Occupational Health and Safety (Commonwealth Employment) Act 1991 (Cth)

Civil Law (Wrongs) Act 2002 (ACT), s 21

Scaffolding and Lifts Regulations 1950 (ACT), regs 16, 28, 67

Sungravure Pty Ltd v Meani [1964] HCA 16; (1964) 110 CLR 24

McLean v Tedman [1984] HCA 60; (1984) 155 CLR 306

Hamilton v Nuroof (WA) Pty Ltd [1956] HCA 42; (1956) 96 CLR 18

Vozza v Tooth & Co Ltd [1964] HCA 29; (1964) 112 CLR 316

Fox v Wood [1981] HCA 41; (1981) 148 CLR 438

Bankstown Foundry Pty Ltd v Braistina [1986] HCA 20; (1986) 160 CLR 301

Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59; (1999) 200 CLR 1

Shorey v PT Ltd [2003] HCA 27; (2003) 77 ALJR 1104

Watts v Rake [1960] HCA 58; (1960) 108 CLR 158

Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164

Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638

Ecob t/as Black Swan Coffee Lounge v Wentworth-Shields [2002] ACTCA 2

Griffiths v Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161

AND: TM MANAGEMENT & TOTAL MAINTENANCE SERVICE PTY LIMITED (ACN 008 593 682)

1. judgment be entered for the plaintiff against the first defendant in the sum of $224,830;

2. judgment be entered for the second defendant against the plaintiff; and

3. the claims by each defendant seeking contribution from the other be dismissed.1. This is a claim for damages for personal injuries sustained on 19 May 2000 as a result of an accident at the first defendant's premises at Russell Offices, Russell ACT ("the building") when the platform of an hydraulic device known as a "scissors lift" ("the lift") descended and crushed part of a number of the plaintiff's toes between the platform of the lift and the floor beneath.

2. The plaintiff had been employed by the second defendant as a cleaning supervisor. Her duties and those of other cleaners working under her supervision included the collection of rubbish from offices within the building, which was occupied by the Department of Defence ("the department"). The rubbish was put into black plastic bags which were then placed in blue plastic pouches attached to folding trolleys. When the trolleys were full they were wheeled out of the building to hoppers where the pouches were emptied. Two or three weeks before the accident Mr John McCarthy, who held the position of Director of Facilities and Security in the department, told the plaintiff that the front door of the building would need to be closed for some time due to a refurbishment and that the rubbish would need to be removed by means of an exit near the loading dock. He told her to use the lift. She asked him how to use it and he told her that there were two buttons; one for up and one for down. He said that it was easy to use and that she did not need instructions.

3. The lift consisted of a flat rectangular platform without sides which was raised and lowered hydraulically. It was located adjacent to the loading dock and could be raised to the level of the dock and lowered into a recess in the floor which was about one metre below. There was a control unit containing the two buttons mentioned by Mr McCarthy that could be operated by a person standing on the lift.

4. The plaintiff thereupon began to use the lift by wheeling a trolley laden with rubbish from the loading dock on to the platform and pushing the button to take the lift down to the floor below whilst standing on the platform herself and holding the trolley to prevent it from moving. Then, after removing the bags of rubbish, she would push the other button to take the lift, herself and the trolley back up again. She gave evidence that on two or three occasions prior to the accident she had taken her thumb off the "down" button on the control unit and found that this caused the lift to stop during the course of its descent.

5. On the day of the accident the plaintiff was descending on the lift with a trolley when it started to move. She moved to steady it and in doing so took her right foot off the platform and put it on to the floor. She took her thumb off the button to stop the lift but it continued to descend, with the bottom of the platform crushing the toes of her right foot against the recessed concrete floor beneath.

6. She was unable to immediately find the control unit and press the other button to make the lift go back up. Her foot remained trapped. She screamed but nobody seemed to hear. Eventually she was able to recover the control unit, press the "up" button and release her foot.

7. As a consequence of the accident the plaintiff suffered crushing injuries to the first three toes of the right foot including a compound fracture of the right big toe and a comminuted fracture of the end of the second toe. She subsequently developed pain in her left hip and lower back.

8. On 29 May 2000, Mr McCarthy provided a minute explaining that an internal investigation into the circumstances surrounding the accident was under way and that, whilst the investigation had yet to be completed, it appeared that a combination of three main factors had led to the plaintiff's injury. First, at some time after the installation of the lift in about December 1998 a person unknown had adjusted the descent speed of the platform to the extent that releasing pressure from the "down" button would not prevent it from descending the full distance. Second, the outer edge of the hazard bar which was meant to stop its descent when it encountered an obstruction, had been located approximately 15 mm inside the outer edge of the platform and this permitted objects, such as a person's toes, to pass under the edge of the platform without tripping the bar. Third, the plaintiff was riding on the platform during its descent. The minute indicated that technical representatives of the department had inspected the lift and had undertaken to fully enclose the control box in a locked container to prevent unauthorised adjustment of the descent speed.

9. On 14 June 2000, Mr McCarthy provided a report of the investigation into the accident, indicating that such a report had been required by the Occupational Health and Safety (Commonwealth Employment) Act 1991 (Cth). The report stated that the accident had "resulted from a combination of four main factors", namely:

a. the setting of the lifting table descent speed control to allow a full, uninterrupted descent cycle;

b. the design of the safety bar mechanism which allowed objects up to about 15 mm in length to move under the edge of the lifting table without tripping the safety mechanism;

c. the absence of a clear and agreed set of operating instructions; and

d. Mrs Causoski riding on the lifting table.

10. One of the plaintiff's former subordinates, Mr Leslie Lanham, gave evidence that he had been using the lift for only "a couple of days" when his finger slipped off the "down" button and he discovered that the lift continued its descent. He conceded that this may have occurred more than two days after commencing to use the lift but baulked at the suggestion that it may have been as long as a week later. Mr Lanham gave his evidence with transparent honesty, but the fact that he had had this experience with the lift a few days after commencing to use it provided no rational basis for rejecting the plaintiff's evidence that she had not had a similar experience until she had been using the lift for two or three weeks. Nor did it cast any doubt on the reliability of her evidence that she had earlier found that the lift stopped when she released the button. She had not been able to recall exactly when her earlier experiences of stopping the lift in this manner had occurred and the evidence did not reveal how many times the speed of descent may have been adjusted.

11. I found the plaintiff to be an impressive witness and have no doubt that the relevant events occurred in the manner she described.

12. The first defendant ultimately conceded that it had breached its duty of care to the plaintiff. Regardless of whether that concession had been made or not, I would have readily found such a breach proven.

13. In the absence of any evidence to the contrary, I would have inferred that the person who adjusted the controls to increase the speed of the lift's descent to a rate at which the use of the control button would no longer bring it to an immediate stop had most probably been a member of the first defendant's staff for whom it bore vicarious responsibility. Indeed, even if the final adjustment prior to the accident had been made by a meddling outsider, his or her interference had been permitted by the first defendant's failure to secure the mechanism by a lockable cover. This was a simple and effective precaution which was apparently implemented by the first defendant soon after the accident.

14. Furthermore, as I have mentioned, the lift had been placed adjacent to the dock and in a position where the bottom of the platform could descend into a recess in the floor. This gave rise to a foreseeable risk that the toes of any person standing too close to the lift might be caught between the bottom of the platform and the edge of the recessed portion of the floor. Even if the presence of a "hazard bar" approximately 15 millimetres inside the outer edge of the platform might otherwise have seemed a reasonable precaution, it was clearly insufficient to protect a person such as the plaintiff from this risk.

15. The plaintiff also relied upon allegations that the first defendant had breached statutory duties arising from reg 67 of the Scaffolding and Lifts Regulations 1950 (ACT) which is in the following terms:

(1) Every lift and all parts of it shall be maintained in conformity with these regulations and in safe and proper working condition, and in accordance with the following provisions:

(a) all motor rooms, wells and pits shall be kept clean and free from accumulation of rubbish, dirt, dust or impedimenta;

(b) pits shall be kept dry;

(c) all guides, safety gear, machinery and equipment shall be kept lubricated, and machines and equipment shall be kept clean and free from accumulation of dust and dirt;

(d) all ropes showing indications of excessive wear, splintering, stranding, bunching or rust shall at once be replaced by new ropes;

(e) ropes liable to rust shall be treated with a suitable lubricant or a rust preventive compound;

(f) all enclosures shall be maintained in a safe and effective condition;

(g) all enclosure doors shall be maintained in proper working condition, and so that they cannot leave their tracks or guides;

(h) the enclosure door interlocks shall be maintained in conformity with regulation 29;

(i) all safety gear shall be kept in effective working condition;

(j) all limit gear, and other safety devices shall be maintained in proper working condition and correct adjustment;

(k) the rams of all hydraulic lifts shall be kept in such condition that there shall be no leakage at the gland, and this without unduly pinching the ram;

(l) the controlling mechanism of all hydraulic lifts shall be maintained in such condition that--

(i) the lift will automatically stop before the car lands or the ram reaches its permanent stop; and

(ii) the lift will stop in the event of breakage of the control rope, and

(iii) creeping will not occur when the valve is in the `stop' position.

(2) It shall be the duty of the owner of a lift to observe the provisions of this regulation.

16. Whilst it was alleged that the first defendant had been guilty of a breach of reg 67(1)(f), this requirement appears to have been irrelevant since the term "enclosures" is used in the regulations to refer to lift wells (see, for example, reg 28) and there was no comparable structure enclosing the small free-standing lift used by the plaintiff.

17. Mr Crowe, who appeared for the plaintiff, argued that there had been a breach of reg 67(1)(i) because the lift had previously had what he described as a "dead man" operation which arrested the descent of the platform if the control button was released. This fell within the concept of "safety gear" and it had not been kept in effective working condition but rendered inoperative by the adjustment to the control box. However, the term "safety gear" is defined by reg 16 to mean "a mechanical device or mechanism attached to the underside of a lift car that on operation will stop and sustain the car independently of the lifting ropes". Even if the facility to operate the platform at a speed that would enable it to be stopped by releasing the button could be regarded as falling within this description there was no evidence that it had not been kept in effective working condition. The reports prepared by Mr McCarthy do not disclose that the mechanism was defective, but only that the adjustment had increased the speed of descent to the point where it would no longer operate. What is required by the relevant portion of the regulation is that the controlling mechanism of a hydraulic lift be "maintained" according to the conditions stipulated. An owner can not be held to have breached this requirement by evidence that a fully operational and presumably well maintained lift had been designed in a manner which permitted the speed of descent to be adjusted even if, as a consequence, it was possible that the speed might be increased to a level that would create a risk of injury to a person riding on it as a passenger rather than merely using it to convey freight.

18. Mr Crowe also submitted that there had been a contravention of reg 67(1)(l)(i) because the safety bar of the lift had been set too far back from the edge of the platform, especially for a lift that had been placed in a position in which the platform was to descend into a recess in the floor. However, Mr McCarthy's reports do not suggest that any danger was attributable to the mechanism not being kept in effective working condition but, rather, to the design and I am not satisfied that the defendant committed any breach of this requirement.

19. Accordingly, I reject the plaintiff's claim that the first defendant was guilty of a breach of statutory duty, though I am quite satisfied that it was guilty of a breach of its common law duty to her.

20. Regulation 67 does not appear to cast any statutory duty on to employers who do not own the lift in question but, even if it did, the relevant claims against the second defendant would also have to be rejected.

21. Mr Perry, who appeared for the first defendant, submitted that the plaintiff was guilty of contributory negligence. He argued that it had been negligent for her to ride on the lift with the trolley. He maintained that she should have wheeled the trolley onto the lift, pressed the button to make it go down, then she should have walked around the top of the loading dock until she could have descended the stairs and walked back to the lift to remove the trolley from the lift at the bottom. Any risk of the trolley moving on the platform could have been overcome by chocking its wheels or, as Mr Perry suggested to the plaintiff in cross-examination, by unpacking and folding the trolley before putting it on the platform.

22. Needless to say this counsel of prudence was not offered to the plaintiff prior to her injury. She was simply told to use what she had been told was a lift for the purpose of taking rubbish out of the building. The instruction was given to her by a person who occupied an apparently responsible position with the first defendant and who, presumably, was well aware that she and the other cleaners used trolleys for that purpose. Furthermore, other employees of the first defendant were apparently in the habit of riding on the lift.

23. It was not suggested that the use of the lift by the plaintiff in the manner she described would have contravened the provision of any statute or regulation or that it would have been contrary to any Australian standard. It is true that the lift had neither sides nor a railing, but it had a wide flat platform and I can see nothing in the evidence to suggest that a person could not have stood safely on it whilst it descended to the floor about one metre below. It was not suggested that the lift moved swiftly or abruptly or that its downward movement was accompanied by any vibration that may have created a foreseeable risk of users losing their balance. Nor was it suggested that there had been insufficient room for the plaintiff and a trolley on the platform.

24. Whilst the plaintiff conceded that she had stepped off the lift because the trolley had started to move, it was not suggested in cross-examination that this had been attributable to the movement of the lift. Nor was there any suggestion that she had experienced any difficulty in using the lift on any other occasion. Similarly, it was not suggested to Mr Lanham, who gave evidence of his experience in riding on the platform of the lift whilst taking trolley loads of rubbish out of the building, that he had ever had any difficulty in doing so. There was also evidence that it was common practice for employees of the first defendant to ride on the lift and it was not suggested that any of them had ever suffered any injury or even lost balance whilst doing so. Furthermore, I can see no reason to assume that all of those people overlooked or chose to ignore some risk of injury that Mr Perry submitted should have been readily apparent to someone exercising due care for his or her own safety.

25. Whilst plans and photographs of the lift were in evidence, I did not have the advantage of riding on it or of seeing it operated. Many of the first defendant's employees apparently did enjoy those advantages and the first defendant chose not to call any of them to give evidence in support of its contention. Mr Lanham, who was called to give evidence on behalf of the first defendant was examined about the stability of the trolleys whilst laden with rubbish but was not asked any questions concerning the relative smoothness of the movement of the lift or any aspect of its operation that may have caused him to have any concern about its safety or stability. Nor did Mr Perry seek to adduce any expert evidence to establish that there was some aspect of the design or operation of the lift that should have suggested to a person in the position of the plaintiff that it may have been unsafe to use it as she did.

26. The system of work which Mr Perry suggested should have been implemented would not have removed the danger that ultimately led to the plaintiff's injury. There was no evidence to suggest that a person who descended the stairs and waited for the platform to complete its descent so that he or she could remove a trolley would have been any less likely to have his or her toes caught under the descending platform than a person who, like the plaintiff, stepped off the trolley as it descended.

27. The system would have involved unpacking the trolley, placing the bags on the platform of the lift, then folding up the trolley and placing it on the lift, before walking around the loading dock, descending the stairs, pressing the "down" button to lower the lift, walking back to the lift, unfolding the trolley and repacking it. The plaintiff, who had had to take time off work due to back pain during the year prior to the accident, said that she did not think that this would have been a good idea. She agreed with the suggestion that it would have taken more time but, when pressed as to whether it would have been safer, said that she did not know whether it would have been.

28. I do not accept that I can simply take judicial notice of a perceived truism that it must be dangerous to stand on a flat platform of an adequate size whilst it descends at an unknown rate a distance of about one metre from a loading dock to the floor below, even with a trolley containing rubbish, especially when, as I have mentioned, the party seeking to rely on that proposition could have called evidence as to its validity but chose not to do so. Nor do I accept that I should act upon an assumption that the plaintiff would have been able to adopt the system of work suggested by counsel for the first defendant without some risk of the trolley moving and ultimately falling over or, if the plaintiff had adopted the system suggested to her in cross-examination, of the bending and other movements involved in carrying out the required acts provoking further back strain or injury. There was no evidence to establish that any reduction in the risk of injury that may have been achieved by the adoption of such a system would have outweighed any risk of back strain or other injury arising from the movements that would have been required by such a system, and certainly no evidence that the possibility of obtaining such a net gain in safety should have been evident to the plaintiff.

29. In any event, an employee may not be guilty of contributory negligence if any departure from a standard of reasonable care was attributable to some temporary inadvertence, some inattention or some taking of a risk, "excusable in the circumstances because not incompatible with the conduct of a prudent and reasonable man", per Windeyer J in Sungravure Pty Ltd v Meani [1964] HCA 16; (1964) 110 CLR 24 at 37; McLean v Tedman [1984] HCA 60; (1984) 155 CLR 306 at 315. In the present case, if I had decided that, in electing to use the lift in this manner, the plaintiff had departed to some extent from the standard of care she should have taken for her own safety I would nonetheless have concluded, that in all the circumstances, the taking of such an apparently minor risk was excusable in the circumstances as not incompatible with the conduct of a prudent and reasonable person.

30. I am not satisfied that the plaintiff was guilty of contributory negligence.

31. Mr Crowe and Mr Perry both argued that the second defendant had also breached its duty of care towards the plaintiff. Mr Crowe sought a further verdict in favour of the plaintiff against the second defendant whilst Mr Perry submitted that the first defendant was entitled to a substantial contribution from the second defendant, presumably by reason of the joint tortfeasor provisions contained in s 21 of the Civil Law (Wrongs) Act 2002 (ACT).

32. It was suggested that the system of work adopted by the plaintiff in response to the direction by Mr McCarthy was inherently unsafe. The second defendant had breached its duty of care by failing to have regular inspections of the workplace undertaken by Mr Antonio Matruglio, who was a principal of the second defendant, or by others with more authority than the plaintiff, in order to ensure that a safe system of work was being followed. Alternatively, a breach of its duty had occurred by reason of the plaintiff's own failure to institute a more safe system of work.

33. An employer's duty to take reasonable care for the safety of its employees is a non-delegable one. Hence, an employer will be liable for any injuries caused to an employee by reason of its failure to implement a safe system of work, irrespective of the position in the corporate hierarchy enjoyed by the servant or agent responsible for such failure. There is no separate duty requiring a corporate employer to ensure that one or more of its directors, rather than other suitably qualified employees with the necessary authority, inspect workplaces and monitor the adequacy of any systems of work that may be implemented. In the present case, I can see no reason to accept that the second defendant breached its duty of care to the plaintiff by merely entrusting to her the responsibility for supervising the cleaning activities in the building or failing to have a director ensure that, in doing so, she was employing safe systems of work. The real question is whether, viewed objectively, there was a breach of the non-delegable duty that the second defendant owed to her.

34. It may seem anomalous to even consider the possibility of a contention that the second defendant failed in its duty to provide the plaintiff with a safe system of work when she was the person whom it had entrusted with devising and supervising any such system, especially when a contention that she failed to comply with her own duty to exercise due care for her safety has already been rejected. However, the duty of an employer to take reasonable care for the safety of its employees is by no means co-extensive with the duty of employees to take reasonable care for their own safety. Most notably, whilst an employee may elude a finding of contributory negligence if his or her departure from a standard of reasonable care was attributable to temporary inadvertence, inattention or taking of a risk "excusable in the circumstances" because not incompatible with the conduct of a prudent and reasonable person, an employer must normally take into account the possibility of employees acting inadvertently, inattentively or even, perhaps, seeking to cut corners in order to complete their duties within the time available. Consequently, as Mr Crowe pointed out, a finding that the plaintiff was not guilty of contributory negligence would not preclude a finding that the second defendant had breached a duty of care which it owed to her. The real question is whether the evidence proves such a breach.

35. As previously mentioned, there is a paucity of evidence on this issue. No attempt was made to prove that use of the lift by a single passenger, even with a trolley load of rubbish, would have exposed him or her to a foreseeable risk of injury, other than that created by the adjustment to the speed of descent that had effectively disabled the control button and prevented the plaintiff or other users from stopping the lift before it reached the floor below. I am unable to say whether a tactical decision was taken not to adduce any expert evidence as to this issue, though it would not have been surprising if the plaintiff's legal representatives had thought that such evidence might not have enhanced her prospects of eluding a finding of contributory negligence or if, whilst the first defendant was still denying any breach of duty, its legal representatives had thought that it might have made it more difficult to maintain that position. Whatever the reasons, there is neither expert evidence to suggest that the use of the lift by passengers was inherently dangerous, nor evidence from those who used the lift to establish any previous incidents of passengers losing their balance, trolleys becoming unstable during the course of descent or even vibration or other movements likely to have created a risk of such occurrences.

36. It is true that use of the lift did involve some risk of injury because the hazard bar was located some 15 millimetres in from the edge of the platform and this was sufficient to trap the toes of anyone standing too close to the lift as the platform descended. The fact that the platform was intended to descend into a recess in the floor would have been apparent to anyone carrying out a cursory inspection but, in my opinion, an employer not shown to have had any particular experience with scissor lifts, might reasonably have assumed that a Commonwealth Government department would not have installed such a lift, permitted its own staff to ride upon it and directed the plaintiff and her staff to use it without taking appropriate steps to ensure that it was reasonably safe for that purpose. Such an impression may have been enhanced by Mr McCarthy's assurance to the plaintiff that it was easy to use and that she would not need instructions. I do not accept that it was incumbent upon the second defendant to obtain the first defendant's permission to have the lift independently inspected by an expert in the design and construction of lifts or industrial safety.

37. The claims against the second defendant by the plaintiff and the first defendant were substantially dependent upon the contention that it should have obviated the risk of injury, whether occasioned by reason of the location of the hazard bar or otherwise, by implementing a system of work which required the plaintiff to descend the stairs rather than riding down on the lift. I am not satisfied that the evidence provides an adequate basis for this submission.

38. Whilst, as Mr Perry pointed out, the standard of care required of an employer is a high one, it is not an absolute one. It is the duty "of a reasonably prudent employer and it is a duty to take reasonable care to avoid exposing the employees to unnecessary risks of injury": Hamilton v Nuroof (WA) Pty Ltd [1956] HCA 42; (1956) 96 CLR 18 at 25 per Dixon CJ and Kitto J. See also Vozza v Tooth & Co Ltd [1964] HCA 29; (1964) 112 CLR 316 at 319 per Windeyer J; Bankstown Foundry Pty Ltd v Braistina [1986] HCA 20; (1986) 160 CLR 301 at 307-308 per Mason, Wilson and Dawson JJ; and Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59; (1999) 200 CLR 1 at [276]. Hence, as the High Court said in an oft quoted passage by Windeyer J in Vozza v Tooth & Co Ltd [1964] HCA 29; (1964) 112 CLR 316 at 319:

For a plaintiff to succeed it must appear, by direct evidence or by reasonable inference from the evidence, that the defendant unreasonably failed to take measures or adopt means, reasonably open to him in all the circumstances, which would have protected the plaintiff from the dangers of his task without unduly impeding its accomplishment. To quote a sentence from one of the cases to which counsel referred, "What is 'a proper system of work' is a matter for evidence, not for law books": per Lord Denning in Qualcast (Wolverhampton) Ltd v Haynes [1959] AC 743, at p 760.

39. Despite the persuasive arguments to the contrary by both Mr Crowe and Mr Perry, I am unable to find, by reliance upon direct evidence or inference, that the second defendant unreasonably failed to adopt a measure that would have protected the plaintiff from the danger of injury being caused by the lift descending onto and crushing part of her foot.

40. There will be a verdict for the second defendant in the action by the plaintiff and in the proceedings for contribution by the first defendant.

41. The plaintiff is clearly entitled to substantial damages against the first defendant. The initial pain of the accident was compounded by the fact that her foot was trapped and for some time she was unable to extricate it or, she believed, make anyone hear her screams for help. Mr Lanham was the first on the scene after she had been able to retrieve the control unit and press the "up" button to release her foot. He became visibly emotional when asked to describe how he had found her. Her distress, even after her foot had been released, obviously made an indelible impression upon him. One does not need to be unduly sensitive to appreciate the distress that she must have suffered during that mercifully short period in which she was trapped with her foot crushed beneath the platform of the lift and there appeared to be no one to help her.

42. Sadly, the initial incident has been followed by chronic pain. She was unable to work for a period of seven weeks and during that period she seems to have been substantially incapacitated and dependent upon members of her family to care for her. At the time of the accident she had held two jobs, working as a cleaner five days a week at the Department of Defence from 6.00 am until 2.30 pm and for Fondi Complete Cleaning Service from 5.00 pm until 9.00 pm. However, after this period of incapacity she was able to return to work on a temporary basis for only four hours per day. Even then, she was unable to do any of the physically demanding work she had undertaken before and was limited to taking messages and supervising her staff. She was able to increase her working hours to about eight hours per day after a further period of about two or three months, during which time she had been referred for a course of physiotherapy and had obtained special shoes recommended by Mr Geoffrey Stubbs, an orthopaedic surgeon. She returned to working a full twelve-hour day in about December, 2000.

43. The plaintiff impressed me as a conscientious person and I have no doubt that she would have been anxious to return to work, if only because she needed the money and did not wish to jeopardise her position with the second defendant. I accept her evidence that she has maintained that employment notwithstanding chronic pain. She explained that most of the pain is a sharp pain in an area running from the front of the big toe along the upper ridge of the foot to a point on the front of the ankle about 15 to 18 centimetres above the heel. She has to take four to eight Nurofen tablets each day to reduce the pain and even then has been obliged to limit her activities. She has also been left with an unsightly scar and is plainly embarrassed by it. I accept her evidence that she is normally unable to wear dress shoes.

44. Out of pocket expenses have been agreed in the sum of $12,678. Those expenses that are not still outstanding have been paid by the workers compensation insurer and no interest is payable on this amount.

45. There is also a claim for future medical and pharmaceutical expenses. From time to time she is likely to need to consult a podiatrist and perhaps a physiotherapist as well as her general practitioner. She is also likely to have to replace either special shoes or inserts at regular intervals and, as I have mentioned, she consumes substantial quantities of analgesics. I allow the sum of $8,000.

46. It is conceded that an appropriate award for past loss of earnings is the sum of $9,052 and this figure includes the Fox v Wood [1981] HCA 41; (1981) 148 CLR 438 component.

47. The plaintiff claims a buffer for future loss of earnings. Mr Crowe submitted that I could safely find that the plaintiff would have worked to age sixty had it not been for the injury but that it was now likely that she would have to cease work at least five years earlier. On the other hand, Mr Perry submitted that whilst her general practitioner, Dr Idowu, had earlier expressed the opinion that the injury could shorten her working life by between five and seven years, he had not adhered to that opinion in cross-examination.

48. In fact, Dr Idowu spoke with a pronounced accent and the answers that he gave in cross-examination, by telephone, were further distorted by the loud speaker. As a consequence, many of his answers were quite unintelligible. However, I did not understand Dr Idowu to have resiled from any of the opinions expressed in his reports.

49. The plaintiff's injuries were also assessed by Miss Schellenberger, a surgeon, on 3 September 2002. The plaintiff was then complaining of pains and cramps in the right foot extending into the base of the big toe. She also complained of pain in the low left back extending into the lateral aspect of the left hip, though this pain had apparently improved with physiotherapy. In addition, she said that she suffered posterior neck pain extending into the left upper shoulder blade region which was at times sharp "like a knife". She had recently developed swelling in the left lower leg that Miss Schellenberger said she had "incorrectly" attributed to over-reliance on the left leg due to the right foot injury. Miss Schellenberger said that the plaintiff had a permanent partial incapacity in the right foot which limited excessive activities on her feet, heavy lifting and carrying, regular use of stairs and ladders, walking over unstable and irregular surfaces, running and jumping. Miss Schellenberger added:

About 4 months after the right foot injury at work, when she was becoming more ambulant and had resumed part-time supervisory work despite a painful foot with a limp, Ms Causoski developed left sided low back pain suggestive of aggravation of pre-existing asymptomatic lower lumbar disc degeneration and spondylosis due to the unbalanced gait from the work injury to the right foot. There were no xrays to confirm the suspected secondary back injury. The low back pain improved with physiotherapy but failed to fully recover. It is unlikely to ever fully recover. It is probable that she will have a permanent impairment with a permanent partial incapacity in the lower back. The back incapacity will prevent heavy lifting and carrying, repetitive bending and twisting, prolonged standing and prolonged sitting . . .[emphasis in original]

50. Miss Schellenberger also mentioned that the plaintiff had sustained soft tissue injuries to the left cervical regions of her neck in a motor vehicle accident some five months earlier but said that the injury had been improving and that her work had not been interrupted.

51. Miss Schellenberger saw the plaintiff again on 1 June 2004 and provided a further report in which she indicated that the residual right foot and low back complaints had stabilised but that further improvement was not expected. She said that from an industrial point of view, the residual right foot complaint had caused a 10 per cent loss of function below the ankle according to the "Table of Maims", and that the back pain had caused a further 5 per cent impairment. She said that the plaintiff had been extremely well motivated to continue employment and had been able to resume full time work as a cleaning supervisor "with modifications" but that she had had to rely on her daughter to help at home so that she could rest and maintain her fitness for work. When her daughter married and moved away from home in the near future, the plaintiff would have difficulty coping independently. She noted that the plaintiff still had some residual neck ache from the 2002 car accident.

52. Mr Perry submitted that Miss Schellenberger had formed her impression as to the causation of the plaintiff's back pain on a false premise, because she was not aware of the plaintiff having suffered back pain in June 1999. He also challenged Miss Schellenberger's opinion that the plaintiff's low back pain had been suggestive of an aggravation of pre-existing asymptomatic lumbar disc degeneration and spondylosis due to the unbalanced gait she had adopted as a consequence of the injury to her foot, arguing that this was only one of a number of possibilities.

53. However, as Mr Crowe pointed out, Mr Geoffrey Stubbs, an orthopaedic surgeon, had expressed a similar opinion as early as August 2000, explaining that the plaintiff's unwillingness to transfer any weight across from the heel of the foot to the metatarsal heads, let alone onto the big toe, had given her a very stilted walk which, he said, he was "sure" was responsible for her left hip and left heel pain.

54. There was apparently no application for Miss Schellenberger or Mr Stubbs to be made available for cross-examination and the plaintiff saw two orthopaedic surgeons at the request of the first defendant but neither were called to give evidence of any alternative explanation for the plaintiff's hip or back pain. I accept that the hip and back pain is causally related to the accident in the manner suggested by Miss Schellenberger and Mr Stubbs.

55. It is true that the plaintiff has had some other physical problems, the onset of which predated the injury to her foot. In particular, she had had a number of dizzy spells apparently attributable to Meniere's syndrome and, as I have mentioned, some episodes of back pain. Furthermore, there was some evidence to suggest that, as late as June 2004, she had been continuing to experience pain in her cervical spine due to the motor vehicle accident in which she was involved in April 2002. In these circumstances Mr Perry submitted that it would be unrealistic to assume that the plaintiff would have been able to continue working until she turned sixty. She had probably had degenerative changes to her back and her cleaning duties, including those requiring her to wear a vacuum pack on her back, would have inevitably forced her into retirement well before that age. In all the circumstances, he submitted that I could not be satisfied that there would be any future loss of wages attributable to her injury.

56. Mr Perry acknowledged the validity of the general principle that a negligent defendant must take the plaintiff as it finds him or her and pay damages accordingly: Shorey v PT Ltd [2003] HCA 27; (2003) 77 ALJR 1104 per Kirby J at 1111; see also Watts v Rake [1960] HCA 58; (1960) 108 CLR 158 per Dixon CJ at 160. However, as Gaudron J said in Chappel v Hart (1998) 195 CLR 232 at 241, "it is well settled that an award of damages must take account of the probability that some or all of the damage suffered by the plaintiff would have occurred in any event". On the other hand, it is clear from the majority judgment in the earlier case of Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164 at 168 that where a plaintiff has established a prima facie case that incapacity has resulted from the defendant's negligence, the onus of adducing evidence that his or her incapacity is wholly or partly the result of some pre-existing condition or some portion of that incapacity would, in any event, have resulted from a pre-existing condition rests upon the defendant. Their Honours also explained, at 168, that:

. . . it is not enough for the defendant merely to suggest the existence of a progressive pre-existing condition in the plaintiff or a relationship between any such condition and the plaintiff's present incapacity. On the contrary, it was stressed [in Watts v Rake] that both the pre-existing condition and its future probable effects or its actual relationship to that incapacity must be the subject of evidence (ie either substantive evidence in the defendant's case or evidence extracted by cross-examination in the plaintiff's case) which, if accepted, would establish with some reasonable measure of precision, what the pre-existing condition was and what its future effects, both as to their nature and their future development and progress, were likely to be. That being done, it is for the plaintiff upon the whole of the evidence to satisfy the tribunal of fact of the extent of the injury caused by the defendant's negligence. In the present case the evidence accepted by the learned trial judge by no means established with any reasonable degree of precision the extent of the appellant's pre-existing affliction or what its future effects were likely to be. That being so, we think it was proper for him to deal with the case on the basis the defendant's negligence was the cause of the appellant's permanent disability . . .

57. In my opinion these principles are apposite to the present case. I do not accept that the first defendant has established with any reasonable degree of precision the extent of any pre-existing afflictions of the plaintiff or what their future effects were likely to have been or, in particular, what impact they were likely to have had on her prospects of maintaining full time employment.

58. That does not mean that I am obliged to assess damages for future economic loss by turning a "Nelsonian" eye to obvious risks of injury, illness, or normal physical degenerative processes that might well have forced her out of the workforce earlier than she had hoped. As the High Court observed in Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638 at 643, if the law is to take account of future or hypothetical events in assessing damages it must assess the degree of probability of such events occurring and adjust the award of damages accordingly.

59. In the present case, it is obviously impossible for anyone not equipped with a crystal ball to know precisely how long the plaintiff would have been able to maintain her current employment had she not suffered this accident and equally impossible for such a person to know how much earlier she is likely to be forced out of the workforce as a consequence of that accident. However, as the Australian Capital Territory Court of Appeal said in Ecob t/as Black Swan Coffee Lounge v Wentworth-Shields [2002] ACTCA 2 per Crispin P and Gray J at [31]:

"...a court is not relieved from the duty of assessing damages merely because they are not amenable to precise calculation or because the task is otherwise fraught with difficulty: see, for example, Redden v Forde (unreported, Supreme Court of the ACT, Miles CJ, Crispin and Ryan JJ, 27 May 1998) and Luntz, Assessment of Damages for Personal Injury & Death, (4th edition), p 121. Whilst, as Stephen J pointed out in Gamser_, a Court should not forsake a sound reasoning process for a purely intuitive approach, a judge may sometimes encounter situations in which he or she may feel that there is little more than intuition to rely upon. When the evidence does not permit the magnitude of the plaintiff's loss to be determined with certainty, the judge or master must do the best he or she can to assess damages on the limited evidence available._

60. The plaintiff has clearly suffered a substantial permanent disability as a result of the accident. She has been left in constant pain and whilst she continues to work long hours she is able to sustain them only by consuming substantial quantities of analgesics and, I suspect, by the application of considerable willpower. While she has been able to ameliorate the physical demands of her duties to some extent, they remain physically taxing and she will no doubt reach a point where she is no longer able to sustain the physical activity required. It is obviously appropriate to take into account the risk that continuing problems with Meniere's syndrome may, in any event, have had some impact upon her ability to maintain her employment, the risk that the back pain she had experienced prior to the accident may have reflected a degenerative condition likely to produce increasing pain with physical activity as she got older and the risk that the injury to her neck caused in the motor vehicle accident in April 2002 might prove more significant than she had previously imagined. Nonetheless, the level of incapacity from which she suffers is likely to ensure that she reaches that point far earlier than she would have done had the accident not occurred. She is entitled to be compensated for the loss of the income she would otherwise have been able to earn between the time she is forced out of the workforce by her injuries and the date at which she would otherwise have retired.

61. Doing the best I can on the limited evidence available, I think that the plaintiff would probably have sustained employment until she was about sixty years old had it not been for the accident, though her hours may well have been curtailed as she approached that age. She impressed me as the kind of person who would have persevered for as long as possible, even in the face of increasing difficulties due to such factors as recurrent illness and episodes of back pain, especially since it seems unlikely that she would have been able to afford to retire any earlier. I am also satisfied that the disabilities caused by the accident are likely to force her to retire about five years earlier and that they may force her to curtail her hours of work at an even earlier time.

62. As Mr Crowe has pointed out, the present value of a loss of $723 net per week, which is the plaintiff's current income, sustained between the ages of fifty-five and sixty would be $142,431. However, that sum must be substantially reduced to allow for the risk that the plaintiff might, in any event, have been forced out of the workforce prior to the latter age by reason of one or more of the factors I have mentioned and/or other contingencies of life. Some allowance must also be made for the risk that she would have been forced to substantially curtail her hours of work even before her retirement, though this risk should be substantially offset against the likelihood she will be forced to similarly curtail her hours prior to being forced wholly out of the workforce by her present disabilities. Having regard to all of these factors, I think it is appropriate to reduce the projected loss by 30 per cent. Accordingly, I allow the sum of $99,700 as a buffer for future economic loss.

63. A claim for the sum of $8,000 pursuant to the principles in Griffiths v Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161 was not challenged and in my opinion is amply justified. I allow a further amount of $1,400 for interest on this amount.

64. The plaintiff claims a further sum of $22,500 for the future assistance that she is likely to require in coping with such tasks as maintaining her home and garden with the disabilities caused by the accident. This figure represented 2 hours work per week at the rate of $15.00 per hour discounted at 3% per annum for a period of 35 years but subject to a reduction of about one-third to allow for the vicissitudes of life. Whilst otherwise obviously reasonable, this formulation does not adequately reflect the likelihood that, after a lifetime of physical work, the plaintiff would have developed the need for some domestic assistance as she grew older even if the accident had not occurred. I allow the sum of $12,500.

65. Finally, I allow general damages in the sum of $70,000, apportion $40,000 for the period prior to trial and allow interest of $3,500 on the latter amount.

66. There will be judgment for the plaintiff against the first defendant in the sum of $224,830.

67. The claims by each defendant for contribution from the other will be dismissed.

I certify that the preceding sixty-eight (68) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Crispin.

Solicitor for the plaintiff: Pamela Coward & Associates

Solicitor for the second defendant: Dibbs Barker Gosling