Corbett v Toll Stevedoring Pty Ltd & Ors

Corbett v Toll Stevedoring Pty Ltd & Ors - [2007] NSWSC 656 - NSWSC 2007 case summary — Zoe

[23]

The operations in the hold 10 The first defendant, known as BHP Stevedoring Pty Limited at times relevant to this claim, was, as that name would indicate, carrying on stevedoring operations at Port Kembla and as such was engaged in loading the coils onto the vessel. It employed the stevedores engaged in that procedure. Mr Caruana, who gave evidence in this cause, described himself as the stevedoring manager, appointed to that position in 1997. (In fact, the letter as to his appointment (Exhibit 1(1D)) is dated 10 March 1998.) Mr Caruana said he was recruited to become stevedoring manager by David Martin, who he described as "the manager of land logistics", a description suggestive of a connection with the fifth defendant. Mr Caruana said that his task in short was to reform the stevedoring operations and to eliminate inefficiencies. Mr Caruana went to Western Port in Victoria and to New Zealand to see how loading operations were conducted there. He noted that the system of securing loads in holds was much more efficient in those places. By way of contrast to the method of securing with wires employed at Port Kembla harbour, at Western Port strapping was used. The load was secured progressively as the loading procedure continued. The loading was quicker and required less men than at Port Kembla. The plaintiff gave evidence that there was a trial of the secure-as-you-go system at Port Kembla before his accident but his evidence to that effect is inconsistent with evidence from other sources, and I do not accept it. I am satisfied the secure-as-you-go procedure did not commence prior to the plaintiff's injury. 11 Broadly speaking, the procedure when Mr Caruana entered the scene at Port Kembla was that the stevedores would load the hatch. Thereafter subcontractors would move into the hatch to secure the load, and wiring was used. I am satisfied that the system in use when Mr Caruana took up his position had been in use port wide at Port Kembla for many years and that it remained the system in use at the time that the plaintiff was injured. 12 The plaintiff produced a video and he also gave a description of the securing process current at the time of his accident, which I accept as being accurate. His description can be better understood by reference to the photographs, Exhibit B1-B4. Exhibit B4 is a photograph on which he marked the approximate position where he landed after he slipped from the top coil. What the plaintiff said (at T 17-18) is as follows: "Q. If we could just deal with the time of your accident. Were they similar coils to that being secured? A. This is a better quality coil there. The ones we were doing were more of a seconds as they call it. They were several different sizes and they didn't have the protective tin plate.

[26]

The work system was unsafe 15 The plaintiff gave evidence of earlier experiences of slipping (T 19) and he said he complained to Mr Cox, his leading hand, that the procedure was dangerous. He said that Mr Cox agreed with him. I accept the plaintiff's evidence about his earlier complaints. Mr Cox said, and I accept, that he expressed concerns about people slipping on coils to Mr Roach on several occasions before the plaintiff's accident (T 225). Mr Roach was a grade 6 stevedore employed by the first defendant. 16 The witness, Mr Nicholls, another marine operator at the time of the plaintiff's accident, had done work of the sort that the plaintiff was doing and he too noted that working on the coils "could be slippery". 17 Mr Blasi was the principal operations coordinator for the first defendant in 2001 and he acknowledged in cross examination (T 451) that the hazard of walking on the coils was not a new issue but one about which he had become aware within a month of starting at stevedoring in 2000. 18 Mr Buckland, consulting engineer qualified by the plaintiff in this matter, said this relevantly as to the system in place at the time of the plaintiff's accident: "In this case, the securing of the steel coils in the hold of the ship was essential to prevent their movement during transit and to thereby promote the stability of the ship. The method of securing that was utilised, however, involved people exerting pushing/pulling forces on steel lashing cables, whilst moving about in elevated positions on top of the coils. The surfaces of the coils underfoot were uneven, curved, smooth and potentially slippery. In the writer's opinion, it ought to have been plainly evident in any proper assessment of the work situation, that there was the risk of a loss of footing and an ensuing fall… A fall from a height of up to 4.5 metres was quite likely, yet no physical means of fall prevention was provided for the Plaintiff and the writer is hence of the view that the system of work which the Plaintiff had to follow, was patently dangerous." 19 The evidence satisfies me that the system of work provided the plaintiff with neither secure foothold nor secure handhold whilst he was required to be on top of the coils and to move there. There was no means provided to address the obvious risk of his falling whilst on and stepping from and onto the smooth and rounded surfaces the coils presented. 20 The risks associated with working at heights were long recognised in industry prior to the time of the plaintiff's accident and had been addressed in other industrial settings. They were addressed in factories by the Factories, Shops and Industries Act 1962: see, for instance, s 40(2) of the Factories, Shops and Industries Act. They were addressed in the building industry by regulations made under the Construction Safety Act 1912: see reg 73(1) and 73(3) of the regulations made pursuant to that statute. The risk of falling was a risk recognised in loading and unloading procedures in para 3.1 of the appendix to the Marine Orders issued pursuant to s 425(1)(AA) of the Navigation Act 1912. 21 I am satisfied that the plaintiff was exposed to an unsafe system of work at the time that he was injured and that this exposure was causative of the harm suffered. Before turning to consider the issue of liability of the various defendants, it is convenient to deal with the issue of contributory negligence. That defence has been pleaded by the first defendant, but I do not consider that this defence has been established. The plaintiff did not determine the place or system of work. The plaintiff was required, in order to perform his work under the system provided, to do what he was doing when he fell, and it has not been proved that as he went about his work, the plaintiff was failing to exercise reasonable care for his own safety. 22 Another issue raised by the first defendant falls for consideration of the concept of "obvious risk". Section 5M of the Civil Liability Act 2002 defines "an obvious risk" to a person who suffers harm as being a risk which "in the circumstances would have been obvious to a reasonable person" in the position of the person injured. Accepting that the risk of slipping as the plaintiff went about his work was a risk that ought to have been obvious to him, it does not follow without more that a finding to this effect exculpated the first defendant should I find it to have been negligent in exposing the plaintiff to that risk. I am certainly not persuaded by the evidence that has been introduced that the plaintiff in undertaking the work he was required to do by his employer voluntarily chose and agreed to accept the risk of harm. Indeed, I do not understand counsel for the first defendant to have submitted that the claim against the first defendant should fail because of the nature of the risk to which the plaintiff was exposed in traversing the rounded steel surfaces. This brings me to consider the case against the various defendants.

[27]

The case against the first defendant 23 Put shortly, it is the plaintiff's case against the first defendant that it had a responsibility for the work being done in loading the ship which extended beyond the activities of the stevedores and which covered the activities of the securers. It is the plaintiff's contention that the first defendant owed to the plaintiff a duty of care, having regard to its responsibility for the system of work in the ship's hold, and that the first defendant was in breach of that duty. Mr Kelly of Senior Counsel, for the plaintiff, submitted that the principles expressed in the much considered decision in Stevens v Brodribb Sawmilling Co. Pty Limited (1985-86) 160 CLR 16 had application in this case. Mr Morris contended otherwise for the first defendant. Mr Morris submitted that this case is not similar to Stevens v Brodribb Sawmilling Co. Pty Limited but, rather, it is analogous to Boral Rooftiles Limited v O'Brien (unreported, NSWCA, 15 December 1994) and to Samsung Electronics Australia Pty Limited v Macura [2005] NSWCA 386. Mr Morris submitted that the fourth defendant was performing a discrete operation and that it was the fourth defendant which was responsible for the system of work of securing the load. 24 Mr Morris found support for his contention in the submissions of Mr Miller, for the fifth defendant. Mr Kelly, on the other hand, found support for his submissions in the submissions advanced on behalf of the fourth defendant by Dr Bell of Senior Counsel. 25 The competing submissions call for an analysis of the facts. 26 The unsafe system of securing which was in place when the plaintiff was injured was replaced shortly after his accident by the system employed elsewhere prior to the plaintiff's accident, the system referred to in evidence as "securing-as-you-go". This enabled the securers to strap the cargo into position, working from the face of the load. The need under the new system to stand on top of the coils and to step from coil to coil was eliminated. Instead, those doing the securing work were able to work either from a platform in the form of a steel cage on a trolley or a steel plate with a fenced edge and with ladder access. Hence, the system put in place after the plaintiff's accident eliminated the risk to which the plaintiff was exposed and which was causative of the harm he suffered. 27 I am satisfied on the evidence that the system of work introduced at Port Kembla after the accident has proved to be satisfactory, and I am satisfied that the system as introduced afforded a practicable alternative system to the one that was in place when the plaintiff had his fall. It does not follow from this that any of the defendants was necessarily in breach of a duty of care towards the plaintiff in not having the present system in place in July 2001. 28 Apart from the system subsequently introduced, the evidence does not establish any other effective safety measure that could have been introduced prior to the plaintiff's accident. There was no evidence to suggest that the work the plaintiff was doing in July 2001, with the system then in place, could have been done from a platform. The nature of the plaintiff's work and the movement he was required to undertake was such that the use of a safety harness was not practicable. The use of safety boots was not an effective measure to prevent falling. The placement of mats on top of the rounded coils was not an effective safety device either. The plaintiff has failed to prove against any of the defendants that there was a reasonably practicable safety measure that was likely to have been effective which could have been introduced prior to his fall, unless it be the "secure-as-you-go" method that eliminated the need to work and walk on the coils. The question arises however as to whether any one of the defendants was negligent in failing, prior to 13 July 2001, to put in place that system of strapping and working from platforms which was introduced later in 2001. 29 In essence, the submission made by Mr Morris was that the first defendant wanted to introduce the new system of strapping as you go from the time Mr Caruana was appointed but that the first defendant's efforts to introduce this method were frustrated by resistance from the subcontractors. 30 Mr Caruana said that as early as 1997 he spoke to Mr Fairweather of Storey and Keers and to "Sam" of Garnocks about the introduction of "securing-as-you-go". According to Mr Caruana, the response from both representatives of the subcontractors was one of opposition, concern being voiced that the change in system would lead to the introduction of competition in the port and loss of work for these subcontractors. Mr Caruana said that he brought the subject up three or four times but with the same negative response on each occasion. 31 Mr Caruana said that things began to change when Mr Beesley and the fourth defendant began operations at Port Kembla. The fourth defendant began to offer services to shippers on the outer berths in 1998 or 1999, and after the fourth defendant commenced a securing service at Port Kembla, Mr Beesley then introduced the multi-skilled service referred to earlier. According to Mr Caruana, the routine when the fourth defendant was providing services in relation to a particular vessel was that the first defendant provided the stevedores and the fourth defendant lashed and secured the cargo. 32 Mr Caruana said that late in 1999 he discussed with Mr Beesley the proposal of introducing the secure-as-you-go method but Mr Beesley responded that the union would only allow him to introduce a multi-skilling system but not a secure-as-you-go system. According to Mr Caruana, Mr Beesley voiced the explanation for this that the union were concerned about having to do day shift, afternoon shift and night shift (T 279). 33 Mr Caruana said he had several discussions with Mr Beesley about introduction of the secure-as-you-go method and received the same response, to the effect that the union was unwilling and that the major obstacle was the prospect of the introduction of three shifts. 34 It is clear that the secure-as-you-go system, eliminating the need for those engaged in the securing operation to move about on top of the coils and permitting them instead to work from platforms, was introduced at Port Kembla shortly after the plaintiff's accident. 35 The plaintiff's accident led to the preparation of a "Significant Safety Occurrence" report. The report referred specifically to the plaintiff's accident and identified as a "root cause" the likely reason for the plaintiff having slipped being the requirement that he walk on coils. Avoidance of this was recommended, and the report noted as corrective action: "Secure 'as we go' - alternative securing method reducing the need to work at height is being introduced." 36 That report is one of the documents in Exhibit D. Its preparation appears to have preceded by some days the ICAM inquiry, to which I referred earlier. The Significant Safety Occurrence report identified Mr Caruana as a contact person but the evidence does not establish that Mr Caruana prepared the report. Mr Blasi attended the ICAM meeting in the interests of the first defendant and, according to him, the plaintiff's accident created impetus for the change in system. He said that he attended the meeting with a mandate from the first defendant to change to the new system. The fourth defendant was represented at the meeting, as was Storey and Keers. Mr Blasi said that the meeting lasted some hours and decided that the new system should be introduced subject to consultation with the workforce consultative committee made up of workforce representatives. Mr Blasi said that it was not correct to conclude that a decision had been made to introduce the new system before the ICAM meeting. I consider that Mr Blasi was a truthful witness but his recollection as to the sequence of events does not accord with the sequence suggested in the Significant Safety Occurrence report. 37 In any event, it is clear that the plaintiff's accident accelerated the introduction of the new system and the question arises as to whether that system ought reasonably to have been introduced earlier. It should not have required the plaintiff's accident to draw attention to the risk to which securers were exposed when working and walking on coils, particularly when stacked four high as the system in place at the time of the plaintiff's accident contemplated. Mr Blasi said (T 452) that he was not comfortable having the hazard of walking on coils "in our workplace". That was his reaction in 2000. He said he would have discussed this with Mr Caruana but it does not seem to me that Mr Caruana was influenced to change the system to secure-as-you-go because of concern for the safety of securers. His concern was to make the system more efficient and productive. At the time of giving evidence in this Court, Mr Caruana acknowledged that he had a very hazy recollection of the operation of the secure-as-you-go system. He was unable to recall whether he had a view as to the safety of the alternative strapping system when he saw it in operation at Western Port. He said it was his cadet's role at Port Kembla to organise safety meetings, and it does not appear to have been Mr Caruana's perception that the first defendant had a responsibility extending to the safety of the securers as they went about their work on the coils placed in vessels by the first defendant's stevedores. 38 Did the attitude of workers at Port Kembla prevent the earlier introduction of the safer method? Mr Morris and Mr Miller invited the finding that they did. The submissions of Mr Kelly and of Dr Bell were to the contrary.

[49]

Q. And simply the point I am asking you to agree with, to the extent those issues had arisen prior to the introduction of the signode system a sensible way of proceeding had been worked out through cooperation on all sides? A. That's correct." (The reference to the signode system is a reference to the "secure-as-you-go" system.) 43 Dr Bell submitted that if it was the case that earnest attempts to introduce the secure-as-you-go method had been frustrated by union resistance before the plaintiff's accident, there would have been documentary support for this, and no such evidence has been produced. Likewise, it might have been expected that if there were many discussions between Mr Caruana and representatives of the subcontractors, including Mr Beesley, documentary support reflecting the first defendant's proposals and the subcontractors' negative responses would have been expected to come into existence. There is considerable force in this submission and no such documentation has been produced in the first defendant's case. 44 There has been much criticism of the evidence of Mr Caruana by Mr Kelly and by Dr Bell. I do not accept such submissions as were made inviting me to conclude that Mr Caruana was an untruthful witness, but there were areas in which his recollection was hazy, and, on the question as to the explanation for the delay in the implementation of the new system, Mr Caruana's recollection was not assisted by any relevant documentation. In the absence of any records to assist him, I conclude that his recollection about this matter of history was, understandably, imperfect and, indeed, unreliable. 45 Mr Blasi gave evidence of being aware of consideration being given towards the introduction of the securing-as-you-go method, and he said he was aware "that the process had been ongoing for as long as I can remember" (T 426). He participated in discussions with the masters of vessels who were critical of the system in place at Port Kembla (T 427-428). I referred earlier to Mr Blasi attending the ICAM meeting after the plaintiff's accident "with a mandate for change" but events demonstrate that that attitude was shared by others as at July 2001. His evidence overall does not assist me on the issue raised by Mr Caruana concerning workforce resistance to changing to "secure-as-you-go" preventing its earlier introduction. 46 The question arises as to why the first defendant did not introduce the new system earlier if the explanation was not to be found in the responses of parties as indicated by Mr Caruana. Dr Bell has suggested a number of possible explanations. They include the possibility that the changeover was not perceived to be a pressing matter. The information memorandum prepared for contemplated sale purposes of the stevedoring enterprise in September 2001 (Exhibit 4(4D)) contained the following factual assertion: "BHP Stevedoring's Port Kembla operation in particular, has made substantial productivity improvements over the last two to three years under local EBA arrangements and uses team work techniques extensively." 47 Moreover, the first defendant had equipment suitable only for the old system which, if it was not employed in it, was no longer useful to the first defendant. Mr Blasi said (T 458): "We had turnbuckles, we had all sorts of gear that we would keep stock of and I recall after introducing the securing-as-we-go which - you know, which took some time, that we - at the end of - after we introduced that system, we still had a big stock of wire that we had to dispose of." 48 There was no evidence of any analysis of the perceived financial benefits of changing the system. 49 I have not been assisted by hearing from Mr Beesley, and this is to be considered when looking at the issues that arise from Mr Caruana's evidence and when assessing the case against the fourth defendant. Mr Beesley has not been called to challenge Mr Caruana's account of the conversation of which evidence was given. Nevertheless I must assess the evidence which has been introduced. 50 Having reflected upon the competing submissions on the issue, I am not satisfied by the evidence in this case that workforce attitudes prevented the first defendant from introducing the secure-as-you-go method at Port Kembla prior to the plaintiff's accident. 51 Was there a duty of care owed by the first defendant to the plaintiff, bearing in mind that the plaintiff was the employee of the fourth defendant? 52 The employer-employee relationship as between the plaintiff and the fourth defendant did not necessarily prevent a duty of care arising in the first defendant: see TNT Australia Pty Limited v Christie (2003) 65 NSWLR 1 and Stevens v Brodribb (supra). 53 There are features of this case which point to the first defendant's overall control of the operations of loading and securing, of responsibility for the creation of the risk and of responsibility being assumed for matters of safety:

[60]

Mr Blasi was working on the "Cape Conway" at the time of the plaintiff's accident and was described in the Maritime Safety Authority report (part of Exhibit E) as the person in charge when the accident happened. Mr Blasi said as to this that he was not aware he was in charge that day. He said that the first defendant did not have a very good system in relation to designating the person in charge but he agreed that generally during day time operations either he or Mr McNeil would have that role: T 456. 54 What Mason J said in Stevens (supra) at 31 is often cited, and this is another occasion for doing so: "The interdependence of the activities carried out in the forest, the need for co-ordination by Brodribb of those activities and the distinct risk of personal injury to those engaged in the operations, called for the prescription and provision of a safe system by Brodribb. Omission to prescribe and provide such a system would expose the workers to an obvious risk of injury. Although the obligation to provide a safe system of work has been regarded as one attaching to an employer, there is no reason why it should be so confined. If an entrepreneur engages independent contractors to do work which might as readily be done by employees in circumstances where there is a risk to them of injury arising from the nature of the work and where there is a need for him to give directions as to when and where the work is to be done and to co-ordinate the various activities, he has an obligation to prescribe a safe system of work. The fact that they are not employees, or that he does not retain a right to control them in the manner in which they carry out their work, should not affect the existence of an obligation to prescribe a safe system. Brodribb's ability to prescribe such a system was not affected by its inability to direct the contractors as to how they should operate their machines." 55 It seems to me that the like considerations arise here. There was an interdependence of the activities being carried out in the hold and there was the need for coordination by the first defendant of those activities. The way in which and the height to which the first defendant placed the coils to be secured inevitably required the plaintiff to work in a position where there was a risk of falling unless there was a system in place to address that risk. 56 I accept the submissions advanced by Mr Kelly and by Dr Bell that the circumstances of this case are to be distinguished from the circumstances of Boral Rooftiles Limited v O'Brien (supra) and in Samsung Electronics v Mercura (supra). In the latter case, Gzell J, with whose judgment the other members of the court agreed, referred at [40] to the absence of a need in Samsung to coordinate various activities and that it was that need in Stevens "that lies at the heart of the rationale" for the existence of the duty of care found in Stevens. An observation to similar effect might well have been made in Boral Rooftiles Limited v O'Brien, namely that there was absent in that case the need to coordinate activities in the same way as was considered necessary in Stevens. 57 I consider that having regard to the nature of the activities which were occurring at the time of the plaintiff's accident, and the first defendant's role in those activities, that it owed to the plaintiff a duty to exercise reasonable care for his safety, and this involved the need to provide a safe system and place of work. This the first defendant failed to do. 58 I am satisfied on the balance of probabilities that had the first defendant applied itself diligently to the introduction of the secure-as-you-go system it could have had that system in place prior to the plaintiff's accident, and this would have avoided the harm that he suffered. It seems to me, having regard to the nature of the risk and the exposure to harm that it presented, that the failure of the first defendant to change the system prior to 13 July 2001 constituted negligence on its part.

[61]

The case against the fourth defendant 59 The employer-employee relationship that existed between the fourth defendant and the plaintiff carried with it a non-delegable duty: Kondis v State Transport Authority (1984) 154 CLR 672. An employer who sends his employee to work on the premises of another person is not released from that duty: see Smith v Austin Lifts Limited (1959) 1 WLR 100 and in particular the judgment of Lord Denning at 117; Bourke v Victorian Workcover Authority (1999) 1 VR 189 at [41]-[42]; Glynn v Challenge Recruitment Australia Pty Limited [2006] NSWCA 203 at [45]. 60 Dr Bell referred to the judgment of Winneke P in Bourke v Victorian Workcover Authority, cited in Glynn v Challenge Recruitment Australia Pty Limited, and I extract the following passage from his Honour's judgment in Bourke at [41]-[42]: "[41] …True it is that, where an employer sends his employee to work at or in premises occupied or controlled by another, that occupation and control by another person may be a relevant fact in considering whether the employer had been in breach of his own independent duty to the employee. But the fact that the employee's work is required to be done on premises of another does not absolve the employer of his duty. Its impact upon whether he has breached his duty will depend upon all the circumstances. As Lord Denning said in Smith v Austin Lifts Ltd . [1959] 1 W.L.R. 100: Notwithstanding what was said in Taylor v Sims & Sims [(1942) 167 L.T. 414; [1942] 2 All E.R. 375], it has since been held, I think rightly, that employers who send their workmen to work on the premises of others cannot renounce all responsibility for their safety. The employers still have an overriding duty to take reasonable care not to expose their men to unnecessary risk. They must, for instance, take reasonable care to devise a safe system of work...; and, if they know or ought to know of a danger on the premises to which they send their men, they ought to take reasonable care to safeguard them from it. What is reasonable care depends, of course, on the circumstances… (See also Wilson v Tyneside Window Cleaning Co. [1958] 2 Q.B. 110 at 121-2 per Pearce L.J.; Sinclair v William Arnott Pty. Ltd. (No. 2) (1963) 64 S.R. (N.S.W.) 88 at 91-2 per Walsh J.) [42] One can conceive of a multitude of circumstances where workmen are sent to work upon premises controlled by others in which the impact upon the discharge of the employer's duty will vary. It will depend no doubt upon such matters as the employer's opportunity to inspect the premises, the length of time the employer has put his employees to work on the premises, the awareness in the employer of the danger, his capacity to shield his employees from the danger and various other factors…" 61 The evidence establishes that Mr Cox was aware of the slipping hazard and that he had complained about it. I referred to his evidence to this effect earlier. Mr Beesley had a responsibility to acquaint himself with the working conditions of the plaintiff in carrying out securing work. The conclusion is inescapable that Mr Beesley would have been aware of the need for the securers to work and walk on the coils. 62 What steps did the fourth defendant take to discharge its duty of care to the plaintiff? It published a document headed "Safe Operating Procedures" (Exhibit L). This referred to the precautions to be taken by employees in general terms. For instance, employees were cautioned: "Watch where you walk, working areas can never be completely free of hazards." Mr Cox gave evidence (T 190) that he would speak to fellow employees on safety issues. He said he told them of the need to be careful working at height and to wear shoes that had good tread on them. He was not aware that the fourth defendant ever trialled nets as a safety feature, but he did not think that that would be a practicable measure nor did he consider that harnesses or non-slip mats would be practicable. 63 Nevertheless, there is no evidence that the fourth defendant adopted any measure to minimise the danger to which the plaintiff was exposed on the occasion of his fall. Notwithstanding the risk of harm presented, the fourth defendant continued to send its employees to work under an unsafe system at an unsafe workplace on top of the coils for a lengthy period prior to the plaintiff's fall. 64 The evidence of Mr Caruana was that Mr Beesley told him that the union was unwilling to face the prospect of the introduction of three shifts. I referred to that evidence earlier and to the significance of the failure of Mr Beesley to give evidence. Whilst Mr Caruana's evidence does not persuade me that the secure-as-you-go system, with its improved safety benefits, could not have been introduced before the plaintiff's accident, when looking at the case against the fourth defendant it had a duty to take reasonable care not to expose its employees to unnecessary risks. Considerations of safety for its employees, including the plaintiff, required that the fourth defendant do what it could to see that the secure-as-you-go system was implemented since this would eliminate the necessity for the fourth defendant's employees to be working on and walking on the coils at height. Mr Caruana's recollection was that Mr Beesley never expressed concern to him about employees of the fourth defendant being required to work at heights. Mr Beesley did not respond to this in the Court. There was evidence of his being seen near this Court during the hearing but no explanation was given for his not being called. I draw the inference that his evidence would not have advanced the fourth defendant's case and I accept what Mr Caruana said about the absence of complaint from Mr Beesley. 65 Not only was there no evidence from Mr Beesley, but I did not hear from any other persons at management level whose names were mentioned in evidence. I refer to Mr Willebrands and to Mr Graham. Nor was there any evidence of concerns about the workplace and the work system being expressed or being recorded in writing at management level by the fourth defendant. 66 I see no reason to conclude that had Mr Beesley, or some other figure at management level with the fourth defendant, made earnest and persistent representations to Mr Caruana to bring about an earlier change in the system, such representations would not have been influential. 67 In any event, no employer is entitled to continue indefinitely to send his or its employee to a place and system of work that he knows or ought to know to be unsafe. On the contrary, the employer owes his employee the duty to ensure, so far as is reasonably possible, that he does not do so. Here, the risk presented was an ongoing one, and in the absence of change prior to 13 July 2001, and in the absence of any effective safety precaution, it seems to me that the fourth defendant ought not to have permitted its employees to work on top of coils stacked four high. 68 I am satisfied that the fourth defendant was negligent in the circumstances and that its breach of duty was also causative of the harm suffered.

[67]

(v) On 5 October 2000 there was an e-mail from Mr Beesley to Mr Caruana enclosing a document described as "a proposal" expressed as being "between BHP T & L Stevedoring and [the fourth defendant]." The accompanying e-mail described this document as "our proposal for stevedoring and securing services with BHP T & L Port Kembla" and it set out rates, concluding: "Appreciate you casting your eagle eye over the document and advise me of your comments." 72 There is no evidence that the "Stevedoring Services Subcontract" document was ever signed or, indeed, that any other document was signed pursuant to which the fourth defendant provided securing services at Port Kembla. 73 What happened in practise was that the fourth defendant provided men to perform securing services when requested to do so. Mr Cox gave evidence to this effect (T 195-196), and he said that the request for men would come either from Mr Graham or Mr Blasi. The fourth defendant sent invoices for the services provided, and the invoices expressed charges for those services at hourly rates. Copies of these invoices comprised Exhibit 10(4D), and the invoices cover the period from 10 July 2000 to 1 August 2001. Each of the invoices is addressed to the first defendant. 74 Whilst the documents found in Exhibit H evidence negotiations between the fourth defendant and the fifth defendant prior to the plaintiff's accident, there was no agreement made between these parties, and I find on the evidence that the fourth defendant provided services for the first defendant when requested and at hourly rates. The work done by the fourth defendant was work which was done for the first defendant at the first defendant's request. I do not find that there was any contract as between the fourth defendant and the fifth defendant. 75 Mr Caruana came to be employed as the stevedoring manager at Port Kembla having been engaged by Mr Martin, and the letter referring to his engagement became Exhibit 1(1D). This stated that "As an officer of BHP Transport Limited, you will be an employee of Broken Hill Proprietary Company and subsidiaries." Following his appointment, Mr Caruana reported to Mr Martin and to Mr Green, both of whom appear to have provided their services to the fifth defendant. 76 Mr Caruana was cross examined by Mr Miller as to his function at Port Kembla (T 387): "Your function was to manage the operations of BHP Stevedoring Port Kembla? A. Correct.

[111]

The issue of apportionment as between the first defendant and the fourth defendant 85 Each of these defendants has cross claimed against the other, claiming (inter alia) contribution pursuant to s 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946. For this reason, and also because of the provisions of s 151Z(2) of the Workers Compensation Act 1987, as considered in Gordian Runoff Limited v Heyday Group Pty Limited [2005] NSWCA 29, it is necessary for an apportionment of responsibility to be made. It is necessary that there be an apportionment such as reflects the respective shares of each tort feasor for the damage caused. This involves consideration of the degree of departure of each of these defendants from the standard of care of the reasonable person and of the relative importance of the acts of the parties causing the damage: see Podrebersek v Australian Iron & Steel Pty Limited (1985) 59 ALJR 492 at 494. Section 5(2) of the 1946 statute expressly requires that in proceedings for contribution I determine upon an apportionment which is "just and equitable, having regard to the extent of the responsibility" of each defendant for the harm suffered. 86 Each of the defendants contended in the event that it was found to be liable that the major share of fault should be apportioned to the other defendant. Mr Kelly submitted that the major share of responsibility should be apportioned to the first defendant. 87 It is important that the apportionment made reflects the significance of the non-delegable duty of care owed by an employer but at the same time that it reflects the extent of the responsibility of the first defendant for the conditions of the workplace where the plaintiff was required to perform his duty. 88 I have concluded on the findings I have made that it is appropriate to apportion fifty percent of the responsibility to the fourth defendant and fifty percent of the responsibility to the first defendant. 89 That apportionment will, of course, be reflected in the judgments to be entered.

[112]

The claim against the insurer 90 The third cross claim in these proceedings is a cross claim brought by the fourth defendant against Employers Mutual Indemnity (Workers Compensation) Limited ("the insurer"). The claim is based upon a policy of insurance which it is contended was issued by the insurer to the fourth defendant. The claim as pleaded is expressed to include a claim to be indemnified for any amount recovered by the plaintiff against the fourth defendant and also for any amount recovered by the first and/or fifth defendants pursuant to the Law Reform (Miscellaneous Provisions) Act 1946. There is a further claim made for indemnity in respect of any amount recovered from the fourth defendant under contract. 91 The existence of the policy was admitted on the pleadings and so too was the fourth defendant's right to indemnity for any liability to the plaintiff in negligence arising from any breach of its duty of care as an employer. What was denied by the insurer was any claim to be indemnified for liability arising from a breach of contractual obligations undertaken. 92 What the insurer disputed in essence was any liability to the fourth defendant arising because it had agreed to indemnify any other defendant under a contract, if in fact it was found to have done so. 93 I referred earlier to the document which had been prepared in the fifth defendant's legal department. It was the indemnity provision in that document which triggered the issue on the cross claim between the fourth defendant and the insurer. 94 Had the fourth defendant assumed some contractual obligation to indemnify, such an obligation would not be one to which the form of policy issued by the insurer would respond. 95 The relevant provision of the policy is to be found in cl 3 of Exhibit 14(4D): "3 What the Insurer is liable for The Insurer will indemnify the Employer against all of the following sums for which the Employer becomes liable during or in respect of the period of insurance: (a) compensation that the Employer becomes liable to pay under the Act to or in respect of any person who is a worker of the Employer (including any person to whom the Employer is liable under section 20 of the Act), (b) any other amount that the Employer becomes liable to pay independently of the Act (but not including a liability for compensation in the nature of workers compensation arising under any Act or other law of another State, a Territory or the Commonwealth or a liability arising under the law of another country) for any injury to any such person (not including liability in respect of an injury, suffered by a person other than such a worker, arising out of any rescue or attempted rescue), (c) costs and expenses incurred with the written consent of the Insurer in connection with the defence of any legal proceeding in which any such liability is alleged. The Insurer will not indemnitfy the Employer for the Employer's liability for GST payable on the settlement of a claim." 96 It is well settled that a policy of the kind presently under consideration does not indemnify an insured for a liability arising from a contractual obligation to indemnify: see Nigel Watts Fashion Agency Pty Limited v GIO General Limited (1995) 8 ANZ Ins Cas 61-235, recently considered in Multiplex Constructions Pty Limited v Irving and Ors [2004] NSWCA 346. See in particular the judgment of Kirby P (as he then was) in Watts at 75,642. 97 However, I have determined that there was no agreement between the fourth defendant and the fifth defendant, and the fourth defendant undertook no contractual obligation to indemnify the first defendant. 98 Here, it is common ground that the insurer's policy responds to liability found in the fourth defendant towards the plaintiff as its employee. This liability is to be reflected in the judgments eventually to be entered.

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The assessment of damages 99 Since the plaintiff has succeeded against his employer and against the first defendant, it will be necessary to make assessments of damages under the regime provided for in the Workers Compensation Act 1987 and under the regime provided for in the Civil Liability Act 2002. Before proceeding to the assessments, it is necessary to review the evidence for the purpose of determining what injuries the plaintiff sustained, what disabilities have ensued and how they have affected his way of life. 100 No medical practitioner has been called to give evidence but many, many reports have been tendered in evidence, coming from a large number of doctors, some of whom have been treating doctors and some of whom have been qualified for the purposes of this case. I do not propose to review the medical evidence exhaustively but rather to focus on the reports of doctors where those reports have been referred to by counsel in their addresses. 101 I commence by summarising the plaintiff's evidence on the issue of damages. 102 The plaintiff was born on 18 July 1959, so that he was nearly forty-two years of age when the accident happened and he is presently nearly forty-eight years old. He is a single man. He did have a relationship with a woman in Bali. The relationship began in 1999 and the plaintiff believed that this relationship culminated in a ceremony of marriage in February 2003. However, the relationship broke up shortly after that ceremony and the plaintiff has since discovered that it was not a valid ceremony at all. Since then the plaintiff, apart from visits to Bali, has lived with his mother as a single person. 103 Prior to the accident, the plaintiff was a casual worker who took time off and travelled a great deal, mainly to Bali. He was a keen board rider and he also engaged in snow skiing. 104 The plaintiff experienced some health problems before the accident. He fractured a bone in his foot working at Garnock Engineering in 1980 and, after taking up employment on the waterfront in about 1991, he injured his knee, requiring a knee reconstruction procedure in 1995. Earlier in his lifetime he had also had some back problems. He fractured an ankle in 1998. Problems with the ribs and the lower back led to him having several myelograms and a discogram in the 1990s. He said that his knee was "playing up a bit" in 2005 and 2006. 105 In any event, he was working as a securer at the time of his accident and for years previously. I consider the work he was required to do in that capacity was reasonably strenuous. 106 The plaintiff said that on 13 July 2001 he injured his chest, his ribs and his back and there was also injury to his head. He is not clear whether he lost consciousness in the fall but he remembers being placed on a spinal board and in a neck brace before being lifted out of the hold of the the ship in a cage. He said he was terrified at the time. He was in Wollongong Hospital for thirty-three days. 107 At the time of discharge he said he was experiencing pain in his left shoulder. His problems persisted thereafter in the spine, the ribs and the chest. 108 The plaintiff said he has remained under the care of his local doctor, Dr Vickers, who he sees every ten or eleven days, and Dr Vickers prescribes medication for him. 109 The plaintiff said he underwent surgery on his spine in August 2003, the surgeon being Mr Sears. The surgery rendered the spine more stable. 110 Further surgery was considered to address instability in his rib cage, but eventually he decided not to undertake any procedure directed towards addressing that problem. 111 Apart from seeing Dr Vickers, the plaintiff has been seeing Dr Davidson, a specialist in pain management, and he also sees a psychologist, Ms Densley, and a psychiatrist, Mr Davies. 112 The plaintiff complained that he has trouble with his sleep and it is pain that wakes him up. There are ongoing problems in the areas earlier mentioned. The plaintiff suffers from depression. 113 The plaintiff said he cannot lift more than ten kilograms but he can walk for one to one-and-a-half hours at a time, and he does letterbox drops in his present work. He still visits Bali. 114 The plaintiff was off work following his fall until March 2002 when the fourth defendant offered him light duties. These were more or less of a clerical nature, and he attended work with the fourth defendant until January 2003. He said that he worked four hours per day up to six, and even seven, days per week. He felt able to continue and was distressed when his employer retrenched him. He has been on workers' compensation benefits ever since. 115 The plaintiff said he was fit to resume some work in the middle of 2004 after recovering from the fusion procedure which Mr Sears performed in August 2003. He found some part time work locally, working for an estate agent who is a friend. He is only working for eight hours per week. 116 The plaintiff said that his mother has looked after him and has assisted him in various respects. It will be necessary to consider this assistance more closely when considering the claim brought against the first defendant in the nature of a Griffiths v Kerkemeyer claim. 117 This brings me to a review of the medical evidence. 118 The discharge summary from Wollongong Hospital reveals that the plaintiff was admitted to that hospital on 13 July 2001 and was discharged on 14 August 2001. He was diagnosed whilst in hospital as having fractured ribs and also to have sustained a fracture of the spine at T7. Fractured scapulae were also detected. The discharge summary records that the plaintiff was treated conservatively. 119 There are two reports in evidence from Dr Vickers dated 28 June 2005 and 28 May 2007. Dr Vickers saw the plaintiff after he was discharged from hospital in August 2001, and on 28 June 2005 Dr Vickers reported that since August 2001 the plaintiff had required large doses of analgesics notwithstanding his treatment, including the spinal fusion. Dr Vickers noted in June 2005 ongoing physical and emotional problems. He reported: "I believe Gary's physical impairments are real and are aggravated by physical activity such as lifting/prolonged sitting/standing." 120 In his more recent report of 28 May 2007 Dr Vickers recorded that he continued to see the plaintiff on a regular basis "for review, medication and counselling". Dr Vickers noted that the plaintiff had made little progress systematically or functionally and that he was periodically troubled with pain in the right chest wall and muscle spasm. He further noted that the plaintiff was suffering from sleep disturbance, anxiety and depression. However, Dr Vickers was not alone in indicating the possibility of improvement when the plaintiff's case is behind him: "I believe Gary will be able to focus more on the future and dwell less on his injuries after his prolonged claim has been satisfactorily completed." 121 Mr Sears is a spinal neurosurgeon, and the plaintiff came under his care in February 2002. He noted that the T7 crush fracture also involved some compression of T8 and had created a thirty degree kyphotic deformity between T6 and T9. Mr Sears concluded that the site of the plaintiff's pain was below the level of the crush fracture and was probably due to spinal imbalance rather than the fracture itself. On 20 August 2003 Mr Sears performed "a posterior vertebrectomy at the T7 level to realign and stabilise his post traumatic kyphosis". On 31 October 2003 Mr Sears reported that the plaintiff recovered well from the operation, and on 22 March 2004 Mr Sears said he was optimistic that the plaintiff would be able to return to light physical work eventually. In the last of his reports, dated 10 June 2004, Mr Sears wrote: "His thoracic fusion is almost certainly solid now. There is apparently residual soft tissue pain but I think the best thing for him now is to try to resume his previous activities in work and recreation. Ian Davidson would be the best person to advise on the overall effects of his injuries and his work capacity. From the point of view of the thoracic fracture and fusion, there is no need to place any specific restrictions on him now." 122 A number of reports have been tendered from Dr Davidson, the earliest of which is dated 19 November 2001. When the plaintiff saw Dr Davidson he was complaining of chest pain and pain in the sternum and the shoulders. He also complained that his sleep was disturbed when he was awakened by pain. Dr Davidson formed the opinion that the plaintiff had multiple musculoskeletal problems with some ongoing post traumatic stress systems. He considered that the plaintiff would benefit from a supervised exercise and hydrotherapy programme and that a TENS machine should be trialled. Dr Davison saw the plaintiff on a number of occasions in 2004, and he prepared a report for medico-legal purposes on 30 June 2005, from which I quote: "He has had extensive treatment, initially an outpatient rehabilitation program, which involved hydrotherapy, exercise, a trial of alternate pain relieving modalities and support of a clinical psychologist for his persistent posttraumatic stress, depression and anxiety… His main complaints of pain are still related to his right thoracic spine and chest wall at the site of his surgery and with the rib dislocation. He has minor intermittent symptoms at his right shoulder…" 123 Dr Davidson expressed this prognosis: "Unfortunately Mr Corbett's progress is not good even with the hope for improvement in the management of his persisting depression and anxiety. His ongoing chronic pain problems have been resistant to a comprehensive rehabilitation programme over a prolonged period of time. I think it unlikely that he will achieve a significant functional improvement." 124 Finally, on 5 June 2007 Dr Davidson reported that he did not think that there were realistic rehabilitation interventions "likely to ameliorate Gary's situation". Dr Davidson noted that the plaintiff was continuing to see Dr Davies for his depression and that he was also continuing to have psychological support from a psychologist. 125 Dr Davies reported to the fourth defendant's insurer on 10 September 2005 that he had been seeing the plaintiff on referral from Dr Vickers. At that point of time he had seen the plaintiff three times. Dr Davies diagnosed "chronic pain disorder associated with both psychological factors and a general medical condition and the prognosis at this point is for only slow change." Dr Davies noted that the plaintiff was only working eight hours per week at the time of the report. He considered that the plaintiff had not reached his full potential for psychological recovery and that "with stability of his psychiatric state he should be able to progressively increase" his working hours. 126 Dr Horsley saw the plaintiff at the request of the plaintiff's solicitors on 9 March 2006 and prepared his report the same day. Dr Horsley's area of practice is that of occupational health, rehabilitation and counselling. The view of the doctor at the time of furnishing the report was that the plaintiff was working at capacity whilst then working only eight hours per week. It was the doctor's view that the plaintiff's options for reemployment would be extremely limited if he lost the position in the real estate office. 127 Ms Densley reported in an undated response to a letter from the plaintiff's solicitors that the plaintiff first consulted her in November 2001. Ms Densley said that the plaintiff consulted her approximately thirty times, complaining of a variety of psychological symptoms. Ms Densley opined that the plaintiff was suffering from a post traumatic stress disorder and, when asked, declined to express a view as to the plaintiff's capacity for work. Ms Densley expressed some optimism as to the plaintiff's prognosis: "Mr Corbett's PTSD has persisted for 4 years, despite both medication and psychological treatment, which is not a good prognostic indicator. I believe that the ongoing legal matters and treatment delays may have aggravated his psychological state. Mr Corbett has become entrenched in matters regarding his compensation case and many perceived injustices (e.g. such as an extensive delay in approval for his operation, being on the cusp of changes in the WC legislation). I believe that once settlement takes place this may enable Mr Corbett to refocus his energies in a more constructive manner. I would expect that his level of anxiety, stress and depressive symptoms would be likely to reduce, even if he does not fully recover." 128 Amongst the medical reports tendered by the first defendant were reports from Associate Professor Dan dated 19 June 2003 and 20 October 2004. Dr Dan concluded in the later of those two reports that the plaintiff appeared to be "highly anxious" and "to be somewhat depressed" with "some paranoiac ideation". The report continued: "As a consequence of his psychological state he is focused on the discomforts which inevitably must accompany major surgery such as he has undergone. The significant benefit of having a very stable spine does not appear to have made an impact upon his assessment of his own disability. Notwithstanding that, I think that he has had an excellent outcome from the spinal stabilisation." 129 Dr Lovell furnished two reports tendered in the interests of the defendants. These reports are dated 19 June 2003 and 25 October 2004. Dr Lovell thought that the plaintiff was suffering from an adjustment disorder with depressed mood secondary to chronic pain. Dr Lovell wrote: "His complaints are reasonable, given the extent of surgical intervention. He is unlikely to benefit from antidepressant medications. There is no impairment in his ability to concentrate and, generally, psychological factors do not interfere with his work capacity, although fatigue and the side effects of the narcotic analgesics may impact on work performance." 130 The most recent reports tendered in the interests of the defendants were those of Dr Wilcox dated 29 March 2006 and of Dr Schutz dated 28 May 2007. 131 Dr Wilcox wrote on 29 March 2006: "Although Mr Corbett now says that he has been experiencing low back pain since the thoracic spine operation the contemporary documentation failed to confirm this factor. Indeed when he saw Dr Burke on 05/10/2004 i.e. 14 months post-operative Mr Corbett not only specifically said that he had sustained no lower back or lower limb injuries in the accident but he had had no pain in the lower back recently. In addition, he stated that 'the lower back has been stiff and painful since the 1980's.' The present clinical examination found no objective abnormal signs. There was some limitation in movement but this was stated to be because of other factors. The limited rotation has nothing to do with his lower back as most of this takes place through the upper lumbar spine and the thoracic spine. The minor muscle wasting of the right quadriceps accords with the previous knee reconstruction and has nothing to do with the events of 13/07/2001. It is reasonable to conclude that any low back symptoms that he may be experiencing are the product of degenerative change and have no connection with the 2001 accident. Taking all the medical evidence into account Mr Corbett's main ongoing problem is abnormal pain/illness behaviour. If this could be eliminated and his attitude became one of healthy optimism he will be able to function much better. The fact that he did return to work on light duties relatively soon after the accident and before the major surgery must indicate that he could have been more rehabilitated into the workplace. Instead he says that he is only able to do eight hours a week delivering mail. This should not be accepted by his advisers. They would serve his lifestyle better by insisting that he is upgraded to increased hours in this or similar jobs. He will never be fit to return to his pre-injury duties but could be more productive if he had a positive attitude. His advisers should encourage him to become much more active. Swimming is an excellent exercise in this respect. As there is nothing wrong with his lower limbs he should also be doing plenty of walking. It is doubtful whether any further treatment designed to alleviate symptoms caused by physical pathology is going to be of any assistance to him." 132 Dr Schutz reported on 28 May 2007 that the surgery had corrected the kyphosis to close to the normal. I do not propose to refer to the detail of the report addressing the various questions which were posed but from a reading of his report, I do not conclude that the doctor considered that the plaintiff's complaints were unreasonable. I do note in relation to the shoulders that Dr Schutz did not consider that there was any significant impairment in function referable to the accident. Dr Schutz did consider that it would be reasonable to provide for a domestic need of three hours per week. 133 When Mr Morris was cross examining the plaintiff, he put to him that he had not cooperated with the persons who conducted a functional capacity assessment in January 2005. The plaintiff denied that he had failed to cooperate. The cross examination was prompted by the content of reports from the Vocational Capacity Centre in January 2005. I refer to the report in particular of Ms Leaver, physiotherapist. In that report dated 31 January 2005, Ms Leaver noted that the plaintiff was not at all cooperative with the assessment and that he frequently refused tests "that were well within his expected capabilities and previously observed ability." Many inconsistencies were noted. 134 Ms Leaver wrote: "In appropriate employment, Mr Corbett is capable of full time work. Although Mr Corbett has demonstrated his physical capacity for work and is presently working on a casual basis, his pain focussed presentation and anxious behaviour could be expected to present barriers to him obtaining work." 135 Not having seen Ms Leaver in the witness box and having regard to the plaintiff's denial in cross examination, it is difficult to evaluate what Ms Leaver has written. 136 It is apparent from the medical evidence reviewed that those who have treated and assessed the plaintiff do not all agree in their assessments. It is hardly surprising considering the number of doctors who have made assessments. Mr Sears and Associate Professor Dan said that the plaintiff had a good result from the fusion procedure but, on the other hand, Dr Davidson and Dr Vickers accept that there is persisting pain. The medical evidence as reviewed seems to lend support for the finding that there are psychological and emotional problems which compound any ongoing physical disabilities. 137 I consider that there was exaggeration of the plaintiff's Griffiths v Kerkemeyer claim, and the plaintiff certainly did not understate his ongoing complaints or his needs for help in the home environment. The latter needs were exaggerated. Nevertheless, I did not form the conclusion that the plaintiff was an untruthful witness who set out to give misleading evidence. 138 I find that the plaintiff sustained significant injuries in the fall, resulting in persisting pain and disability which in turn has been aggravated by his emotional disorder as variously described by Dr Lovell and by Dr Davies. Notwithstanding the content of the report of Dr Wilcox, the overall finding that I make from the totality of the medical evidence reviewed, is that the plaintiff has significant ongoing disabilities aggravated by his perception of them. The plaintiff's lifestyle has been seriously disrupted as has been his capacity for work. He will not be able to return to his pre-injury work in the future. 139 Nevertheless, there is room for improvement. The plaintiff's evidence was that he was worried about this litigation (T 70, T 129), and I consider that it is likely that there will be some improvement in the plaintiff's mental condition after the litigation is behind him. I am influenced in that conclusion by what Ms Densley said in the passage I referred to earlier and by what Dr Davies has said. I consider that the plaintiff will be able to improve in his lifestyle and in his work capacity after this case is behind him but that he will, nevertheless, be left with significant ongoing disability. 140 I will now proceed to the several assessments.

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The assessment of damages under the Workers Compensation Act 141 Section 151G of the Workers Compensation Act 1987 restricts recoverable damages to an award for past economic loss due to loss of earnings and to damages for future economic loss due to the deprivation or impairment of earning capacity. It is accepted in written submissions that the plaintiff is entitled to have included in his damages a Fox v Wood adjustment and provision for lost superannuation benefits past and future. 142 I consider it likely that but for the accident the plaintiff would have continued to work in his pre-injury work until the normal retirement age. He has no dependants and although the plaintiff said in evidence that he "had intentions of knuckling down a bit more and basically looking for [his] future instead of holidaying so much" and that he had aspirations to progress beyond a grade five operator, I consider that the probability is that the plaintiff would have continued in the future much as he had done in the past if the accident had not happened. I turn to assess the relevant allowances on this basis. 143 The changes to the system resulted in reductions in the workforce at Port Kembla. However, Mr Nicholl, who entered the securing workforce later than the plaintiff, said that he remains a casual employee and his experience is that there has been constant work available. Mr Cox started on the waterfront in 1990 and was a leading hand when the plaintiff was injured. He is presently unemployed and this is not, as I understand it, by choice. However, I see no reason to consider that the plaintiff's opportunities to pursue employment as a grade five operator would have been less than the opportunities that presented to Mr Nicholl. Mr Nicholl is now employed by the first defendant. He said he has declined opportunities for work in the past for personal reasons, and he referred to the avoidance of maintenance as such a reason. Moreover, in the last twelve months he said he had time off because he was building a house. Nevertheless, it seems to me the earnings of Mr Nicholl do provide a guide in my present task, when I am looking to the future. 144 It is difficult to determine precisely what the plaintiff would have earned in the past as a securer but for the accident because of the casual nature of the employment. In the schedule, Exhibit N, an average was taken of the plaintiff's earnings for the financial years ended 30 June 1997 up to the time of the plaintiff's accident. Over that period, exceeding four years six months, the plaintiff's average net weekly earnings were $713.40. On the other hand, his average net weekly earnings during the financial year up to the time of his accident were somewhat less, amounting to $647 per week net. Analysis of the plaintiff's passport (see Exhibit 13(4D)) reveals that the plaintiff spent a significant amount of time in Bali over that period. When one looks at the passport analysis it is difficult to discern a regular pattern as to time spent in Bali. It seems to have fluctuated over the years. 145 I consider it not unreasonable in the circumstances to average out the plaintiff's earnings between 1 July 1996 and the date of the accident in order to obtain a pre-accident measure of the plaintiff's earnings. Hence, I use $713 net, in round figures, as a starting point. I treat that as a measure of what the plaintiff would have earned in his pre-accident position up until the present time. Exhibit N provides figures for Mr Shepherd over the period since 2001 but I have not heard from Mr Shepherd, and I consider that the safer course is to take guidance from Mr Nicholl's earnings for the future. I acknowledge that this approach allows for no progressive increase in what the plaintiff may have earned between the date of the accident and the present, but I notice that Mr Shepherd's earnings went up and down over that period. He earned as little as $585 net in 2004, going back up to $716 in 2005. 146 Taking the figure of $713 as a guide, I conclude the plaintiff would have earned in his pre-injury work between the date of his accident and the present time $37,076 per annum and, accordingly, I estimate the earnings the plaintiff would have made in his pre-injury work from the accident to date at $221,030. 147 In the period that the plaintiff returned to work with the fourth defendant, he earned $456 per week. In the period that he has been doing light casual work since November 2004, he has earned $112 per week. The post injury period of employment with the fourth defendant preceded the fusion procedure which has given the plaintiff a more stable spine. This raises the issue as to whether the plaintiff ought reasonably to have put his residual earning capacity to better use than he has done since his surgery. As to this, the plaintiff said that he applied to Mr Graham for a position some twelve months after the surgery following what he described as a period of ten months of intensive physiotherapy and hydrotherapy. The unchallenged evidence of the plaintiff is that Mr Graham told him that there was no work available for him. The plaintiff underwent some training with Commonwealth Rehabilitation Service, attending once a week for six weeks, for instruction on how to make work applications. The plaintiff was assessed by a rehabilitation consultant in October 2004, and it was suggested the plaintiff should be able to do work as a sales assistant or a ticket collector or a product assembler (see the report of 18 October 2004, being part of Exhibit 5(1D)). The point was made in an earlier report (part of the same exhibit) that with the plaintiff's limited range of work experience it was difficult to recommend other vocational options than those referred to in the October 2004 report. The plaintiff's perception, as stated by him in evidence, was that his background was that of "a physical outdoor worker" (T 50). It is to be accepted that the plaintiff was unfit to do any work for some twelve months after his surgery but he has not made much effort to seek work other than the part time work he has been doing in the period since August 2004. It seems to me that he has been preoccupied by his perception of the extent of his disabilities and by this pending litigation. That perception is to be regarded in the setting of the ongoing psychiatric and psychological consultations he has been having with Ms Densley and Dr Davies on a monthly basis. Moreover, the plaintiff has been required to attend for many medical assessments in relation to his case. Weighing these various factors, I propose to take the plaintiff's earnings with the estate agency as a measure of his earning capacity since the beginning of August 2004. The evidence does not establish that he has been offered longer hours with the estate agency than he has been doing. For the future, however, I propose to take a higher measure of the plaintiff's residual earning capacity because it seems to me with this case behind him, he will be better able to focus on making the most of his employment potential. 148 So it is that I deduct the plaintiff's actual earnings with the fourth defendant from March 2002 until January 2003 of $456 per week, and the sum of $112 per week from the beginning of August 2004, from the figure of $221,030. 149 In the result, I allow for past loss the sum of $185,823, in round figures. 150 For lost superannuation benefits in the past, the schedules presented indicate a uniform approach of allowing nine percent per annum of gross income lost, which is estimated to be thirty percent higher than the net figures. Adopting this common approach, I allow for past loss of superannuation benefits the sum of $21,741. 151 It is agreed that the Fox v Wood allowance to be included in the assessment amounts to $34,049. 152 I turn to the future. Averaging out Mr Nichols' earnings as shown in Exhibit N over the period there presented, these earnings have averaged $900 per week approximately. Mr Kelly has presented calculations based on the current comparable earnings of $991 per week. I am not persuaded I should adopt that higher figure. 153 I acknowledge that I have adopted a conservative approach in measuring the plaintiff's residual earning capacity as being reflected to date in what he has actually earned since he began employment with the real estate agency. However, as already indicated, once the court case is behind the plaintiff, I consider that the plaintiff will be capable of doing more than he has done in the past. I think it unlikely that he would return to any form of heavy physical work. He should be capable of light duties such as he is presently doing for longer hours than in the past. Recognising the plaintiff's disadvantage on the open labour market, I consider it reasonable to measure the residual earning capacity for the future at $300 per week. Hence, I propose to measure the ongoing loss of earning capacity at $600 per week. 154 For the future, I propose to use a greater than normal discount factor for the vicissitudes. In so doing, I am mindful of the plaintiff's pre-accident injuries, in particular the knee which was troubling him in recent times. The lump sum presently required to compensate for a loss of $600 per week to age sixty-five, using the five percent tables, is $361,680. I discount that sum by twenty percent for the vicissitudes and arrive at an allowance for the future of $289,344 155 For future lost superannuation benefits, again I adopt the method of calculation earlier referred to and apply the discount of twenty percent. Accordingly, I allow for lost benefits for the future the sum of $33,853. 156 I summarise the assessment pursuant to the Workers Compensation Act as follows:

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Future out of pocket expenses 161 The plaintiff seeks to have provision for ongoing weekly expenses of $85. Mr Kelly referred to the report of Dr Horsley of 9 March 2006. According to Dr Horsley, visits to the rehabilitation physician and the psychiatrist will cost $150 and visits to the general practitioner will cost $50. Visits to the psychologist will cost $140, and there is a suggested provision of hydrotherapy facilities and the cost of a TENS machine. 162 Mr Kelly also referred to the report of Dr Schutz, the consultant surgeon, who addressed recurring expenses at p 15 of his report of 28 May 2007. Dr Schutz identified recurring expenses as being visits to a general practitioner once per month, infrequent visits to a specialist and pharmaceutical and physiotherapy expenses. 163 I consider the evidence as to the plaintiff's ongoing needs to be in an unsatisfactory state. The plaintiff said that he currently sees Dr Vickers every ten or eleven days for prescriptions, but I do not accept that there will be an ongoing need to that extent. Nor do I consider that he will require monthly consultations with a psychiatrist and with a psychologist indefinitely into the future. The need for those consultations I would expect to gradually taper off. I do think it reasonable to allow for the cost of ongoing visits to the general practitioner and for analgesics and antidepressants. I note what Dr Davidson said in this regard in his most recent report of 5 June 2007: "I do not think any further realistic rehabilitation interventions are likely to ameliorate Gary's situation. I think he will remain dependent upon oral narcotics and other antineuritic and antidepressant medications indefinitely." 164 Some provision for future medication and future medical assistance principally at general practitioner level is warranted, and I think it more probable than not that some need will persist indefinitely. I propose to allow $25,000 under this heading. Testing that allowance against the actuarial tables, it equates to the provision of $30 per week for thirty years.

At a glance

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Judgment (155 paragraphs)

Parties

Cases Cited (8)

Cited By (1)