence.
Section 5R of the CL Act provides the standard for establishing contributory negligence, as follows: 5R Standard of contributory negligence (1) The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm. (2) For that purpose: (a) the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and (b) the matter is to be determined on the basis of what that person knew or ought to have known at the time.
Section 5S of the CL Act provides a basis for a claim such as the plaintiff's to be defeated by a finding of contributory negligence. I do not accept that such a result arises on the facts of this case.
In the plaintiff's situation, he had two principal options. The first option was to recognise that without the benefit of the assistance he had requested, he was at risk of sustaining an injury, and he could have declined to perform the tasks allocated to him by the defendant. That was not an option in his situation. He said he needed the job.
The second option was to use his best endeavours to oblige the defendant's request in circumstances where the defendant controlled the nature of the work tasks and the plaintiff was the labourer employed to carry out that task. The amorphous allegations of contributory negligence raised by the defendant in this case do not reasonably sustain a finding of contributory negligence. At best, if the plaintiff was negligent, which I do not accept, it was a casual act in compliance with a work directive in a flawed work system not of his making and not under his control.
I therefore reject the claim that the plaintiff was contributorily negligent in the circumstances of his injury. Accordingly, his damages will be assessed without any reduction for contributory negligence.

[39]

Issue 4 - Causation

The question of causation of the plaintiff's injury and losses must be determined according to s 5D of the CL Act, which provides as follows: 5D General principles (1) A determination that negligence caused particular harm comprises the following elements: (a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and (b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (scope of liability). (2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party. (3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent: (a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and (b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest. (4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.
I find that but for the negligence of the defendant in failing to provide the plaintiff with assistance and a safe position, including an adequately illuminated position from which to perform his assigned work task, the plaintiff would not have suffered the fall and the debilitating injury to his left knee: s 5D(1)(a) of the CL Act; Strong v Woolworths Ltd [2012] HCA 5, (2012) 246 CLR 182.
In my view, in circumstances where the defendant had engaged labour for building work in order to seek a commercial advantage, it is appropriate that the scope of the defendant's liability extends to the circumstances of the plaintiff's injury: s 5D(1)(b) of the CL Act. No exceptional circumstances arise on the evidence in this case: s 5D(4) of the CL Act.

[40]

Issue 5 - Consideration of s 151Z(2) of the WC Act

A claim by a defendant notionally invoking s 151Z(2) of the WC Act against an employer, as in the present case, must be determined according to Pt 1A of the CL Act, particularly according to the requirements of s 5B of the CL Act: Jurox Pty Ltd v Fullick [2016] NSWCA 180, at [88] to [94].
Section 151Z(2) of the WC Act provides: 151Z Recovery against both employer and stranger (1) … (2) If, in respect of an injury to a worker for which compensation is payable under this Act: (a) the worker takes or is entitled to take proceedings independently of this Act to recover damages from a person other than the worker's employer, and (b) the worker also takes or is entitled to take proceedings independently of this Act to recover damages from that employer, the following provisions have effect: (c) the damages that may be recovered from the person by the worker in proceedings referred to in paragraph (a) are to be reduced by the amount by which the contribution which the person would (but for this Part) be entitled to recover from the employer as a joint tortfeasor or otherwise exceeds the amount of the contribution recoverable, (d) the amount of the contribution that the person is entitled to recover from the employer as a joint tortfeasor or otherwise is to be determined as if the whole of the damages were assessed in accordance with provisions of Division 3 as to the award of damages, (e) if the worker does not take proceedings against that employer or does not accept satisfaction of the judgment against that employer, subsection (1) applies as if the worker had not been entitled to recover damages from that employer, except that: (i) if the compensation paid by that employer exceeds the amount of the contribution that could be recovered from that employer as a joint tortfeasor or otherwise - the indemnity referred to in subsection (1) (d) is for the amount of the excess only, and (ii) if the compensation paid by that employer does not exceed the amount of that contribution - subsection (1) (d) does not apply and the employer has, to the extent of the compensation so paid, a defence to an action for such a contribution.
The focus for the determination of whether the plaintiff's damages should be reduced on account of alleged negligence on the part of his employer raises questions of control of the plaintiff's labour and the supervision of his arranged work tasks.
In this case, the plaintiff underwent a site safety induction. Following that induction, the plaintiff was assigned to carry out casual work under the supervision of the defendant's employees, notably, Mr G Angiletta who whilst not present when the plaintiff was injured, had required the plaintiff to undertake the remedial formwork which led to his injury. This was in circumstances where he was not under direct supervision at the time.
In undertaking this aspect of the analysis I have put aside and not considered the factual matters raised in Mr Burn's report (at Exhibit "B", Tab 8, p 49), relating to a shortage of workers on the site due to an industrial issue in which a number of workers on the site had resigned the day before the plaintiff's injury. That matter remained unexplored and it therefore does not form a sufficiently reliable basis upon which to make conclusions as to safety or a lack of safety on the site.
The question must be asked as to what the plaintiff's employer, as a labour hire company, could have reasonably done as a precaution against injury other than to provide the plaintiff with a safety induction. This is particularly so where the plaintiff, as a formworker, was to carry out semi-skilled work such that it was the requirement of the defendant, and not the employer, who devised the work tasks and undertook the responsibility to supervise the plaintiff in the performance of those tasks. There is no evidence that the plaintiff's employer had special supervisory knowledge or skill in formwork.
For the defendant to sustain a claim for a breach of the employer's duty of care, evidence would have been required to show that the employer was aware of the risks to the plaintiff in the work the defendant assigned to him. In this case, I find that the defendant has failed to satisfy those requirements. The dynamic nature of those risks was a matter within the particular knowledge of the defendant, and this arose on an ad hoc basis. I therefore reject the defence claimed pursuant to s 151Z(2) of the WC Act.

[44]

Past economic loss

The plaintiff submitted that his damages for past economic loss should be assessed at the rate of $800 per week net for 171 weeks in the amount of $136,800: MFI "9".
In contrast, the defendant submitted that the plaintiff's claim for past economic loss was not supported by the evidence: MFI "10", par 53 - par 71. In making that submission, the defendant pointed to the relatively short period of the plaintiff's pre-accident employment at the defendant's site, his prolonged absence from the workforce whilst he was caring for an elderly person with disabilities, an activity for which he was in receipt of a carer's pension, his work on the defendant's site was of a non-permanent and casual nature, and the argued improbability of the plaintiff, at 67, with his past history of injury, continuing to maintain heavy work until the age of 72 years, noting that he presently received an aged pension.
The defendant made no alternative monetary submission to the plaintiff's submission of $136,800.
The defendant's submission has some superficial attraction but I do not accept it in its entirety because of two principal factors. First, the plaintiff was working despite his history of injury. Secondly, he was no longer tied to his role of carer for which he was receiving a carer's allowance. Thirdly, he had a compelling motive to continue to earn money for so long as he was able to do so in order to remit funds to Chile to support his daughter. Fourthly, the aged pension only followed after his post-accident inability to continue working.
Taking those factors into account, the defendant must take the plaintiff as he is found: Mt Isa Mines Ltd v Pusey [1970] HCA 60; (1970) 125 CLR 383. That said, in light of his prior history of injury and his age, I consider it unlikely that but for his injury, the plaintiff would have continued working in steady but nevertheless heavy casual work on a continuous basis.
There are no bright lines in the evidence that assist to define the plaintiff's past loss of earning capacity so as to enable a precise calculation of loss even though the plaintiff had an earning capacity which became impaired by the contributing effects of the accident. In those circumstances, I consider that a buffer amount should be assessed for past economic loss.
Consistent with my findings as identified at paragraph [123] above, I assess the plaintiff's damages for past economic loss in the buffer amount of $40,000.

Castillo v Presmist Formwork Contractors Pty Ltd

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