El Debal v Network Welding Pty Ltd

CATCHWORDS: Negligence - three separate incidents, two at the workplace and the third in a motor accident - plaintiff employed by a body hire company, injured at premises of hirers - new trial directed by Court of Appeal on contributory negligence, contribution between the four defendants, and damages - apportionment of responsibility - Workers Compensation - application of s 151Z and adjustments required to the recoverable damages - Damages - different injuries in each accident, involving the right shoulder, lower back and neck, complicated by a secondary psychiatric condition - attribution of loss of earning capacity to specific injuries

LEGISLATION CITED: Workers Compensation Act 1987 (NSW): s 151Z Motor Accidents Compensation Act 1999

CASES CITED: Darke v El Debal [2006] NSWCA 86 TNT Australia Pty Limited v Christie [2003] NSWCA 47 at [67]

Khaled El Debal (Plaintiff) Network Welding Pty Limited (In Liquidation) (Defendant in the first action) PARTIES: Kari & Ghossayn Pty Limited (First defendant in the second action) Abigroup Pty Limited (Second defendant in the second action) Michelle Darke (Defendant in the third action)

Mr R McIlwaine SC and Mr D Toomey (El Debal) Mr H Halligan (Network Welding Pty Ltd) COUNSEL: Mr S Finnane (Kari & Ghossayn Pty Limited) Mr F Doak (Abigroup Pty Limited) Mr D J Cutler (Ms Darke)

Carroll & O'Dea (El Debal) Nevill & Edwards (Network Welding Pty Ltd) SOLICITORS: Pricewaterhousecoopers Legal (Kari & Ghossayn Pty Limited) Wotton & Kearney (Abigroup Pty Limited) Ferguson Holz (Ms Darke)

JUDGMENT Introduction

1. In 2000 Mr El Debal was injured in three separate accidents. At the time of each accident he was employed by Network Welding Pty Ltd, a body hire company, specialising in welding, that hired out the services of its employees to others.

2. The first accident occurred on 15 April 2000 at the premises of Kari & Ghossayn, which had hired Mr El Debal, in which he injured his right shoulder in an incident involving a crane (the crane incident).

3. The second accident occurred on 2 May 2000 at a construction site, where he had been hired by Abigroup Pty Limited, in which the principal injury was to his low back as a result of a fall from a ladder (the ladder incident).

4. The third accident was a motor vehicle accident that occurred on 18 October 2000, in which the principal injury was to his neck (the car accident).

5. Mr El Debal alleged that each of the defendants was guilty of negligence. The Court of Appeal directed the entry of verdicts in favour of Mr El Debal against each of the four defendants: Darke v El Debal [2006] NSWCA 86 at [99]. A new trial was ordered, limited to the determination of the following issues: · The damages which Mr El Debal is entitled to recover against each defendant, including any adjustments required by s 151Z of the Workers Compensation Act 1987 (NSW). · Whether the damages against Network Welding in respect of the ladder incident on 2 May 2000 should be reduced by reason of any contributory negligence on the part of Mr El Debal. · The contribution between the defendants on the cross-claims.

The issues for determination in respect of liability 6. The first issue to be determined is the apportionment of responsibility for Mr El Debal's injuries as between the employer, Network Welding, and the occupier, Kari & Ghossayn, in respect of the crane incident on 15 April 2000.

7. The second issue to be determined is whether Mr El Debal's entitlement to damages against Network Welding in respect of the ladder incident on 2 May 2000 is to be reduced by reason of any contributory negligence on his part.

8. The third issue to be determined is the apportionment of responsibility for Mr El Debal's injuries as between the employer, Network Welding, and the occupier, Abigroup, in respect of the ladder incident on 2 May 2000.

The crane incident on 15 April 2000 9. On the day of this incident, Network Welding had sent Mr El Debal to the premises of Kari & Ghossayn at Chipping Norton, under a hire arrangement with that company. Here, he was required to undertake work involving the fabrication of channel beams, called 'soldiers'. After the required welding work was carried out on them, these beams were picked up by a crane and transported to a stacking site. During the course of one lift of such a beam by the crane, Mr El Debal was balancing the load with his right hand holding the beam. As the load was being lowered, one of the supporting chains moved suddenly and the load moved in the other direction, wrenching his arm and snapping his shoulder.

The work he was performing at Kari & Ghossayn was not particularly complex and was work with which Mr El Debal was familiar, as he had previously worked for Kari & Ghossayn. He also had previous experience of work involving crane driving and crane chasing. No one from Network Welding went to the site to inspect it or to check on the work Mr El Debal was required to perform. But it was not work that required any particular reference back to his employer, Network Welding, and he received his instructions from the Kari & Ghossayn foreman, Mr Ghazi.

The Court of Appeal found that Mr El Debal was injured by reason of an unreasonable and hazardous system of work that involved human intervention to balance the beam in circumstances where it was liable to move suddenly, especially as it was tilted. There was no positive securing of the beam to prevent it moving quickly and unexpectedly. This risk could have been avoided by various means. It also held that Network Welding was in breach of its non-delegable duty of care to Mr El Debal, and said that it "ought reasonably to have acquainted itself with the system of work in the place to which it sent its employee, putting him under the K & G foreman's day to day direction…"

It was submitted on behalf of Kari & Ghossayn that having regard to the relative responsibility of Network Welding for Mr El Debal's injury, the amount of its contribution should be found to be 50%. In the discharge of its non-delegable duty to him, it should have gone to the site on the first day Mr El Debal commenced work there, to ascertain what his duties were and would entail, to check what was "involved in the whole system", and to "ensure that what was intended - namely, the crane chasing part of the job - was done in a safe fashion." This included the making of enquiries "to ascertain who the crane driver was, and how would they move the beam from position A to position B" and to ensure that the safest method of slinging the beams was achieved.

It was submitted on behalf of Network Welding that its contribution should be limited to 20%, there being no evidence that the crane chasing work was ever part of a job description that Network Welding was made aware of. There was no evidence that what Mr El Debal did was anything other than a one-off, and even if the employer had attended at the site, it may nevertheless have been unable to prevent this particular accident.

It is clear that the employer, Network Welding, should have attended at this site to carry out an inspection of the work site and to acquaint itself with the system of work. But the evidence does not support a finding that in doing so the likelihood of this accident being avoided would have been increased.

For these reasons, having regard to the extent of its responsibility for Mr El Debal's injury, I find it is just and equitable that the amount of the contribution recoverable from Network Welding by Kari & Ghossayn should be 20%.

The ladder incident on 2 May 2000 16. On the day of this incident, Mr El Debal was working at a building site for Abigroup (in fact it was at the Olympic Village), under a hire arrangement between that company and the employer, Network Welding. His right shoulder was still painful from the crane incident two weeks earlier, but he was able to perform the work required by Abigroup. He had been at this particular site for a number of days, carrying out welding work installing balcony panels on the kindergarten building. On the previous days, Abigroup had provided a cherry-picker, or a scissor-lifter, from which he performed the work. But on this day he was refused the cherry-picker as new grass had been laid on the ground below, and the Abigroup foreman, Mr Todd Williams, was concerned that a cherry-picker would break up the new turf. Instead, he was given a ladder and directed to carry out the welding work from the ladder. Whilst standing on the ladder, welding panels on a first floor balcony, some two metres above the ground, the ladder collapsed and he fell. He landed on the ladder, and in particular he struck his lower back, where he sustained a cut just above belt level.

The newly laid turf was wet, and the sprinklers were on to keep it wet. Mr El Debal conceded that he knew it was important to ensure the base of the ladder was stable and level, but he had not taken any particular steps in that regard, such as to place wood under the legs, or tie the top to the balcony. Nor did he complain to Mr Williams, or his own employer. He denied, however, that he was aware it was unsafe, and said he did not think any of these precautions were required. Indeed, he would not have worked from it if he had been aware it was unstable. He specifically denied that he knew the legs had sunk into the wet turf, and in fact had no idea why the ladder collapsed. All he knew was that after his fall, the legs of the ladder were broken.

The evidence also established that Mr El Debal was denied access to the balcony from the inside, assuming it was possible for the welding work to have been performed from that position, as to which there was no evidence. Nor was he provided with any assistant to hold the ladder whilst he was standing on it. There were two other employees of Network Welding there, working with him, but they were required to stand on the balcony and support the panels as Mr El Debal welded them into position.

A representative of Network Welding, Mr Elias, attended at the Olympic site regularly, I am satisfied that it was weekly, to inspect the work site and check on the employees of Network Welding, including Mr El Debal, working there for Abigroup. This was the opportunity for Mr El Debal to raise any issues concerning equipment or the system of work. Of course, it was not until the day in question, when the cherry-picker was not made available, that any problem arose. Mr El Debal had a mobile phone and could have rung Mr Elias if he thought there was a problem. But he didn't see the need.

The Court of Appeal found that Mr El Debal was injured by reason of the ladder falling over because it was unheld, unsecured and on a soft, uneven, sloping surface into which it could sink and become unstable. The ladder was an 'inherently dangerous' method of access in the circumstances. The employer and Abigroup did not discharge their pro-active duties of care by leaving it up to Mr El Debal to do the best he could in the circumstances. He was directed to use the ladder in obviously risky circumstances, and the risks involved in the task of climbing the ladder and working from it wearing a welding mask ought reasonably to have been foreseen. As to Network Welding, the Court of Appeal said it was no answer for it to contend that it did not learn of Mr Williams' requirements about the ladder before the accident happened. The non-delegable nature of the relevant duty meant that it could not be discharged by sending the employee into the care and control of another.

It was submitted on behalf of Abigroup that having regard to the relative responsibility of Network Welding for Mr El Debal's injury, the amount of its contribution should be found to be 50%. Inconsistent with the nature of its non-delegable duty to him, it failed to train or instruct him in the safe use of ladders. The culpability of Network Welding in this regard was aggravated by the fact it knew, or ought to have known, that Mr El Debal had previously been involved in a fall from a ladder. Although it is true that Abigroup gave him the ladder, it did not direct him how to use it, where to use it, or in what circumstances to use it. Further, Network Welding also failed to properly train and instruct him in the appropriate response to a change in the system, or where he was required to perform a task that carried with it a potential danger, namely to telephone the appropriate person from Network Welding and ask for guidance. A simple instruction to the effect that he should contact Mr Elias, who it appears had not been at the site for at least a week, 'if anything changes, you ring us and tell us what's going on, and we'll give you some instructions' would have obviated the risk, and Mr El Debal agreed he would have followed such an instruction. (I am not convinced that he would have, but I will come to that).

Counsel for Abigroup placed great reliance on a passage in the judgment in TNT Australia Pty Limited v Christie [2003] NSWCA 47, submitting that Network Welding had a significant obligation to Mr El Debal, which was in the circumstances increased, such as to require the adoption by the employer of the 'additional measures' referred to.

" Indeed, the very fact that employees are dispatched to external venues and placed under the de facto management of outsiders will, in some cases, have the practical effect of requiring the employer to adopt additional measures by way of warning or training in order to discharge its continuing common law duty of care to its employees."

24. It was submitted on behalf of Network Welding that its contribution should be notional, and in the order of 5%, having regard to the one-off nature of the circumstances surrounding the incident, and absence of anything to put Network Welding on notice of the change in the system of the provision, by Abigroup of a cherry-picker or scissor-lifter.

25. In my view, the predominant cause of the accident was the refusal of Abigroup to allow Mr El Debal to use the cherry-picker or scissor-lifter, and requiring him to use the ladder. It gave him no assistance, by way of someone to hold the ladder, nor did it give him any assistance in positioning it or making it steady by the provision of timber or something similar, to provide a solid base.

26. It is true that there was no evidence of training and instruction provided to Mr El Debal by Network Welding, but Mr El Debal considered his positioning of the ladder was safe. This was a breach by Network Welding of its non-delegable duty of care, which requires that its contribution should be more than notional, however I am not satisfied that the absence of training is a factor which raises the relative culpability of the employer to equal that of Abigroup. Similarly, it was open to Network Welding to have instructed Mr El Debal to notify it of any change in the system, but having regard to Mr Williams' directions to use the ladder, and Mr El Debal's view that it was safe, I am not persuaded that Mr El Debal would have contacted Mr Elias in any event.

27. For these reasons, having regard to the extent of its responsibility for Mr El Debal's injury, I find it is just and equitable that the amount of the contribution recoverable from Network Welding by Abigroup should be 20%.

Was Mr El Debal guilty of contributory negligence in the ladder incident? 28. I turn then to the question of whether Mr El Debal's damages recoverable from Network Welding are to be reduced in respect of the ladder incident on 2 May 2000 by reason of contributory negligence on his part.

It was submitted for Mr El Debal that he merely did as he was told. He was unaware the ladder was unstable, and indeed he in fact believed it was safe. There is no evidence as to why the ladder fell.

There was, however, the inference drawn by the Court of Appeal that the ladder fell over because it was unheld, unsecured and placed on a soft, uneven, sloping surface into which it could sink and become unstable. The risk of climbing the ladder and working from it, wearing a welding mask, was foreseeable to Abigroup and Network Welding. In my view, it was equally foreseeable by Mr El Debal.

It was submitted for Network Welding that what Mr El Debal decided to do was 'run with the moment' and to do as he had been instructed by Mr Williams. He had with him a mobile phone, with which he could have kept Network Welding apprised of what was happening. The task was not complicated. The use of a ladder is an every day event, and to ensure its stability is a matter of commonsense. There was ample opportunity for Mr El Debal to have stabilised the ladder by various means. By climbing the ladder in these circumstances, manhandling his welding equipment and the attached cables was 'asking for trouble'.

It was open to Mr El Debal to have refused to work, but I am not satisfied that in not doing so he failed to take reasonable care for his own safety. Similarly, I do not accept that he should have telephoned Mr Elias. I find, however, that he should have taken better precautions to secure the ladder, if not by having one of his fellow workers hold it, then by tying it at the top and ensuring it was positioned on a firm base that was stable and unyielding.

For these reasons, I find that Mr El Debal failed to take reasonable care for his own safety and having regard to his share in the responsibility for his injury sustained in the ladder incident, it is just and equitable that the damages recoverable by him from Network Welding be reduced by 20%.

Damages 34. I turn to the assessment of damages. Mr El Debal was born in Lebanon on 20 December 1967 and is now 39. He is a single man who lives with his mother and sisters in Wakeley. He has a son from a previous relationship, now aged 15, who resides with his mother, who he sees regularly and supports financially.

He completed his schooling in Lebanon, at the age of 12, due to the civil war there, and then worked as a welder until the age of 16 when he migrated here with his family, in 1984. Upon arrival he did not speak English and he underwent an intensive English course, lasting 3 months. He then worked in various jobs until 1994, by which time he had become an acting foreman at the State Rail authority. During this time he also undertook various training courses, including working as welder. He subsequently worked for various employers in various capacities.

In 1992 he was charged with a drug related offence. This came to court in November 1994 when he was convicted and sentenced to a term of imprisonment and he went into gaol for three months until January 2005 when he was released on bail pending an appeal. He worked during 1995 until the hearing of his appeal in November. He lost the appeal and was sent back to gaol until May 1996, when he was released.

Whilst on bail, he suffered a low back injury at work in a glass factory, lifting heavy sheets of glass. He received medical treatment and the symptoms persisted for about a year, after which he got better. He received workers compensation payments in respect of this injury.

Following release from prison, he worked in various jobs until obtaining work with Kari & Ghossayn, as a welder and boilermaker, in January 1998. In May 1998 he moved to Network Welding, also as a welder and boilermaker, and worked there until the subject accidents, and being promoted, in January 1999, to the position of team leader. During this period there were some episodes of should and neck pain, including an incident when he fell from a ladder and another when an oxy bottle fell on him, but these were all minor, and he lost no significant time from work from any of them.

He was then involved in the crane incident at Chipping Norton on 15 April 2000 when on hire to Kari & Ghossayn. The accident occurred at about 3.15pm and he experienced considerable pain in the right shoulder. He stopped work and went home. It was a Saturday, and he did not go to see a doctor till the following Monday, when he consulted his general practitioner, Dr Murad. The doctor found tenderness in the anterior aspect of the right shoulder joint, prescribed Voltaren and arranged for an ultrasound. This occurred on 19 April 2000, and showed evidence of tendonitis and impingement of the tendon. He remained off for a few days only and then went back to work.

Although he was able to carry out the work required, his shoulder remained painful and he was being careful with lifting and other activity involving his shoulder. It was, however, only about 10 days before the next accident at the Olympic site, whilst on hire to Abigroup, when he was involved in the ladder incident on 2 May 2000. As a result of this accident he was in considerable pain in the lower back, radiating down the legs, and so he went to see Dr Murad. An x-ray was ordered, following which a CT scan was also undertaken.

Mr El Debal complains that he has been in constant pain ever since, in both the back and right shoulder.

Between May and October 2000, he remained on medication and underwent regular physiotherapy. He was referred to specialists, Dr Bokor and Dr Giblin. Dr Bokor first saw him on 20 July 2000, for his right shoulder problems, and he arranged for an MRI of the right shoulder. This took place on 2 September 2000 and revealed extensive pathology in that shoulder, consisting of a "SLAP lesion'. Dr Giblin first saw him on 16 August 2000, for his low back problems, and he arranged an MRI of the low back. This took place on 13 October 2000 and revealed a moderate disc protrusion at the L5/S1 level and disc changes in the upper lumbar spine.

Then, on 18 October 2000, the car accident occurred, in which he sustained cut above the ear and following which his neck was very sore and stiff. The next day he went to see Dr Murad, who diagnosed a whiplash neck injury, and organised an x-ray and CT scan of the cervical region. These tests were undertaken on 19 December 2000 and revealed no evidence of significant bone or disc encroachment of the lateral or central canal.

Mr El Debal complains that he has been in constant pain ever since, in the neck, back and right shoulder. He says these problems are attributable to the three accidents the subject of these proceedings.

On 7 December 2000, Dr Bokor carried out a procedure under anaesthetic on Mr El Debal's right shoulder at The Hills Private Hospital to debride the SLAP lesion. The procedure also involved excision of a ganglion cyst and subacromial bursoscopy with debridement of the bursa.

Over the course of the next 6 years, Mr El Debal has seen many doctors and has undergone many further tests, but there has been no further treatment as such. He continued with regular physiotherapy up till 2003, but stopped going when the workers compensation insurer cut off his payments of compensation. In addition to his orthopaedic problems, he developed a psychiatric condition, secondary to his physical disabilities and his inability to work. He underwent some courses in English and attempted a TAFE business management course in May 2004. He has continued to take medication for both his physical problems and his depressive condition. He has only worked for short periods, but has otherwise not been in gainful employment. He says he is unfit to return to welding work, and is fit only to perform work of a very light nature.

Dr Bokor has advised him that he might benefit from further surgery on his right shoulder. This would consist of arthroscopic evaluation and appropriate management of the SLAP lesion and, if appropriate, subacromial debridement and decompression. Such surgery will provide a better chance of long-term improvement. To this point, Mr El Debal has not undergone this operation due to the likely cost and the unavailability of funds for the purpose.

The issues for determination in respect of damages 48. A number of issues arise for specific determination in respect of the assessment of damages. There are issues concerning the extent of Mr El Debal's disabilities. There are some causation issues, including in particular the cause of the SLAP lesion suffered by Mr El Debal. Also in issue is the extent of any loss of earning capacity, and the attribution of that loss to the specific injuries. In particular, the defendant in the third action, Ms Darke, says that Mr El Debal did not suffer any permanent disability as a result of the car accident on 18 October 2000, and even if he did, it did not increase his pre-existing loss of earning capacity from his other injuries.

The injury to the right shoulder 49. It is Dr Bokor's opinion that the SLAP lesion in Mr El Debal's right shoulder was in the nature of a traction injury, caused by the crane incident on 15 April 2000. Notwithstanding the record in the files of Dr Murad of right shoulder problems dating back to October 1998, Dr Bokor did not consider these were connected to the SLAP lesion. Although the shoulder settled down following the surgery, by 2004 there had been a gradual onset of recurrent 'catching and locking' when he reached forward with that arm, and an associated burning sensation in the deltoid and anterior aspect of the shoulder. A fresh MRI was arranged on 7 July 2004, and this revealed an extensive SLAP lesion with an adjacent peri-labral cyst, as well as intra-substance tendinosis affecting the mid-suprasispinatus. There was an undisplaced tear in the lower portion of the joint. It is for this pathology that Dr Bokor has recommended the further surgery. In his opinion these features are probably attributed to the original complaint from the 2000 incident:

" Having had initial damage in the year 2000 and debriding this there is often microscopic damage, which is not evident on macroscopic inspection at the time of arthroscopic surgery. Repetitive use of the arm as well as this will cause further degenerative change and deterioration."

50. The reports of Dr Bodel, Dr Bleasel and Dr Chen support the opinion of Dr Bokor. Dr Smith, however, believes that the mechanism of the injury in the crane incident on 15 April 2000 was unlikely to produce a SLAP lesion. The lesion seen in the MRI of 7 July 2004 is inconsequential and requires no treatment. There is, now, nothing objectively wrong with the right shoulder, which has a normal range and rhythm of movement; there is no disability and the shoulder is not productive of any work restriction whatsoever. An operation is not indicated.

51. The main attack in relation to the shoulder injury, however, came from Dr Schutz. He provided two reports dated 14 March 2004 and 5 February 2007, and he also gave oral evidence. In his first report, Dr Schutz considered that the crane incident on 15 April 2000 was a simple wrenching injury that possibly caused a slight impingement, but the ultrasound gave no indication of the pathology shown later on the MRI scan, although the SLAP lesion could possibly have been caused by the 'awkward fall' from the ladder on 2 May 2000. In his second report, Dr Schutz confirmed his view that the crane incident was unlikely to have caused the pathology shown on the MRI scans, but the ladder fall might have.

52. When called to give oral evidence the history of earlier shoulder problems, from the notes of Dr Murad, was put to Dr Schutz, including the earlier fall from a ladder, and the episode where Mr El Debal was struck by an oxygen cylinder, histories not previously supplied to him. Dr Schutz regarded the earlier incident on 18 February 2000 as particularly relevant.

" If I had the opportunity of going back and questioning Mr El Debal and writing the report again, I would stress that he's had a number of injuries to his right shoulder, and that the problem of the shoulder that we've seen now seems to be a progression of minor injuries - in themselves, relatively minor injuries - leading to the pathology that he had treated."

He went on to say that the crane accident on 15 April 2000 was not the primary cause of his shoulder problem, particularly having regard to the fact that he was back at work performing welding work within days. The type of pathology shown in the shoulder was either the result of cumulative injuries, or a single initial high-impact force injury, causing significant pain. It would not be possible to work for weeks after such an accident. The fall from the ladder could have been such an incident.

Counsel for Mr El Debal then extensively cross-examined Dr Schutz in respect of this opinion. The doctor agreed that a wrenching-type motion of the shoulder across the chest could have caused a SLAP tear, of the type suffered by Mr El Debal, and would cause pain until repaired. The level of pain would vary according to the movements to which the shoulder was subjected. It would be highly improbable, however, if a person was able to perform welding work, that that person had a SLAP tear. The doctor further conceded, when pressed, that the earlier episodes of shoulder pain recorded in Dr Murad's notes were more likely the outcome of the effects of bronchitis and a minor temporary strain of a joint muscle.

Dr Bodel also gave oral evidence, and shed further light on this issue. Counsel for Kari & Ghossayn put it to the doctor that a SLAP lesion could only be caused by 'enormous force'. The doctor disagreed and said that there can be a number of different forces that could cause a grade 1 SLAP lesion such as that suffered by Mr El Debal. He gave the example of Andrew Symonds sustaining such an injury whilst batting just prior to the World Cup. Nor did the doctor regard it as unusual that Mr El Debal was able to go back to work a few days later. Dr Bodel said:

" It's a painful lesion, it's not a major event initially...the way in which these things become painful is over time because of the increasing instability associated with the SLAP lesion, and you get a secondary supraspinatus tendonitis, which becomes increasingly painful…I don't have a difficulty with him being able to do that (weld in various positions) with this lesion, particularly in the very early stages of the lesion; that is, within two weeks of it occurring."

There was, therefore, a significant dispute as to the cause and extent of the shoulder injury suffered by Mr El Debal. It was submitted on behalf of Kari & Ghossayn that Mr El Debal simply did not prove that the SLAP injury resulted from the crane incident on 15 April 2000. The evidence of Dr Bokor was imprecise and insufficient to establish the required causal relationship.

In my view, however, the evidence gives rise to only one cause of the SLAP injury, namely the wrenching, traction mechanism that occurred on 15 April 2000, and more probably than not it was that crane incident which precipitated the lesion, which thereafter steadily deteriorated by the means described by Dr Bokor. In forming this view, I prefer the evidence of Dr Bokor and Dr Bodel to that of Dr Smith and Dr Schutz. The latter did not fare well in cross-examination and was in my view shown to be a partisan witness for the defence, who was less than objective in his analysis and opinions. Dr Bokor, described by Dr Schutz as 'an extremely competent shoulder surgeon' was not called for cross-examination. His analysis, as elucidated by Dr Bodel, was in my view lucid, consistent and compelling.

The theory that the SLAP injury was somehow caused in incidents that occurred before 17 April 2000 was discredited, and the suggestion that it was in fact caused in the fall from the ladder on 2 May 2000 was simply not supported by any credible evidence.

For these reasons, I find that Mr El Debal suffered a SLAP injury in the crane incident on 17 April 2000, the symptoms and effects of which continue, and which more probably than not requires remedial surgery to stabilise the condition and provide a better chance of long-term improvement.

The injury to the low back 60. Mr El Debal was initially referred by Dr Murad to Dr Giblin who first saw him on 16 August 2000. He diagnosed a soft tissue injury and symptoms in the back consistent with a broad disc bulge at L5/S1 noted on the MRI scan, aggravated by the fall from the ladder on 2 May 2000.

The medical evidence is largely consistent as to the debilitating effect of his back condition and its impact on his mobility and capacity for heavy manual work. The real issue for determination is causation, it being clear that Mr El Debal was suffering from significant pre-existing degenerative pathology in the low back. He had already had one back injury in 1995 that resulted in a workers compensation claim. However, the impact of that injury on his capacity for work had clearly abated and by 2000 he was back in full-time employment as a welder.

The case for Mr El Debal is that he was asymptomatic before 2 May 2000, and absent any other cause, his ongoing symptoms are more probably than not a result of the fall from the ladder. The specialist medical support for his case, apart from Dr Giblin, comes from Dr Bodel and Dr Bleasel. Dr Bodel's evidence was to the effect that there is 'a probable existence of some additional structural damage' that occurred at the time of the fall that 'could have materially aggravated' the pre-existing pathology. He was not specific as to the nature of any 'additional' structural damage, but nor was he cross-examined on the point. Dr Bleasel was similarly of the view that the absence of back pain from 1998 through to 2000 made it probable that the cause of the continuing symptoms was the fall from the ladder. The symptomatic recovery from the 1995 injury establishes the causal link to the 2000 injury. The presence of underlying pathology is not indicative of an inevitability of back trouble.

The case for Abigroup was that the fall from the ladder only caused a minor temporary aggravation of the pre-existing degenerative condition, the symptoms from abated, probably within 18 months. There is medical support for this proposition, the high point of which comes from Dr Smith, who said:

" It would appear that…he did suffer a back injury in 1995 or thereabouts…What has happened with the L5/S1 level since is what one would expect to see with the passage of the years from 1995 through to the present. The natural history of such an anomaly is to recover and leave little or no disability and I think that has happened with Mr El Debal."

The expert medical opinion evidence supporting the case for Abigroup rests upon the notion of what usually happens in similar circumstances. I am satisfied, however, that this is not what occurred with Mr El Debal's back. In my view, he fully recovered from his 1995 back condition, by at least 1998. This is established by his return to full-time duties involving heavy welding work. The re-emergence of symptoms following the ladder fall in 2000 and the continuity of these symptoms from then on establishes the ongoing causal relationship. I prefer, therefore, the opinion of Dr Bodel and Dr Bleasel on this issue.

For these reasons, I find that as a result of the fall from the ladder on 2 May 2000 Mr El Debal suffered a permanent and continuing aggravation of an underlying degenerative condition in his back, which included a disc problem at the L5/S1 level of the lumbar spine, the symptoms of which had abated by about 1998. The aggravation resulted in the fresh onset of symptoms that have persisted and continue to the present time.

The injury to the neck 66. Following the car accident on 18 October 2000, Mr El Debal consulted Dr Murad in connection with the neck symptoms he began to experience. Dr Murad diagnosed a whiplash neck injury and organised an x-ray and CT scan of the cervical region. When by March 2001 the neck symptoms had not abated, he was referred to a specialist neurologist, Dr Hanna, who first saw him on 30 April 2001. Dr Hanna could find no 'hard neurological signs' suggestive of cord or root pathology. He ordered an MRI, revealed diffused spondylitic changes from C3 to C7: broad-based disc bulge with osteophytes formation were present at C3/C4, C4/C5 and C6/C7, causing moderate to marked cord compression with possible myelomalacia.

67. It is contended for Mr El Debal that, similarly to his low back condition, the underlying degenerative condition was previously asymptomatic, and was aggravated by the car accident on 18 October 2000. His case in this regard is supported by specialist medical opinion from Dr Giblin, Dr Dorsch, Dr Bodel and Dr Bleasel. On the other hand, Dr Smith considers that any aggravation of his 'extensive cervical degenerative disease' would have ceased after three months. In his opinion there was nothing objectively wrong with Mr El Debal's neck when he examined him in 2004, and Mr El Debal was 'manufacturing weakness' in the upper limbs. Dr Gonski's view was that there were no continuing problems in the neck, but he seems never to have obtained a history of the car accident.

68. The case put on behalf of the Ms Darke, the defendant in the third action in relation to the car accident on 18 October 2000, is that there are no continuing neck problems that can be attributed to that accident, and even if there were, they are not productive of any additional loss of earning capacity. It was submitted firstly that there was no neck injury from that accident. Second, that any aggravation of the pre-existing degenerative condition in the neck was more probably caused in the ladder incident on 2 May 2000, or indeed the earlier incident involving the oxygen cylinder. Third, that the continuing symptoms are attributable to the underlying condition, and not any aggravation.

69. I am satisfied, however, that the preponderant neck symptoms experienced by Mr El Debal only commenced after the car accident on 18 October 2000. The emergence of major symptoms following that accident and the continuity of these symptoms from then on establishes the ongoing causal relationship. In my view, therefore, he did suffer an aggravation of his neck condition in that accident, from which there are continuing symptoms that are to due to that accident, rather than any earlier accident, or the pre-existing condition.

70. For these reasons I find, that as a result of the car accident on 18 October 2000, Mr El Debal suffered a permanent and continuing aggravation of an underlying degenerative condition in his neck. The symptoms from that incident are productive of a continuing disability and result in a loss additional to that caused by the two earlier incidents involving the crane and the ladder.

The psychiatric condition 71. Overlaying all his orthopaedic problems, Mr El Debal also developed a depressive condition, amounting in clinical terms to an 'Adjustment Disorder with Depression'. This condition was manifested in mood swings, frustration and irritability, and resulted in sleep disturbance, social isolation and decreased motivation, and was treated conservatively with medication. Two psychiatrists qualified for medico-legal purposes by Mr El Debal's solicitors in 2002, Dr Westmore and Dr Tsang, both diagnosed this condition. According to Dr Westmore, the condition occurs in response to identifiable psychosocial stressors, in Mr El Debal's case the chronic pain and resulting work and lifestyle restrictions, and would fluctuate, depending on the impact of these stressors. Dr Tsang first expressed the view that by June 2003 Mr El Debal no longer suffered from a psychological or psychiatric condition, and no longer required any active treatment. However, exacerbations 'might occur' if his physical condition deteriorated, or his rehabilitation proved unsuccessful. In 2006 Dr Tsang said this:

" From the psychiatric point of view, I consider Mr El Debal suffers from an Adjustment Disorder with Depression. In the last four and a half years that I have seen Mr El Debal in consultations, I do not think that he has chronic dysphoria. The intensity and level of this fluctuates as his circumstances change. However, I also respect his decision not to have active psychological or psychiatric treatment as he feels he is coping adequately with his avoidant behaviours…I consider that Mr El Debal will likely continue to have fluctuating levels of dysphoric mood depending on his physical condition and its impact on his daily life…"

72. I accept, therefore, that overlaying his physical problems, Mr El Debal has suffered from a mild psychological condition, which has largely abated, but that he will continue to suffer from intermittent anxiety about his ability to work and engage in normal social activity. However, apart from the condition having been being productive, in its initial phase, of decreased motivation, I find that his condition does not impact negatively on his earning capacity. To the contrary, the more he rehabilitates himself and engages in gainful employment, the less likely he will be to suffer from anxiety.

The relative contribution of the various incidents to the economic loss 73. Before turning to assess the extent of any economic loss resulting from Mr El Debal's various injuries, I am required to make a determination as to the relative impact of the three accidents that caused those injuries. For this purpose, I find that the crane incident was the cause of the right shoulder injury, and not causative of any significant ongoing symptoms in the neck or low back; the ladder incident was the cause of the lumbar back injury, and not causative of any significant ongoing symptoms in the right shoulder or neck; and the car accident was the cause of the neck injury, and not causative of any significant ongoing symptoms in the right shoulder or low back. I find further that Mr El Debal's incapacity for work is not total and that he retains a considerable level of residual earning capacity. This was conceded, and I will come to the calculations shortly.

74. It was submitted for Mr El Debal that the apportionment in respect of the economic loss to be attributed to various incidents and injuries should be in the following proportions: · Crane incident (right shoulder): 35% · Ladder incident (low back): 45% · Car incident (neck) 20%

75. It was of course the contention on behalf of Ms Darke that there should be no contribution as regards the car accident. It was also the contention on behalf of Kari & Ghossayn that any contribution in respect of the ladder incident should be limited to a few days following that fall. Similar submissions were made on behalf of Abigroup as regards the ladder incident. However, none of these submissions are sustainable in the light of the findings I have made.

76. In making the apportionment as to causation in respect Mr El Debal's economic loss, I have had regard to the evidence and findings referred to above, to the effect that each accident contributed overall to the economic loss, in particular the diminished earning capacity suffered. In addition, I have had regard to the following evidence: the restrictions to which his various disabilities give rise, in particular bending and twisting, lifting, strenuous pulling and pushing, and his inability to work in a position of prolonged head down posture, and the limitation as to strenuous and repetitive overhead tasks involving the right arm. In my view the evidence also establishes that it is the low back injury and right shoulder problems that are the predominant causes of his incapacity, with the low back being slightly more incapacitating. Nevertheless, the neck injury plays its part: particularly as to the postural impact, the wearing of a welder's mask, and working at computers.

77. For these reasons, I agree with the submissions made on behalf of Mr El Debal as to the appropriate apportionment, and I make findings accordingly.

Economic loss 78. A Schedule of Damages was prepared and submitted on behalf of Mr El Debal, which contained calculations as to past economic loss, the mathematics of which was not disputed. Having determined the issues as to causation and relative contribution, the only other issue of contention as to economic loss was the extent of incapacity. It was submitted, for example, that Mr El Debal had exaggerated the extent of his incapacity, had made less than enthusiastic attempts to obtain gainful employment, and was in fact capable of many forms of work within his restrictions. I agree. His counsel also conceded as much. The question that emerges for my determination is, therefore, whether the concession made as to the residual earning capacity was sufficient.

In my view the concession allowed for in the calculations is appropriate. I am satisfied that following an initial period of total incapacity, Mr El Debal remained partially incapacitated to a major extent. He did, however, recover some residual capacity for work, but the opportunity for him to find and sustain gainful employment within the restrictions I have articulated above is limited.

I therefore accept and make findings as to past economic loss, including loss of superannuation and the Fox v Wood component, in accordance with the calculations set out in the Plaintiff's Schedule of Damages, as set out in the Tables below.

I also accept the mathematics in the Plaintiff's Schedule of Damages as to the calculation of future economic loss, but I consider there should be a discount in respect of those damages to reflect, to a greater extent, the vicissitudes relating to the predisposition to the onset of symptoms from Mr El Debal's underlying degenerative condition of the neck and lumbar spine. It was submitted that there should be a significant discount for the probability of a re-emergence, in any event, of symptoms from the underlying degeneration. As to the lumbar back, this was described as 'a time bomb' waiting to go off, warranting a 50% reduction.

Having regard to the medical evidence as to the marked nature of the degenerative changes in Mr El Debal's spine, described as unusual for a man of his age, I consider it appropriate to apply an additional discount to take account of the high probability that the underlying condition would inevitably have produced symptoms in the future. As to the lumbar back, this propensity was exacerbated by reason of the prior lesion at the L5/S1 level from the accident in 1995.

For all these reasons, I am satisfied that the following assumptions about Mr El Debal's future earning capacity accord with his most likely future circumstances, but for his injuries: he would not have worked till the age of 65 in the same or similar employment, at a similar level of base wage, increasing in accordance with the CPI (Sydney). His capacity to earn would have been reduced by the onset of symptoms attributable to the underlying, pre-existing degenerative condition in both the neck and lumbar back. The emergence of symptoms in the back would be more likely, due to the injury in 1995 in which he suffered a lesion at the L5/S1 level. The amount of the award of damages that would otherwise have been appropriate would in the ordinary course be adjusted by reference to an 85% possibility that the events concerned might have occurred but for his injury. However, having regard to these additional factors, specific to Mr El Debal, I find that the amount of the award in respect of the neck should be adjusted by reference only to a 75% possibility, and the award in respect the lumbar spine should be adjusted by reference only to a 65% possibility.

The calculations in respect of future economic loss are, therefore: · Crane incident (right shoulder): $850.58 x 768.7 x 85% = $555,764.72 Network Welding (35%) = $194,517.65 Kari & Ghossayn (35%) = $194,517.65 · Ladder incident (low back): $850.58 x 768.7 x 65% = $424,996.54 Network Welding (45%) = $191,248.44 Abigroup (45%) = $191,248.44 · Car incident (neck): $850.58 x 768.7 x 75% = $490,380.63 Ms Darke (20%) = $ 98,076.13 There are consequential adjustments to be made to the calculations for future loss of superannuation, which are set out in the Tables below.

Out of pocket expenses 85. There is no dispute as to the mathematics in respect of the past out-of-pocket expenses, as set out in the Plaintiff's Schedule of Damages. The findings I have made mean that Mr El Debal is entitled to recover those amounts, which as regards Network Holdings, Kari & Ghossayn and Abigroup are set out in Tables 1 and 2 below.

86. Turning to the future out-of-pocket expenses in respect of the crane incident, there are claims for future medication and GP attendances. I am satisfied these requirements are probable, and therefore reasonable. The mathematics, as set out in the Plaintiff's Schedule of Damages, is agreed. There is also a claim for future surgery and rehabilitation, in respect of the right shoulder, as to which I am not satisfied that Mr El Debal's case was proved. First, I was not persuaded that he would have the operation at all. His evidence that he has not in the past been able to afford the operation was unconvincing. The evidence from Dr Smith was that the operation is contra-indicated. No evidence on the issue was led from Dr Bodel or Dr Bleasel, and I am not satisfied the operation is reasonably required.

87. As to the future out-of-pocket expenses in respect of the ladder incident, there are claims for future medication and GP attendances, the need for which I am also satisfied is probable and therefore reasonable.

88. There is also a claim for future surgery and rehabilitation, as set out in the report of Dr Giblin dated 13 January 2003, as to which I am satisfied that Mr El Debal's case was proved. I find that there is a very high probability of the need for a future spinal fusion at L5/S1, with disc excision. The mathematics of these future expenses, as set out in the Plaintiff's Schedule of Damages, is agreed.

89. In respect of Ms Darke, the agreed past out-of-pocket expenses were $2,180.00. There is no claim for the future.

Non-economic loss (general damages) 90. I come, finally, to the assessment of non-economic loss as against Network Welding, Kari & Ghossayn and Abigroup. Having regard to the decision of the Court of Appeal, such damages are not recoverable from Ms Darke.

In respect of the crane incident, Mr El Debal submitted that there should be an award assessed by reference to 35% of a most extreme case. The defendants contended that there should be no damages for non-economic loss in respect of the right shoulder injury: Network Welding submitted that the assessment should be less than 17.5%, the relevant threshold under s 151G of the Workers Compensation Act 1987 (NSW), and Kari & Ghossayn submitted that the assessment should be less than the relevant threshold of 15%.

In my view, however, having regard to all the evidence, but taking into account in particular Mr El Debal's age, the severity and permanency of the ongoing pain and other symptoms, the surgery, the impact on his social and family life, and the depressive condition he developed, these thresholds have clearly been exceeded. I determine the severity of the non-economic loss in respect of the injury to the right shoulder, as a proportion of a most extreme case, at 30%.

In respect of the ladder incident, Mr El Debal submits that there should be an award assessed by reference to 40% of a most extreme case.

Turning to the low back injury from the ladder incident, Mr El Debal submitted that there should be an award assessed by reference to 40% of a most extreme case. The defendants submitted that the assessment should be considerably less.

In my view, however, having regard to all the evidence, including the pre-existing pathology in the lumbar spine, but also taking into account Mr El Debal's age, the severity and permanency of the ongoing pain and other symptoms, the likelihood of future surgery, the impact on his social and family life, and the depressive condition he developed, the assessment should be 35%. I determine the severity of the non-economic loss in respect of the low back injury as a proportion of a most extreme case at 35%.

The calculations in respect of non-economic loss, having regard to these determinations and the respective statutory allowances are, therefore: · Crane incident (right shoulder) - Network Welding: 30% of a most extreme case = $73,275.00. Kari & Ghossayn: 30% of a most extreme case = $98,000.00. · Ladder incident (low back) - Network Welding: 35% of a most extreme case = $85,487.50. Abigroup: 35% of a most extreme case = $149,500.00.

Calculations as to damages 97. The Tables of Damages are set out below: Table 1 - The Crane Incident Heads of Damages Network Welding Kari & Ghossayn Non-economic loss $ 73,275.00 $ 98,000.00 Past economic loss $ 125,315.07 $ 125,315.07 Past loss of superannuation $ 16,254.73 $ 16,254.73 Tax lost (Fox v Wood) $ 6,553.50 $ 6,553.50 Future economic loss $ 194,517.65 $ 194,517.65 Future loss of superannuation $ 22,758.57 $ 22,758.57 Past out-of-pocket expenses $ 11,122.90 $ 11,122.90 Future out-of-pocket expenses $ 11,778.38 $ 11,778.38 Total $ 461,575.80 $ 486,300.80

Table 2 - The Ladder Incident Heads of Damages Network Welding Abigroup Non-economic loss $ 85,487.50 $ 149,500.00 Past economic loss $ 161,119.38 $ 161,119.38 Past loss of superannuation $ 20,898.94 $ 20,898.94 Tax lost (Fox v Wood) $ 6,553.50 $ 6,553.50 Future economic loss $ 191,248.89 $ 191,248.44 Future loss of superannuation $ 22,376.07 $ 22,376.07 Past out-of-pocket expenses $ 11,122.90 $ 11,122.90 Future out-of-pocket expenses $ 20,000.00 $ 20,000.00 Total $ 518,806.73 $ 582,819.23

Table 3 - The Car Incident Heads of Damages Ms Darke Non-economic loss Unrecoverable Past economic loss $ 67,608.61 Past loss of superannuation $ 7,910.21 Tax lost (Fox v Wood) Not applicable Future economic loss $ 98,076.13 Future loss of super $ 11,474.91 Out-of-pocket expenses $ 2,180.00 Total $ 187,249.86

98. I therefore find total damages against the respective defendants as to the respective incidents and injuries in accordance with the total amounts set out above in the Tables.

99. The total damages found as against Network Welding in respect of the ladder incident are reduced by 20% for the contributory negligence from $518,806.73 to $415,045.38.

Adjustments under the Workers Compensation Act 1987 100. I turn now to consider the application of the Workers Compensation Act 1987 (NSW). No issues have been raised under s 151N(2). Adjustments are, however, required under s 151Z.

101. In respect of the crane incident on 15 April 2000, the damages recoverable from Kari & Ghossayn are to be reduced by $4,945.00, being 20% of the difference between those damages and the damages recoverable against Network Welding ($486,300.80 - $461,575.80 =$24,725 x 20%). The adjusted damages payable by Kari & Ghossayn are, therefore, $481,355.80: s 151Z(2)(c). The amount of the contribution Kari & Ghossayn is entitled to recover from Network Welding is to be determined as if the whole of the damages wee assessed in accordance with Division 3 of the Workers Compensation Act 1987 (NSW) s 151Z(2)(d). It follows that the contribution is $92,315.16, calculated by reference to the damages payable by Network Welding ($461,575.80 x 20%). The contribution recoverable by Network Welding from Kari & Ghossayn is $369, 260.64 ($461,575.80 x 80%).

102. In respect of the ladder incident on 2 May 2000, the damages recoverable from Abigroup are to be reduced by $33,554.77, being 20% of the difference between those damages and the damages recoverable against Network Welding, as reduced for the contributory negligence ($582,819.23 - $415,045.38 = $167,773.85 x 20%). The adjusted damages payable by Abigroup are, therefore, $549,264.46: s 151Z(2)(c). The amount of the contribution Abigroup is entitled to recover from Network Welding is to be determined as if the whole of the damages wee assessed in accordance with Division 3 of the Workers Compensation Act 1987 (NSW) s 151Z(2)(d). It follows that the contribution is $83,009.08, calculated by reference to the damages payable by Network Welding ($415,045.38 x 20%). The contribution recoverable by Network Welding from Abigroup is $332,036.30 ($415,045.38 x 80%).

Summary 103. The contribution recoverable from Network Welding by Kari & Ghossayn in respect of the crane incident on 15 April 2000 is 20%.

104. The contribution recoverable from Network Welding by Abigroup in respect of the ladder incident on 2 May 2000 is 20%.

105. Mr El Debal was guilty of contributory negligence in the ladder incident on 2 May 2000 and the damages recoverable by him from Network Welding are reduced by 20%.

106. The damages recoverable by Mr El Debal are: · Crane incident (15 April 2000): From Network Welding = $461,575.80 From Kari & Ghossayn = $481,355.80 · Ladder incident (2 May 2000): From Network Welding = $415,045.38 From Abigroup = $549,264.46 · Car incident (18 October 2000): From Ms Darke = $187,249.86

Disposition 107. I therefore enter verdicts as follows: Accident Claim by Claim against Amount Crane incident Plaintiff Network Welding $461,575.80 (15 April 2000) Plaintiff Kari & Ghossayn $481,355.80 Kari & Ghossayn Network Welding $ 92,315.16 Network Welding Kari & Ghossayn $369,260.64 Ladder incident Plaintiff Network Welding $415,045.38 (2 May 2000) Plaintiff Abigroup $549,264.46 Abigroup Network Welding $ 83,009.08 Network Welding Abigroup $332,036.30 Car incident Plaintiff Ms Darke $187,249.86

109. The defendants are to pay the plaintiff's costs of the re-trial as agreed or assessed, on the ordinary basis.

110. Ms Darke is to pay the plaintiff's costs of the first trial, save for those costs that relate to the application under s 61(4) of the Motor Accidents Compensation Act 1999, as agreed or assessed, on the ordinary basis.

111. I stay the judgment against Ms Darke pending appeal.

112. I stay the other judgments pending appeal on condition that each party concerned pay 50% of the judgment for which they are liable, on or before 8 June 2007.

114. The exhibits are to remain in court for 28 days, after which period they may be returned to the parties.

Notes:

1. On 30 April 2007 I delivered preliminary Reasons for Judgment in which I made all relevant findings apart from the adjustments required under s 151Z of the Workers Compensation Act 1987 (NSW). I deferred the entry of verdicts and judgments pending argument on that issue, which took place on 9 May 2007. These final Reasons for Judgment incorporate those preliminary Reasons for Judgment, as adjusted by agreement between the parties as to some calculations of non-economic loss, and the adjustments which I consider are required under s 151Z of the Workers Compensation Act 1987 (NSW).
2. Corrections to the Reasons were made under the slip rule on 7 June 2007, with the consent of the affected parties, to correct a calculation in paragraph 84, and to make consequential changes to figures in paragraphs 97, 99, 102, 106 and 107.

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