Gong v AWI Steel Pty Limited

Medium Neutral Citation: Gong v AWI Steel Pty Limited [2026] NSWSC 331

Hearing dates: 13 – 20 October 2025; 1 – 4 December 2025

Date of orders: 9 April 2026

Decision date: 09 April 2026

Jurisdiction: Common Law

Before: Schmidt AJ

Decision: 1. Confer about the final calculations of Mr Gong’s damages and the terms of the final orders, including as to costs.
2. File proposed orders within 14 days.
3. In the event of any dispute, they should also file and serve within that time, a short outline of submissions addressing what remains in issue.

Catchwords: NEGLIGENCE — personal injury — where plaintiff worked at a factory as a contractor — plaintiff injured when a metal plate slipped and fell — whether factory owner owed plaintiff a duty of care — whether duty owed to plaintiff breached — whether plaintiff was contributorily negligent — nature of injuries caused by the accident — whether plaintiff entitled to claimed damages
EVIDENCE — witness evidence — reliability and credibility of witness testimony — inconsistent and contradictory oral evidence — difficulties with interpretation of evidence — conflicting expert evidence about the diagnosis of PTSD

Legislation Cited: Civil Liability Act 2002 (NSW), ss 3, 5B, 5C, 5D, 5E, 5R, 5Q, 12, 13, 15, 16
Evidence Act 2005 (NSW), s 79
Motor Accidents Compensation Act 1999 (NSW), s 126
Workers Compensation Act 1987 (NSW), s 151Z(2)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited: AA v The Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle [2026] HCA 2
Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420; [2009] HCA 48
Allard v Jones Lang Lasalle (Vic) Pty Ltd [2014] NSWCA 325
Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13
Arthur Robinson (Grafton) Pty Ltd v Carter (1968) 122 CLR 649; [1986] HCA 9
Avopiling Pty Ltd v Bosevski [2018] NSWCA 146
Bevillesta Pty Ltd v Liberty International Insurance Co [2009] NSWCA 16
Bird v DP (A pseudonym) [2024] HCA 41; (2024) 98 ALJR 1349
Bostik Australia Pty Ltd v Liddiard & Anor [2009] NSWCA 167
Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34
Colonial Mutual Life Assurance Society Ltd v Producers & Citizens Co-operative Assurance Company of Australia Ltd (1931) 46 CLR 41; [1931] HCA 53
Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320
Czatyrko v Edith Cowan University [2005] HCA 14; (2005) 214 ALR 349
Davies v Adelaide Chemical & Fertiliser Company Ltd (1946) 74 CLR 541; [1946] HCA 47
De Martin & Gasparini Pty Ltd v Bartlett [2025] NSWCA 56
Donald v McKeown [2004] NSWCA 285
Fox v Wood (1981) 148 CLR 438; [1981] HCA 41
George v Survey [2009] NSWSC 1348
Gestmin SGPS S.A. v Credit Suisse (UK) Limited [2013] EWHC 3560 (Comm)
GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 280 CLR 442; [2023] HCA 32
Graham v Baker (1961) 106 CLR 340; [1961] HCA 48
Hartnett v Trustees of the Roman Catholic Church for the Diocese of Wilcannia-Forbes [2026] NSWCA 35
Hollis v Vabu Pty Ltd (2001) 207 CLR 21; [2001] HCA 44
Husher v Husher (1999) 197 CLR 138; [1999] HCA 47
J Blackwood & Son Steel & Metals Pty Ltd v Nichols & Anor [2007] NSWCA 157
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
Kondis v State Transport Authority (1984) 154 CLR 672; [1984] HCA 6
Laresu Pty Ltd v Clark [2010] NSWCA 180
Leighton Contractors Pty Ltd v Fox (2009) 240 CLR 1; [2009] HCA 35
Longman v The Queen (1989) 168 CLR 79; [1989] HCA 60
Malec v JC Hutton Pty Limited (1990) 169 CLR 638; [1990] HCA 20;
Manhattan Homes Pty Limited v Burnett [2024] NSWCA 219
Mason v Demasi [2009] NSWCA 227
McDonald v The Commonwealth (1945) 46 SR (NSW) 129
Mead v Kerney [2012] NSWCA 215
Miller v Galderisi [2009] NSWCA 353
Mt Owen Pty Ltd v Parkes [2023] NSWCA 77; 324 IR 34
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170; (1992) 110 ALR 449
Nguyen v Cosmopolitan Homes [2008] NSWCA 246
Nominal Defendant v Lane [2004] NSWCA 405
Nominal Defendant v Livaja [2011] NSWCA 121
Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; (1985) 59 ALJR 844
Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALR 529
QBE v Orcher; Bowcliff v Orcher [2013] NSWCA 478
Rabay & Anor v Bristow [2005] NSWCA 199
Rail Corporation New South Wales v Donald; Staff Innovations Pty Ltd t/as Bamford Family Trust [2018] NSWCA 82
Ray v Southon [2022] NSWCA 267
Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330; [2007] HCA 42
Sampco Pty Ltd v Wurth [2015] NSWCA 117
Sangha v Baxter [2009] NSWCA 78
Shaw v Thomas [2010] NSWCA 169
South Western Sydney Local Health District v Sorbello [2017] NSWCA 201
St Paul’s College Ltd v Allan [2026] NSWCA 22
State of New South Wales v Moss [2000] NSWCA 133
Stevens v Brodribb Saw Milling Co Pty Ltd (1986) 160 CLR 16; [1986] HCA 1
Strong v Woolworths Ltd (2012) 246 CLR 182; [2012] HCA 5
Sweeney v Boylan Nominees Pty Ltd (2006) 226 CLR 161; [2006] HCA 19
Todorovic v Waller (1981) 150 CLR 402; [1981] HCA 72
Vairy v Wyong Shire Council (2005) 223 CLR 422; [2005] HCA 62
Vincent v Woolworths Ltd [2016] NSWCA 40
Watson v Foreman (1995) 49 NSWLR 315
White v Redding (2019) 99 NSWLR 605; [2019] NSWCA 152
Wyong Shire Council v Shirt (1980) 146 CLR 40; [1980] HCA 12

Category: Principal judgment

Parties: Sungchell Gong (Plaintiff)
AWI Steel Pty Ltd (First Defendant)
Ebenezer Engineering Pty Ltd (Second Defendant)

Representation: Counsel:
S E McCarthy and W J Lidden (Plaintiff)
R Perla (First Defendant)
Solicitors:
Park & Co Lawyers (Plaintiff)
Wotton Kearney (First Defendant)

File Number(s): 2022/387580

Publication restriction: Nil

JUDGMENT

1. In April 2021 Mr Gong, a boilermaker/welder originally trained in South Korea, was injured after working for only a few days at the factory of AWI Steel Pty Ltd. The accident occurred when he attempted to manually lift and flip a very heavy metal plate on which he had grinding work to perform. The plate slipped and fell, striking Mr Gong and causing various injuries, the most serious to his foot. He was taken to hospital where he was treated and discharged later that day. But despite how his physical injuries healed, he has never again returned to work and now walks with a pronounced limp.

2. Mr Gong seeks damages from AWI for the ongoing results of the physical and psychological injuries which he claims he suffered because of the accident, as well as for other alleged damages. He relies on expert evidence to establish that the results of his injuries include that it is unlikely that he will ever work again.

3. AWI resists Mr Gong’s claims and has brought cross-claims against both him and Gong Engineering Pty Ltd, the company which employed him at the time of the accident, of which he was the sole employee and his wife the director. AWI also pursues a claim against Gong Engineering under s 151Z of the Workers Compensation Act 1987 (NSW). Ebenezer Engineering, to whom Gong Engineering provided Mr Gong’s services, no longer operates and no orders are sought against it.

4. It is not disputed that Mr Gong was working at AWI’s factory because AWI had engaged Ebenezer to provide it with labour and also to supervise the native Korean speakers it provided, including Mr Gong. That supervisory role was undertaken at its factory by Mr Gim, who is bilingual. His services having been supplied to Ebenezer by another company, which is not a party to the proceedings.

5. The evidence also establishes that the various contractual relationships were not well understood by those working at the factory. These arrangements were never documented, with the result that workers provided by Ebenezer had raised concerns with AWI managers about Mr Gim’s authority to direct and to dismiss them. Whether the workers had ever complained about Mr Gim’s behaviour towards them to AWI managers, was disputed.

6. But there is no dispute that it was Mr Gim who recruited labour for AWI’s factory by word of mouth, as well as through a Korean online message board. Or that many of those he recruited, including Mr Gong, had a limited command of English. AWI relied on Mr Gim, whose command of English enabled him to communicate with its managers in English and to communicate with the Korean-speaking workers Ebenezer supplied.

7. Although for a period, AWI itself employed one Korean speaker, upon whom Ms Ryan, the Safety, Quality and Environment Manager, relied to help communicate with Korean workers. Otherwise, AWI relied on Mr Gim, including for the induction of the workers Ebenezer supplied.

Conclusion

31. For reasons which follow, despite the evidentiary difficulties which had to be resolved, in short summary I have concluded that:

32. The unsafe way in which AWI conducted its operations at its factory was as Mr Gong and other witnesses, including finally Ms Ryan and Mr Gim, described;

33. The photographs AWI relied on not did not establish the state of the factory at the time of the accident. Other photographs which it possessed, which did show its then state, were not tendered. That also supporting the acceptance of the evidence of Mr Gong and witnesses he called;

34. It was obvious that the heavy metal plate Mr Gong was given to grind could not safely be flipped manually, given its considerable weight, despite both Mr Gong and Mr Gim having described that weight quite differently, at various times;

35. The plate was so heavy that it could not safely be flipped manually by Mr Gong alone;

36. AWI did not have a safe system of work which ensured that Korean speaking workers Ebenezer provided were inducted, trained and supervised in safe manual handling, when performing the heavy work they were given to undertake;

37. AWI’s manual handling policy, not being in practical operation, so far as the Korean speaking Ebenezer workers were concerned;

38. Under its system, it was AWI who supervised Ebenezer workers, as well as its own employees, with Gong Engineering playing no role in the work performed at the factory;

39. AWI’s supervision did not prevent Mr Gong from attempting to manually flip the plate, or Mr Gim directing him to do so;

40. The accident in which Mr Gong was injured was caused by the direction Mr Gim gave Mr Gong to flip the plate manually, which was unsafe and resulted in it slipping and injuring him;

41. The risk that Mr Gong would be injured when attempting to flip the heavy metal plate manually, which materialised, was so obvious that not only AWI and Mr Gim, but also a qualified and experienced boilermaker such as Mr Gong, ought to have appreciated its existence at the time he attempted to flip the plate;

42. The result was that Mr Gong ought not to have been instructed, attempted, or permitted to attempt to flip the plate manually;

43. AWI and Mr Gong must both bear the consequences of their respective contribution to the accident which resulted in the injuries which he suffered as a result, for which AWI bears the greatest responsibility;

44. Mr Gong’s damages must be reduced, to reflect his contribution;

45. But account must also be taken of Mr Gong’s acquiescence to Mr Gim’s instruction, having been driven by Mr Gim’s bullying and threats which other workers had also experienced, when the extent of his contributory negligence is assessed; and

Issues

32. The parties agreed that:

“1 The plaintiff was employed by Gong Engineering Pty Ltd as a boilermaker/welder.

2 The first defendant used premises at 36 Day Street North Silverwater NSW to carry out its business of undertaking projects involving steel fabrication for various purposes.

3 The second defendant contracted with the first defendant to provide steel manufacturing and welding services through its subcontractors, including the plaintiff's employer.

4 On 12 April 2021 the plaintiff attended the premises at 36 Day Street North Silverwater pursuant to an agreement between his employer and the second defendant to undertake boilermaking/welding work at the first defendant's premises.

5 At all material times whilst upon the premises, the plaintiff took his direct instructions from an employee of the second defendant, Mr Gim.

6 The plaintiff sustained an injury on 12 April 2021 when a steel plate fell on him at the premises at 36 Day Street North Silverwater.”

33. They also finally agreed that the risk of harm to which Mr Gong was exposed was the risk of a worker suffering injury by manually manipulating the plate without mechanical assistance by a crane. That being the true source of potential injury: Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330; [2007] HCA 42 at [60].

34. There was also no issue between the parties:

35. That the Civil Liability Act 2002 (NSW) applies to the competing claims;

36. That Mr Gong bears the onus of proving any fact relevant to the issue of causation: Civil Liability Act, s 5E;

37. That AWI owed Mr Gong a duty as occupier of the factory and that Mr Gong was also owed a duty by his employer, Gong Engineering;

38. That the alleged negligence of AWI and Gong Engineering has to be determined in accordance with ss 5B and 5C of the Civil Liability Act;

39. That whether such negligence caused the harm Mr Gong claims he suffered must be determined in accordance with s 5D; and

40. Mr Gong’s claimed contributory negligence must be determined in accordance with s 5R.

41. The parties also agreed that what was in issue concerned:

42. the reliability and credibility of Mr Gong, Mr Gim and other witnesses;

43. whether Mr Gim took direct instructions from AWI employees at material times while at AWI’s factory;

44. whether Mr Gim directed Mr Gong to manually flip the plate;

45. whether Mr Gong was properly inducted into AWI’s factory by Mr Gim or at all;

46. whether AWI owed Mr Gong a duty of care, and if it did, the scope and content of that duty;

47. whether AWI properly delegated any duty of care to Ebenezer;

48. whether AWI breached its duty of care to Mr Gong and whether any breach caused harm to Mr Gong;

49. whether Ebenezer acted as AWI’s agent at material times;

50. whether the task Mr Gong was required to perform posed a risk of harm that was an obvious risk of personal injury;

51. whether the defence of contributory negligence had been made out and, if so, any such apportionment;

52. whether Mr Gong acted with knowledge of risk of injury or damage to himself and voluntarily consented to accept such risk; and

53. whether or to what extent Mr Gong’s entitlement to damages (if any) be reduced in accordance with s 151Z(2) of the Workers Compensation Act as a result of the negligence (if any) of Gong Engineering.

“a. Did Mr Gim give instructions to the plaintiff to lift the plate manually?

b. Did he threaten the plaintiff into doing so?

c. Whose system of work was Mr Gim abiding by?

d. Whose system of work was the plaintiff abiding by?

e. Did the first defendant exercise ultimate control over that system?

f. Was the plaintiff given any sort of safety induction upon starting at the premises?

g. Was there a general culture of inadequate safety at the factory and if so, was this the fault of the first defendant?

h. If there was a general culture of poor safety at the factory, did this contribute to the accident?

i. Was Mr Gim acting as the first defendant’s agent?

j. Did the plaintiff suffer psychiatric injuries in the accident?

k. The qualification of the plaintiff’s loss.”

37. As well as:

“a. Was a licence required to use the crane?

b. Had the plaintiff operated the crane at all prior to his injury?

c. If so, was he or any other witnesses trained in how to safely operate it?”

38. The relevant principles which have to be applied in resolving all that is in issue were also largely not disputed. They include:

39. Employers such as AWI and Gong Engineering owe their employees a non-delegable duty of care which requires, if there is a risk of injury to the employee, the employer to take reasonable care to avoid the risk by devising a method of operation for the performance of their tasks which eliminates the risk, or provides adequate safeguards: Czatyrko v Edith Cowan University [2005] HCA 14 at [12]; (2005) 214 ALR 349;

40. The obligation to provide a safe system of work may extend to independent contractors who are engaged to perform work which may be done by employees, in circumstances where there is a risk of injury, given the nature of the work: Stevens v Brodribb Saw Milling Co Pty Ltd (1986) 160 CLR 16 at 31; [1986] HCA 1 at [26];

41. In such a case, the principal has a duty to use reasonable care to avoid unnecessary risk of injury and to minimise other risks of injury: Leighton Contractors Pty Ltd v Fox (2009) 240 CLR 1; [2009] HCA 35 at [20];

42. Workers also have a responsibility to take care for their own safety;

43. If it is reasonable to engage the services of independent contractors who are competent themselves to control their system of work without supervision by the principal, a duty to retain control will not be imported: Brodribb at [2];

44. Once an activity has been organised and its operation is in the hands of independent contractors, liability for negligence within their area of responsibility is not borne independently by the principal: Brodribb at [2];

45. Where a risk of injury arises from the nature of work and there is a need for direction and co-ordination of the various activities being undertaken, the principal will have a duty to prescribe a safe system of work: Leighton at [62];

46. A defendant is not vicariously liable for the tortious act of a worker who is not its employee, if the defendant has no authority to control the doing of the act and does not directly authorize it, even if the tortious act is done in performing work for the defendant’s benefit: Kondis v State Transport Authority (1984) 154 CLR 672 at 692; [1984] HCA 6;

47. Prima facie, the worker’s employer is vicariously liable for the tortious act. But if the employer is able and has transferred authority to control the doing of that act to the defendant, the defendant is liable. The nature and extent of the control transferred to the defendant or retained by the employer determines whether there is a shift of such liability from the employer to the defendant: at 692;

Other undisputed facts

39. What is in issue thus has to be approached considering what was not disputed, including Mr Gong’s unchallenged background.

40. On his evidence Mr Gong was born in North Korea, from where he unsuccessfully tried to escape more than once, and was imprisoned and tortured as a result. He finally escaped to South Korea, having lived and travelled through China and Cambodia. There he obtained a trade qualification, married twice and had children, before migrating to Australia with his family. Here he obtained further trade and other qualifications and worked as a boilermaker elsewhere, before commencing work at AWI’s factory for Ebenezer, under its arrangement with Gong Engineering.

41. Before the 2021 accident, a few days after he commenced work at AWI, Mr Gong had never suffered any physical or psychological impairment, despite his challenging life experiences. His undoubted resilience resulted in a disagreement between the psychiatric experts. They not being able to agree whether his past experiences had protected him from the PTSD he was diagnosed to have suffered after the accident, or whether it predisposed him to succumb to psychiatric injury.

42. As a result, while they did not agree that he suffered PTSD, they did agree that he had developed a depressive condition as the result of the accident, from which he continues to suffer.

43. Mr Gong was wearing steel toed safety boots, but the plate struck a part of his foot not protected by the steel toe. There is no issue that the crush injury to Mr Gong’s foot was treated at Auburn Hospital, from which he was discharged later that day. He then wore a boot for some months, as well as using a wheelchair and crutches for a considerable time. While his physical injuries healed and he continued to receive a great deal of later treatment, Mr Gong continues to walk with a pronounced limp.

44. The orthopaedic experts agreed that the 2021 accident only caused Mr Gong relatively minor physical injuries from which a full recovery within several months would ordinarily be expected, after his soft tissue damage and the bone fracture in his foot healed.

45. But Mr Gong no longer has a normal gait. Even now still complaining of considerable ongoing pain and discomfort. This accords with him having been diagnosed after the accident, after he did not recover as expected, to be suffering complex regional pain syndrome for which he has also received treatment. But still he continues to suffer ongoing pain.

46. The experts agreed that this was the likely result of both ongoing neuropathic pain and the impact of his psychiatric condition. When both orthopaedic experts examined him, they concluded that he did not then satisfy the Budapest criteria by which CRPS is usually diagnosed. But that he is still suffering ongoing pain, was accepted by both of them.

47. Whether Mr Gong’s ongoing complaints about the symptoms he continues to suffer all reflect the ongoing consequences of the 2021 accident or, at least in part deliberate exaggeration, was in issue.

Reliability and credibility

58. What finally remained in issue included whether Mr Gong and the witnesses he called had exaggerated, or not been entirely truthful in their evidence. AWI’s case being that Mr Gong was an unreliable witness and that the evidence of those he called could not be preferred. This was due to, in his case, the very different accounts he has given of the plate’s weight, ranging from over 100 kg to up to 400-500 kg, and matters such as the number of times he asked Mr Gim to use the crane, before he attempted to manually flip it and where Mr Gim was when the plate fell.

59. In Mr Gong’s case it also being pertinent that some experts had formed the view, on functional testing, that he had not been entirely truthful, with some results considered invalid and others inconsistent. For example, there was one account of Mr Gong having refused to attempt to crouch, because that was then too painful, but later doing so in order to demonstrate something else.

60. I am unable to accept that this established a basis on which Mr Gong’s evidence could be rejected, or the evidence of others preferred, given the evidence of the experts about CRPS, the consequences of his ongoing neurological pain and the impact of the psychological condition, which I am satisfied Mr Gong developed. As well as concessions which were made by other experts in cross-examination, which were relevant to adverse views others had earlier formed about Mr Gong.

61. In the case of the evidence of witnesses AWI called, whether their evidence could be accepted, or preferred when it contradicted that given by Mr Gong and those he called, was also in issue.

62. It is pertinent that the oral evidence of Korean speaking witnesses was given with the assistance of interpreters. In their cross-examination, they explaining why some matters had not been dealt with in their written statements, their statements reflecting questions they had been asked and answered. And the interpretation shedding light on some of the potential deficiencies of that process, which can be affected not only by how questions are asked, but also by the quality of an interpretation.

63. There is no question that Mr Gong has given those who have treated or examined him very different accounts of the weight of the plate which fell and injured him. But so did Mr Gim.

64. AWI also relied on Mr Gong being unable to identify the handwriting on invoices Gong Engineering issued after his accident, to urge the conclusion that he was not a credible or reliable witness. I am also unable to accept this.

65. Mr Gong’s evidence included that his wife had attended to Gong Engineering’s financial affairs, as well as his own, including all of his workers compensation matters and tax returns, with the assistance of an accountant. With the result that he was unsure that the writing he was shown was hers, or that what had been submitted was true and correct.

What duty did AWI owe Mr Gong?

87. Given the way in which AWI arranged the engagement and induction of Ebenezer workers by Mr Gim and the allocation and supervision of their work both by Mr Gim and Mr La Rosa, it is apparent that it actually recognised that it owed Ebenezer workers a duty of care. Just as it owed such a duty to those it directly employed to work at its factory, with whom Ebenezer tradesmen worked side by side, under the overall supervision of Mr La Rosa. He controlling the work performed, including the use of the crane, issuing directions to Mr Gim, who conveyed them to Ebenezer workers and at times also dealing with them directly.

88. AWI’s duty being to use reasonable care to avoid unnecessary risk of injury to all those who worked together at its factory, including the Ebenezer workers, given the risk of harm to which they were exposed, given the work AWI’ had them perform there.

89. I am thus unable to accept the case AWI pressed.

90. Namely, that it conducted a business of undertaking projects using steel fabrication at its factory, having contracted Ebenezer to provide steel manufacturing and welding services there and requiring Ebenezer to both induct the workers it supplied and to supervise them, Mr Gim them instructions on behalf of Ebenezer. The evidence establishing that this was not a case where AWI had retained and exercised any supervisory power over the Ebenezer workers: Leighton at [20].

91. Given all of the evidence, that may not be accepted.

92. It is long recognised that in some circumstances, a principal will come under a duty to use reasonable care to ensure that a system of work for one or more independent contractors is safe: Brodribb at 31. The evidence established the one system under which both AWI’s own employees and those supplied by Ebenezer were required to work together at its factory under Mr La Rosa’s overall control, direction and supervision. He communicating to the Ebenezer workers through Mr Gim.

93. There was no suggestion of any failure to take reasonable care in the employment of the Ebenezer contractors. But even if it were accepted that they were competent to control their own systems of work, AWI did not allow them or third parties such as Gong Engineering to exercise such control. Rather, requiring the contractors to adhere to the system which it had devised, in which it required them to be inducted. It also retaining supervisory power over them and their work, exercised by Mr La Rosa, to whom Mr Gim reported.

94. This, it must be accepted, establishes that what AWI relied on could not establish that it had left Ebenezer with an area of responsibility, which had the result that it was not “liable for damage caused merely by a negligent failure of an independent contractor to adopt or follow a safe system of work either within his area of responsibility or in an area of shared responsibility.”: at 47-48.

Agency

120. Their absence also supports the conclusions I have arrived at about agency.

121. The undocumented contractual arrangements between the various companies involved in providing AWI with Korean workers, alone, could not establish the claimed agency. The mere fact that Ebenezer workers carried out work for AWI’s benefit not being sufficient: Colonial Mutual Life Assurance Society Ltd v Producers & Citizens Co-operative Assurance Company of Australia Ltd (1931) 46 CLR 41 at 48-9; [1931] HCA 53.

122. The contractual arrangements were plainly not well understood by workers supplied by Ebenezer. That also being evidenced by the disagreement, after the accident, about who had responsibility for Mr Gong’s injury and workers compensation entitlements.

123. AWI relied on Ebenezer having pursued its own interests to supply labour to work at its factory, to establish that Ebenezer did not act as its representative, when engaging workers such as Mr Gong. Generally, a principal is not liable for the negligence of an intermediate contractor such as Ebenezer: Hollis v Vabu Pty Ltd (2001) 207 CLR 21 at 36; [2001] HCA 44 at [32]. The central notion of agency being actual or apparent authority to act as a representative of, or on behalf of the principal.

124. On the evidence, AWI gave Mr Gim such authority when it required him to induct Ebenezer workers in its system and to report to Mr La Rosa and convey, under his supervision, his decisions about the work to be undertaken to the Ebenezer workers.

125. Even if agency was established, AWI denied any liability for Ebenezer’s negligence. On its case, there being no evidence that it had specifically instigated, authorised or ratified Ebenezer’s wrongful act, or that Ebenezer had made a relevant statement in the course of representing AWI, within its actual or apparent authority. Nor could AWI be taken to have assumed responsibility for Ebenezer’s actions.

126. I am satisfied that this cannot be accepted.

127. Ms Ryan gave evidence about how AWI required Mr Gim to conduct inductions for the workers Ebenezer supplied. This required him to use documents she had created, which he translated into Korean, to induct them in AWI’s systems, including its manual handling policy. It was also posted on factory walls, but was not there translated into Korean.

128. This aspect of AWI’s system helped establish that Ebenezer was AWI’s agent. Its supervision and control of Mr Gim, who had to report to Mr La Rosa, who gave the directions Mr Gim conveyed to the Ebenezer, confirming that agency. What Mr Gim undertook as a result, having been done with AWI’s authority and for its benefit, rather than for Ebenezer’s benefit. What he was required to do not having been done in Ebenezer or his own independent capacity.

Did AWI breach the duty it owed Mr Gong?

137. AWI’s case was that much on which Mr Gong relied to establish its claimed negligence had no causal potency. Finally contending that, despite all that the parties had joined issue over, Mr Gong’s reliance upon induction and other problems to establish his case had no relevance. Mr Gong had known that he should use the crane to flip the plate, with the result that the alleged failures he relied on did not help establish his case, that the cause of his claimed injuries was AWI’s negligence.

138. I am satisfied that this cannot be accepted and that Mr Gong did establish his case.

139. Section 5B of the Civil Liability Act is concerned with precautions being taken against a risk of harm. A defendant is liable in negligence if the risk in question was foreseeable, that is, one of which the person knew or ought to have known; it was not insignificant; and in the circumstances, a reasonable person in that position would have taken those precautions: s 5B(1).

140. That imposing a more demanding standard than that explained in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 48; [1980] HCA 12, that a risk “which is not far-fetched or fanciful” was “real and therefore foreseeable” but “not by very much”: Shaw v Thomas [2010] NSWCA 169 at [44]. That not being particularly demanding: Rail Corporation New South Wales v Donald; Staff Innovations Pty Ltd t/as Bamford Family Trust [2018] NSWCA 82 at [140].

141. The requirements specified in s 5B(2) to be considered being:

“(a) the probability that the harm would occur if care were not taken,

(b) the likely seriousness of the harm,

(c) the burden of taking precautions to avoid the risk of harm,

(d) the social utility of the activity that creates the risk of harm.”

142. I am also satisfied that Mr Gong has met the onus of establishing all that s 5B requires. Account again having to be taken of Mr La Rosa not having been called. Despite him undoubtedly having relevant evidence to give about matters such as AWI’s system, the use of the crane, his involvement in the supervision and direction of the Ebenezer workers, the use to which Mr Gim was put and how manual lifts were undertaken when required. But he was not called.

143. Section 5Q provides that a defendant’s liability for breach of a non-delegable duty to ensure that reasonable care is taken by a person in the carrying out of any work or task delegated or otherwise entrusted to the person by the defendant, is to be determined as if the liability were the vicarious liability of the defendant for the negligence of the person in connection with the performance of the work or task.

144. AWI criticised the way in which Mr Gong had pleaded particulars of its alleged negligence. Submitting, among other things, that the evidence had not established that it had required or permitted Mr Gong to lift the plate manually, and that it had not had a reasonable opportunity to intervene, to prevent or prohibit Mr Gim from pressuring Mr Gong to do so. There being no evidence that one of AWI’s employees had witnessed the disputed direction, if given, and that the evidence had not established how it should have ensured that Mr Gim did not do so.

145. AWI also submitted that the Court would not accept that the evidence established that its system of work involved workers lifting heavy items without the use of a crane. And that the Court would not accept that heavy items were lifted without its use. The evidence also not having established how AWI ought to have ensured Mr Gim was prohibited from instructing workers to lift heavy items, without its use. Nor what would have involved proper supervision of such activities.

146. AWI also contended that it had been Ebenezer who was responsible for managing its own subcontractors and how they worked. The ad hoc supervision provided by its personnel on the factory floor, Ms Ryan’s safety inspections and toolbox talks, having been sufficient to satisfy its obligations.

147. AWI also argued that Mr Gong had not established that the risk in issue was not insignificant, nor how a reasonable person in its position could have implemented precautions which would have prevented the risk of the plate falling from materialising.

148. I am satisfied that AWI’s case, so pressed, cannot be accepted.

149. This not being a case like that considered in Vincent v Woolworths Ltd [2016] NSWCA 40, where the unlikelihood or very low probability of the occurrence of injury was such as to lead the Court to find that s 5B(1)(b) had not been satisfied: at [33]-[37].

150. This conclusion begins with a consideration of the type of work undertaken at AWI’s factory, which required heavy metal objects on which both its own employees and Ebenezer workers had to undertake grinding and welding work, being moved to their workbenches by crane. And also being moved during the course of such work. Sometimes by hand.

“When a manual lift is required use of mechanical aid (such as the Overhead

Crane or Forklift) should be the first option. If this is not possible due to

restrictions, a team lift is the next best option.

When lifting objects on your own it is important to use proper techniques,

these include:

1. Check where the item has to be placed and that you have clear access to this area.

2. Stand as close as possible to the object to be lifted.

3. Keep your back straight and bend your knees.

4. Lift with your legs, NOT with your back.

5. Do not lift a load too high, i.e. above your waist.

6. Keep the load close to your body while lifting and carrying.”

7. AWI’s own system thus contemplated manual lifts of the kind Mr Gong attempted, being undertaken. Even if a better option would have been a team lift, given its weight. That was no doubt permitted because AWI’s one crane did not have sufficient capacity to undertake all lifts required in its factory.

8. Given this aspect of AWI’s system of work and its direct supervision of the Ebenezer contractors who were working alongside its own employees by Mr La Rosa, to whom Mr Gim reported and supervised his work, it cannot be accepted that the supervision it maintained over their work was only “ad hoc”. Rather, it was constant, Mr La Rosa at times also communicating directly to Ebenezer workers and Ms Ryan and other managers and even the owner at times being on the floor.

9. AWI controlling not only the work allocated, but also the use of its crane by all who worked there and any manual lifts undertaken.

10. On the evidence, the risk of a worker suffering injury when manually manipulating a heavy plate without the use of a crane was thus foreseeable. That was why the policy provided for team lifts being the preferable method.

11. I am persuaded by all that has to be considered that AWI did not safely manage its requirement for manual lifts through the induction it arranged for Ebenezer workers, its safety documents, the training it arranged for those workers, or by the supervision actually given by Mr Gim and Mr La Rosa. Including when Mr Gong was injured, on his evidence Mr Gim then having moved to the other side of the factory.

12. The risk of a metal item, which was too heavy to safely lift manually, falling and injuring a worker was obvious and not insignificant. It could easily have been addressed by use of the crane and if it was not available when needed, in the case of heavier items, by a team lift.

13. After the accident, AWI installed a second crane. The risk could also have been addressed by AWI giving specific directions about when manual lifts should not be undertaken, what weight required a team lift, or requiring manual lifts only to be undertaken when supervised. The work method statement did not do so, as it could have. Nor, I am satisfied, were the risks involved in manual lifts otherwise safely managed.

14. In the circumstances established by the evidence, a reasonable person in AWI’s position would have taken such precautions.

AWI’s system of work

165. The factory is open plan. On a mezzanine level, there are offices from which the factory floor can be observed by AWI managers. Mr Gong identified two Caucasian men who he knew only as the owner and the manager, who he understood gave Mr Gim his orders. But no evidence was called from either of them.

166. Neither Mr Gim, Mr Gong nor other workers who gave evidence, other than AWI’s safety officer Ms Ryan, were employed by AWI at the time of the accident. Mr Bak was then an Ebenezer worker and is now employed by AWI. Mr Gim is now again working at the factory, his services being provided by a different company.

167. In cross-examination, Mr Bak agreed that before Mr Gim left in 2022, he received his instructions from him and that when he returned, Mr Gim stepped back into his old role, which he continued to perform. That did not accord with Ms Ryan’s evidence, but was finally established in Mr Gim’s cross-examination.

168. On all the evidence, it must be accepted that at the time of the accident, AWI’s system included Mr Gim recruiting Ebenezer workers and facilitating the direction of their work at the factory by Mr La Rosas supervision, that according with Mr Gim reporting to Mr La Rosa, not anyone at Ebenezer.

169. There is no issue that under the applicable safety legislation, obligations in relation to ensuring safety were imposed on AWI, Ebenezer, and the companies it contracted with to supply the workers it provided to AWI, including Gong Engineering. As well as on the workers themselves, who were tradesmen.

170. The accident shed light on deficiencies in AWI’s system, which had not ensured safety. AWI later changed aspects of its system, including by the installation of a second crane and how it communicated with Korean speaking workers about safety matters.

171. Ms Ryan explained how AWI arranged its system of work and met its safety obligations at the time of the accident, including by having Mr Gim translate safety information into Korean. Because many of those working at the factory were native Korean speakers, various safety signs written in both English and Korean were located around the factory, as were some “in pictogram form, so that it can be understood by non-English speaking workers”.

172. The evidence establishing that the manual handling which it permitted, was not in practice confined to lifts of items weighing less than either 20 or 25 kg, to which reference was variously made in the oral evidence, to which no reference was made in the policy.

173. But the evidence also not establishing that they were informed about AWI’s manual handling policy, which was not posted in Korean around the factory and did not, in any event refer to such weights.

174. Mr Gim’s evidence included that he gave workers an extra explanation of the induction document, to indicate more than 25 kg should not be lifted and Ms Ryan’s that she had referred to 20 kg lifts in safety talks. I am unable to accept that this was in fact conveyed to the Ebenezer workers, given the evidence of manual lifts actually undertaken.

Supervision

177. I am satisfied that the evidence established that AWI did not discharge its duties by delegating the supervision of the Korean speaking workers Ebenezer provided to Ebenezer, when they worked under the system it implemented at its factory. And that it did not require workers to be supervised when undertaking manual lifts.

178. AWI retained its overall control and supervision of the Ebenezer workers by having Mr La Rosa direct and supervise Mr Gim, who reported to him. Mr La Rosa not only arranged the work undertaken, including by Ebenezer workers, but also supervised that work, including the use of the crane, mainly communicating with them through Mr Gim, who was also a tradesman who was allocated and performed trade work.

179. Despite this, Ms Ryan’s evidence was that AWI did not investigate the cause of Mr Gong’s accident. She only spoke to him before he was taken to hospital when she provided first aid. She also did not speak to any of those working on the factory floor near him, to establish what had happened. Apart from speaking to Mr Gim, nothing more was done to investigate the accident, despite AWI having become aware that Mr Gong had been injured when attempting to manipulate a very heavy object.

180. That accorded with manual lifts being a part of AWI’s system of work, which was not required to be supervised, or limited by weight.

181. Ms Ryan thus agreed that no specific risk assessment had been undertaken for Mr Gong’s lift, which was only regulated by its manual handling policy. AWI made no specific provision for the supervision of such tasks by the work method statement which Ms Ryan had created after a risk assessment, or by its manual handling policy. They also made no reference to the weight of what could be manually handled.

182. Ms Ryan also said that during her 15-minute safety audits she had observed crane lifts which Mr La Rosa supervised being undertaken, he having instructed those who were to undertake them. She gave no such evidence about observing manual lifts, although she had addressed them in her toolbox talks. That what she then said was conveyed to the Ebenezer workers was not established.

183. Mr Gong did not attend such a talk during the few days he worked at the factory.

The state of the factory

184. Photos of the factory taken after the accident, as well as workshop inspection records Ms Ryan prepared regularly in 2021, were relied on by AWI to help establish the then state of its factory. Those records reflected safe work practices Ms Ryan said were then observed, as well as problems identified and rectified. On her evidence, the factory then had no record of previous accidents.

185. Whether the photographs reflected the state of the factory at the time of the accident, was in issue. Mr Gong and other workers described the factory to have been untidy to the point of being unsafe, with even entrance and egress to the factory being impeded by materials stored there. And workers not being given access to safety equipment when performing their work. That was also in issue.

186. Ms Ryan’s evidence was that at the time of the accident, the factory was in a similar state to that shown in the photos tendered. She was cross-examined about unsafe aspects of what they depicted, including trip hazards and welding screens which had gaps and holes, which she accepted, in part.

187. Ms Ryan also revealed that photos which showed the actual state of the factory at the time of the accident existed. But they were not annexed to her statement nor tendered. The result is that it must be inferred that they would not have assisted AWI’s case as to the state of the factory and safety risks then present there.

188. It follows that it cannot be accepted that the photos AWI relied on to meet the evidence of those workers who described the state of its factory to have been unsafe at the time of the accident, can be preferred.

189. In so far as AWI’s defence rests on such evidence, it cannot be accepted.

Induction

190. On Ms Ryan’s evidence, AWI relied on Mr Gim to induct all new Korean speaking workers Ebenezer introduced, using the induction document she had created, which he had translated. It was she who inducted English speaking workers AWI employed. She was not always present when Mr Gim carried out an induction for Ebenezer workers and could not, in any event, understand what he told them in Korean.

191. I am satisfied that Mr Gong’s evidence that he was not inducted when he began work must be accepted. That was supported by the experience of other workers, with even Mr Bak’s evidence being that he had commenced work at the factory immediately after Mr Gim giving him a brief explanation about how to operate the crane. It was also finally supported by aspects of Mr Gim’s evidence.

192. Mr Bak said that safety instructions were given at toolbox meetings, not on the first day, when he had to sign a booklet to show that he had received some training. It was not produced, but he remembered it included safety rules, including about the load limit of the crane.

193. Mr Y Kim had only met Mr Gong after the accident, and came to give evidence after being approached by Mr Gong’s lawyers. He had worked at the factory for some three months before he quit after, on his evidence, hearing that Mr Gim had been discussing getting rid of him. His evidence was also that he had not received any induction, when he commenced. This was disputed by Mr Gim, who gave quite a different account of why he had come to have a poor view of Mr Y Kim and how he came to leave, which is unnecessary to resolve.

194. Mr Y Kim agreed in cross-examination that as a tradesman he understood he had his own obligations in relation to safety, and he had not raised concerns with Mr Gim about any lack of safety training. But he had no memory of being shown the induction document and denied being told to use the crane, if he had to lift anything heavy.

195. Mr Gim’s evidence was that his inductions were always directed to the written AWI documents. In cross-examination he disclosed, however, that he had only translated those parts of AWI’s document which he thought were important, with the assistance of AI, himself not understanding parts of the document and having had no training in safety matters. What he translated appears not to have been known to AWI, which does not seem to have obtained an English translation of the Korean document Mr Gim created. That it did not accurately reflect all of AWI’s document must follow.

196. AWI at one time itself employed a Korean speaker, but there is no suggestion that he was involved in the induction of Ebenezer workers. Or that he was used to enable AWI to understand what information Mr Gim was actually conveying to those workers, or the directions he was giving them about their work, which Mr La Rosa could not understand.

197. The result, it must be accepted, is that Mr Gong did not receive the induction AWI intended. That he and others Mr Gim inducted did not consider that they had received any induction, other than being shown around the factory, as was also the evidence of Mr S Kim, must be accepted as having had a good foundation. Even Mr Bak’s cross-examination supporting evidence of other workers about the inadequacy of what he was told about, when he commenced work for Ebenezer.

Toolbox talks

201. Ms Ryan’s evidence was that Mr Gim, at the time of the accident, translated what she said in toolbox talks which both AWI employees and Ebenezer workers had to attend. That being when they had the opportunity to raise any concerns. But Mr Gim’s evidence in cross-examination was that, like with induction, he only translated part of what Ms Ryan said at these talks, those which he considered important.

202. That this arrangement gave Ebenezer workers a real opportunity to raise concerns about Mr Gim, or anything else, is not apparent.

203. Mr Bak explained AWI’s current, different practice of providing a Korean translation of what Ms Ryan says at toolbox talks after the meeting, which did not exist at the time of Mr Gong’s accident. With Mr Gim then only providing an explanation of what the talk had been about.

204. In cross-examination, Mr S Kim accepted that the toolbox meetings he described as having been conducted on a random basis as a pretence of safe working practices occurred monthly, he having signed a record of his attendances. Still, it must be accepted that there was a basis for his view that these meetings were a pretence, given what emerged in the cross-examination of Ms Ryan and Mr Gim, about how they were arranged and the limited information actually conveyed to Ebenezer workers.

205. Mr Gim’s evidence establishing that he had no training in safety and his approach according with him not having a good understanding of what it required.

206. There was no issue that Mr Gong had never attended such a talk. On his evidence, he had met Ms Ryan for the first time when she attended on him after the accident, when it was decided to take him to hospital by car, because of the cost of an ambulance.

Manual handling

207. It was AWI’s induction document which referred to its manual handling policy. A work method statement posted in the factory dealt with the crane, under picture grams of workers, but not with manual handling. It said “Double chain lift carried out. Move with the load and never lift over anyone, Communicate”. It follows that these documents did not specify weight restrictions for manual lifts.

208. Ms Ryan was not involved in the supervision of the Ebenezer workers and was only on the factory floor from time to time, also having responsibility for work she undertook for another company which operated out of the same premises. While she had often observed workers waiting to use the crane, she had never observed them being pressured to compromise safety, by attempting manual lifts.

209. There is evidence of Mr Gim often instructing workers to lift weights of more than 25 kg manually to get the job done, without a team lift, and not to wait for the crane. On Mr Kang’s evidence this often occurred in the presence of AWI employees, he believed including Ms Ryan. Given how the factory was organised and the work was supervised and overseen by AWI managerial staff, even if not observed by her, the proper inference is that it was observed by other managers.

210. Mr Gim denied requiring such lifts, but they were not precluded by AWI’s written policies. That AWI had been assessed as complying with various safety standards, as was Ms Ryan’s evidence, does not alter that its policy did not limit weights which could be manually handled. That could be the subject of a safe work method statement, but it was not. In any event, when Mr Gim was cross-examined about his understanding of safe work methods, he had no understanding of that term, and could not even say that he had used that concept in his inductions.

211. The evidence thus accords with no, or at least no adequate steps being taken by AWI, Ebenezer or Mr Gim to train Ebenezer workers, particularly Mr Gong, in this aspect of AWI’s system on induction, or subsequently. Nor did it require workers to adhere to its manual handling policy in their work, which did not impose limits of the kind Ms Ryan and Mr Gim claimed they had explained to workers.

212. The evidence rather accords with AWI having an unsafe approach to manual handling, despite what they claimed.

213. Consistent with the written policy, it is possible that the lift Mr Gong attempted could have safely been undertaken by a team lift, but that was neither party’s case. The policy did not, in any event, specify weights which could be safely lifted by a team lift.

214. This may help explain why AWI did not disclose the actual weight of the plate, which according to Mr Gim, it knew. That, it must be accepted, also does not support the case it advanced.

215. For his part, Mr Gong denied being instructed not to manually lift anything over 20 kg. Other witnesses spoke of having undertaken lifts of over 25 kg, which they knew to be unsafe, but were still required.

Use of the crane

222. Despite there being issues about how AWI’s crane was operated and whether a license to operate it was required, which Ms Ryan did not consider to be necessary, there was no issue that Mr Gong did not attempt to use it when he manually flipped the plate. On his account, as the result of Mr Gim pressuring him not to wait until the crane was available.

223. In her cross-examination Ms Ryan denied any licensing requirement. Consistent with this, whether a worker held such a license was not amongst the information AWI gathered from those who worked at its factory when they commenced. Nor was this dealt with in its induction or other documents.

224. Ms Ryan agreed that safe operation of the crane required instruction on how to do so, given the dangerous work undertaken in the factory by its use. Safety depending on matters such as:

225. the weight of the load;

226. appropriate chains being used, that depending on weight of the load;

227. the need to balance the load; and

228. where those working in the factory were located when loads were moved. The crane, with an eight tonne capacity, at times used to transport very heavy above workers’ heads.

229. AWI had no safe work method statement for the operation of the crane, although on Ms Ryan’s evidence there were diagrams displaying how to secure loads around the workshop. On the evidence, Mr Gim gave some instructions about such matters.

230. There was no issue that, like other workers, Mr Gong did not have a license to operate AWI’s crane. Mr Gong and other workers understood such a license was required to operate the crane, although Mr Gim told them that was not necessary. While this accorded with Ms Ryan’s understanding, AWI did not seek to establish that her understanding was correct.

231. Mr Gong’s evidence that Mr Gim told him to use the crane despite not being licensed to use it, was consistent with the experience of other witnesses, including Mr Bak, who were also unlicensed.

232. On Mr Gim’s evidence initially was that Mr Gong had used the crane at least 20 times in the days he worked at the factory before he was injured, only twice having to wait to use the crane. He having instructed Mr Gong on induction not to lift or move anything over 20 kg and that if he had any doubt, he should use the crane, which he then showed him how to use.

233. This was disputed, as was Mr Gong’s actual use of the crane. In his second statement, Mr Gim accepted he had used it on a few occasions.

234. In his cross-examination, Mr Gim said that Mr Gong may have used the crane as few as five times. As he was only worked a few days before he was injured, it must be accepted that his use of the crane was limited.

Mr Gim pressured Ebenezer staff to undertake manual lifts

237. I am satisfied that instead, the disputed direction was given.

238. Mr Gong’s case was that there were only three possible explanations for how he came to be injured. That Mr Gim had pressured or bullied him to flip the plate manually; that secondary to the unsafe culture in operation at the factory he was pressured to do so; or that of his own accord, he made an irrational decision in circumstances where AWI was blameless, as was its case.

239. His case being that it was Mr Gim who gave him the disputed direction, which resulted in him unsuccessfully attempting alone to flip the plate.

240. Various witnesses gave evidence about the approach adopted by Mr Gim to work they were given to perform, which supported Mr Gong’s case. Although much of the evidence Mr Gong relied on was attacked as unreliable, witnesses’ engagements having been terminated by Mr Gim, for reasons they did not accept. That was disputed.

241. For his part, Mr Gim denied that he had bullied workers, including Mr Gong; required unsafe work to be performed; threatened them with dismissal if they did not accede to his demands to lift heavy items; or had acted disrespectfully towards them, or humiliated them.

242. Mr Gim finally explaining in cross-examination that he had only ever become angry about safety issues, when he required workers to follow the rules to use the crane or a screen, which made him upset at times. But he also said he turned a blind eye to safety problems, not wanting to upset workers. Also denying that there was ever pressure for work to be completed.

243. I am unable to accept Mr Gim’s contradictory evidence, which finally became quite implausible and, I am satisfied, cannot be preferred over that of Mr Gong and other workers, who gave accounts of the treatment Mr Gim denied.

244. Ms Ryan’s evidence was that she had never observed Mr Gim being aggressive or demanding, and had never received complaints about him. But unlike Mr La Rosa, she was not always on the factory floor to observe Mr Gim’s approach to the Ebenezer workers.

245. AWI’s case included that the circumstances which Mr Gong claimed had resulted in his accident were inherently implausible. Given that it was common for workers to have to wait to use its crane, which Mr Gim claimed typically resulted in delays of only up to five minutes. There thus being no rational reason for Mr Gong to have been singled out to work more quickly, or to flip the plate manually, as he claimed.

246. I am unable to accept this.

247. There was no issue that when Mr Gim was injured, work was being delayed because a number of workers had to use the crane, which was often the case at the factory. Mr Gim’s evidence was also that the plate was not urgently needed, so there was no need for him to give Mr Gong the disputed direction. But it is apparent that work was often delayed because the crane did not have sufficient capacity to undertake all required lifts without delay, and that at times the factory was under pressure to produce required work.

Was the disputed direction given?

263. I am also persuaded that it must be concluded that Mr Gim gave Mr Gong the disputed direction to manually flip the plate.

264. Mr Gong had been engaged to perform the work of a welder, but there was no issue about his capacity to perform the grinding work he was given. There was also no issue that having ground down the top edge of the plate, it needed to be flipped so that Mr Gong could work on its bottom edge, although in his cross-examination at one point, Mr Gim sought to cast doubts even on this.

265. While Mr Gong’s evidence about this was not consistent, the evidence establishes that at the time of the accident, Mr Gim was across the factory, having left Mr Gong to his grinding work. Mr Gim accepted that Mr Kang was in a good position to have seen the accident. So was Mr S Kim. In cross-examination, Mr Kang agreed that Mr Gim had gone to the other side of the factory after moving the plate by crane to the trestle table where Mr Gong was to work on it, having spoken to Mr Gong about the grinding work he had to perform.

266. In his first statement, Mr Gong said:

“(b) I approached Mr Gim after completing the grinding of the top face of the panel and requested him to arrange for the crane so that I could work on the opposite face. I made this request multiple times, but Mr Gim responded “I cannot make the crane available right now. It is in use by other workers.”

(c) Despite my repeated requests, Mr Gim refused to provide the crane and instead instructed me to manually flip the panel. He emphasised the urgency of the task, stating that it needed to be completed promptly as per the manager’s requirements. Mr Gim said “Look, we don’t have time to wait for the crane. If you don’t do it manually, I’ll have to send you home.” Worried about the panel’s weight and the risks involved, I expressed my concern, “But the panel is too heavy, and I don’t think I can safely flip it.”

(d) My apprehension about handling such a heavy object was significant. However, due to the insistence of Mr Gim and the fear of losing the job, I felt compelled to proceed without the crane’s assistance. Mr Gim stood at a distance of less than a metre from me, closely observing my actions.

(e) Following Mr Gim's instructions, I attempted to flip and manipulate the panel using only my hand and shoulder, without any mechanical assistance or support from Mr Gim or others. I crouched down to leverage the panel on my shoulder in an attempt to flip it onto the trestles. Unfortunately, as I executed this manoeuvre, the panel slipped from the trestles. It struck my shoulder and arm before ultimately crushing my foot between the panel and the concrete surface of the premises.”

267. In his second statement, Mr Gong explained Mr Gim’s usual anxious manner, irritated tone and demeanour and how, in the first hour on the first day, he had told him, “if you don’t get these things done quickly, the manager will fire you.” As well as how Mr Gim spoke rudely to other workers, threatening to fire them if they did not work faster, swearing and shouting at them, although it was noisy and hard to hear people speak. He saw that Mr La Rosa, referred to by witnesses as the boss or owner, mostly spoke to Mr Gim who conveyed his instructions to the Korean workers, but he also heard them talking about work which had to be done urgently. That accorded with the evidence of other witnesses, including Mr Gim.

268. In his cross-examination, Mr Gim accepted that there were occasions when he got angry, on his account when there were safety issues which he spoke to workers about when they still did not follow the rules. But he also said that he did not really look into safety issues “that closely because that makes people that work there uncomfortable”. Implausibly, he also said that he turned a blind eye to safety issues to avoid hurting people’s feelings.

269. But Mr Gim denied pressuring workers because of pressure he had received from AWI. Volunteering that he had also not fabricated reasons for having become angry with Mr Kang and Mr S Kim.

270. On Mr Gong’s evidence, when Mr Gim gave him the plate to work on, Mr Gim told him it had to go out tomorrow and “so you need to do it really fast. ASAP.” He then had to measure the plate to ascertain its dimensions. After the accident, he had estimated its weight through a mathematical formula he found online.

271. There were difficulties experienced with aspects of the interpretation during cross-examination, partly driven by the questions put including to Mr Gong, despite there being no objections, which appeared to result in certain confusion at times. But Mr Gong denied that he was seeking to change his evidence to advance his case, or to make it fit with that which other witnesses had given.

272. For example, Mr Gong referred to Mr Gim having explained the work he was given by reference to a diagram, to which he had not referred in his statements. But Mr Gim also referred to such diagrams in his cross-examination. That they existed and were discussed, cannot sensibly be rejected, despite not having been referred to in statements.

273. In his cross-examination, Mr Gong was also asked about a statement he had earlier made to an investigator, Mr Cunningham, which he had never signed or adopted. Not much can be made of this. The statement not having been tendered and Mr Gong not having a good recollection of what he told Mr Cunninham, in answer to questions he was then asked.

274. Finally, Mr Gong’s evidence was:

“Q. What happened was you decided to try and move the plate manually without any direction?

A. INTERPRETER: No.

Q. You personally had operated the crane in the factory in the days before?

A. INTERPRETER: No.

Q. Because the crane was in use at the time, you decided not to wait for the crane?

A. INTERPRETER: No.

Q. You decided to try and manually flip it because you'd done that in other jobs before you worked at AWI?

A. INTERPRETER: No.

Q. You gave evidence yesterday about moving items of many hundreds of kilos manually, didn't you?

INTERPRETER: Sorry. Many hundred kilograms, did you say?

Q. Many hundreds of kilograms.

A. INTERPRETER: Yes.

Q. That's what you tried to do on this occasion?

A. INTERPRETER: No.”

275. Mr Kang overheard part of the conversation between Mr Gong and Mr Gim and witnessed the accident. He said Mr Gim asked why Mr Gong was standing still, and him telling Mr Gim that he was waiting for the crane. He also saw Mr Gim move to the other side of the factory before the plate fell. But he was not sure if Mr Gong had told him that Mr Gim had instructed him to flip the plate.

276. Mr Gim denied having directed Mr Gong to flip the plate manually.

277. Mr Gim’s evidence included that he had not expected Mr Gong to attempt a manual flip, given its weight.

278. On his evidence, Mr Gong and other workers were aware that one person should not attempt a lift of something weighing more than 20 or 25 kg. But the evidence establishes that the system AWI had in operation at the factory did not preclude lifts of even greater weights being attempted and required.

279. That Mr Gim ever gave such an instruction to Mr Gong cannot be accepted. AWI’s own documents not requiring Mr Gim to give such an instruction.

280. That Mr Gim had directed Mr Gong not to wait to use the crane, but to flip the plate manually, was also in issue.

281. Mr S Kim was standing nearby waiting for the crane when the accident occurred. He saw Mr Gong attempt to flip the plate, which he believed weighed over 100 kg, possibly hundreds. He was then waiting to use the crane, having finished work on a heavy piece of metal that had to be moved from his station. But he did not offer to assist Mr Gong by a team lift. Nor was he directed to.

282. Mr S Kim insisted that he saw not only Mr Kang nearby, but the accident itself happen, having heard Mr Gim tell Mr Gong, “there’s no time to wait for the crane, this is urgent, just get it done, the boss is watching and you will be fired”. On the evidence, the factory was noisy and he alone was near enough to have heard what Mr Gim said to Mr Gong.

283. Mr S Kim believed the manual lift to be dangerous. He saw Mr Gong lifting the plate off the table and as he got it more vertical, while it was still resting on the table, it fell, crushing Mr Gong’s foot between the plate and the concrete. With Mr Gong falling to the ground in pain.

284. While Mr Gim denied having any conversation with Mr Gong while he was working on the plate, Mr S Kim’s evidence in cross-examination included that he had overheard part of their conversation. Both Mr Gong and Mr Gim seeming angry, and Mr Gong upset. When Mr S Kim later asked him what had happened, Mr Gong said that Mr Gim had told him to turn over the plate, gesturing in a way that led him to understand that Mr Gong was to lift it manually. The crane was then still being used for other work and what Mr S Kim was told accorded with what he had heard.

285. There were issues with the interpretation, but Mr S Kim’s evidence was finally not that he heard Mr Gim tell Mr Gong to flip the plate manually. But that he heard Mr Gim “push Mr Gong to hurry up”. Mr S Kim insisting that both Mr Gim and Mr Kang were then in the vicinity of Mr Gong, contrary to Mr Gim’s evidence.

AWI breached its duty

312. The result is that I have also been persuaded that the evidence does establish that AWI breached the duty it owed Mr Gong.

313. The injuries he suffered were the result of the approach which it pursued. Not only to his recruitment, induction, training and supervision, but also of also the result of how it arranged the system under which he was required to work. The resulting competition for the use of its one crane having led to some lifts being undertaken manually, without a team lift. That resulting in Mr Gim giving Mr Gong the disputed direction which resulted in the plate falling and injuring Mr Gong.

314. It was how AWI arranged its system of work, provided and supervised the work Ebenezer workers were given, which permitted Mr Gim to pursue that course, pressuring Mr Gong into attempting the unsafe manual lift of the plate which fell. Rather than arranging a team lift, if that could have safely been undertaken given the weight of the plate, which was then undoubtedly known to him and AWI. Other workers were available, waiting nearby for the crane. If a team lift was not safe, Mr Gong should have been directed to wait for the crane.

315. The result of not having been given such directions being his unsuccessful attempt at a manual lift by himself.

316. This reflecting that the steps AWI took did not result in Ebenezer workers understanding or being directed to comply with its manual handling policy. AWI no, in any event, having imposed any weight restriction for a manual lift.

317. The breach of the duty AWI owed Mr Gong was the result of the way it arranged the work undertaken at its factory and the control and supervision it retained over the work it gave Ebenezer workers such as him. It resulted in Mr Gong suffering injuries which were treated in hospital that day, which were expected soon to heal, as well as the painful neurological injury and the psychological injury which he also suffered as a result.

318. These conclusions flow from:

319. The nature of the grinding work Mr Gong was engaged to perform, which could have been performed by AWI employees, AWI itself employing workers to perform such work at its factory, including one native Korean speaker;

320. That work giving rise to a real risk of injury, given its nature and where it had to be performed at the factory and the condition in which it was kept by AWI. The factory then having only one crane in operation, frequently resulting in work being delayed while workers had to wait for the crane to become available and manual lifts also being undertaken;

321. The induction and instruction Mr Gong was actually given about the work he was engaged to perform, not including information about its safe manual handling policy, despite what AWI intended by its written documents;

Requirements of the Civil Liability Act were satisfied

321. These conclusions explain why I am also satisfied that, looking forward at the prospect of injury that the applicable requirements were satisfied, as explained in Adeels Pala**ce Pty Ltd v Moubarak (2009) 239 CLR 420 at 438; [2009] HCA 48 at [31].

322. While in final written submissions AWI contended that it could not be found that AWI’s system involved workers lifting heavy items without use of a crane, its own manual handling policy and the directions Ms Ryan claimed she gave at a toolbox meeting, to use the crane if an item could not be comfortably lifted in one hand, precludes such a conclusion being arrived at.

323. The manual handling policy itself did not impose such a limitation and on the evidence, it not was not in practical operation in the factory.

324. The evidence establishes that the requirements of ss 5B and 5C were satisfied because:

325. the risk of harm to which Mr Gong was exposed, the risk of a worker suffering injury by manually manipulating a heavy metal plate without mechanical assistance by a crane, was foreseeable, it being one of which AWI knew, given its manual handling policy;

326. given the nature of the injury which could result from the materialisation of that risk, it was not insignificant;

327. in the circumstances, a reasonable person in AWI’s position would have taken precautions to guard against that risk;

328. such precautions including not only induction and training of the Ebenezer workers in AWI’s manual handling policy, but its practical operation at the factory and that policy also specifying what weights could safely be manually handled, including when undertaken by a team lift;

329. the probability that harm would materialise if such care was not taken, being high;

330. the resulting likely harm being serious;

331. the burden of taking such available precautions being small; and

332. the social utility of the work which created the risk of harm which materialised, undoubtedly warranting the taking of the available precautions.

Causation is established

325. Despite AWI’s case that the matters on which Mr Gong relied were largely causally impotent, I am satisfied that he has met the onus which fell upon him to establish causation as s 5E requires.

326. Causation under s 5E of the Civil Liability Act must be approached retrospectively, by seeking to identify what happened and why: Vairy v Wyong Shire Council (2005) 223 CLR 422 at 461; [2005] HCA 62 at [124]. What has to be established on the balance of probabilities being that the failure to take precautions was a necessary condition of the occurrence of the harm, it being a statutory statement of the “but for” test of causation: Strong v Woolworths L**td (2012) 246 CLR 182 at 192; [2012] HCA 5 at [18]-[20]. That requiring consideration of the probable course of events if the omissions had not occurred: at [32].

327. Given his training and trade occupation, Mr Gong was undoubtedly aware of the risk of attempting to flip the plate manually, which he considered to be unsafe.

328. But AWI’s system and how it permitted Mr Gim to induct the Ebenezer workers in in that system, as well as how it controlled and supervised the use of the crane; the work they were allocated; and the performance of their work, under Mr La Rosa’s direction and supervision, all establish that the failures which I have explained, were a necessary condition of the occurrence of the harm Mr Gong suffered.

The position of Ebenezer and Gong Engineering

329. Contributions to a damages award by concurrent tortfeasors is an evaluative exercise: Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALR 529. Their assessment does not depend on questions of principle of fact or law, but of proportion, balance and relative emphasis. That requiring the weighing of different considerations and involving an individual choice or discretion, as to which minds may differ.

330. Mr Gong’s case was that the evidence established that Gong Engineering had acted as little more than a labour hire company, contracting out his services to various companies such as AWI. In AWI’s case, it having complete control over the system under which he worked at its factory, the work he was given to do and how he had to do it. That was disputed.

331. AWI relying on the non-delegable duty of care Gong Engineering owed Mr Gong requiring it to devise a safe method of operation for the performance of his work at AWI’s factory. Gong Engineering thus ought to have identified and dealt with the unsafe system Mr Gong claimed it operated. With the result that any damages he was awarded had to reflect Gong Engineering’s contribution, as well as that of Mr Gong.

332. AWI’s case also being that unless it was found that it was liable only because of a casual act of negligence relating to Mr Gim’s direction, the apportionment of damages should be 40% to Gong Engineering and 30% to AWI. In the event of a casual act of negligence being found, it being accepted that there would have been less opportunity for Gong Engineering to have addressed the issue.

333. The contractual arrangements between AWI, Ebenezer and Gong Engineering were not reduced to writing. Such arrangements were not well understood by the Ebenezer workers who gave evidence. But it did establish the work they undertook and how it was controlled by AWI, not Ebenezer. The evidence also establishes that Mr Gong’s work at the factory was not controlled by Gong Engineering. AWI exercising practical control over all work performed at its factory under the system which it devised, implemented and controlled.

334. In De Martin & Gasparini Pty Ltd v Bartlett [2025] NSWCA 56 at [36], reference was made to McDonald v The Commonwealth (1945) 46 SR (NSW) 129 at 132, which was applied in QBE v Orcher*;* Bowcliff v Orcher [2013] NSWCA 478 at [154].

335. It being explained in McDonald that if an employer vests in a third party complete or substantially complete control of the employee, so that the third party is entitled to direct what the employee is to do and how it is to be done, and the employee was performing services stipulated for or authorised by the third party at the time, the third party is liable. But if the control vested is only partial, so that although the third party is entitled to give directions to the employee as to what is to be done, but is not entitled to direct it is to be done, the employer remains liable.

Contributory negligence

340. Mr Gong’s case was that his position was analogous to that discussed in Davies v Adelaide Chemical & Fertiliser Company Ltd (1946) 74 CLR 541 at 551; [1946] HCA 47. It having been AWI which had devised the system of work in operation at its factory and that when he was injured, he had not been working contrary to any rule, instruction or practice it then had in operation, which would have involved negligence disentitling him to recover the damages he pursued.

341. Mr Gong thus contended that AWI’s case could not be accepted, Mr Gim’s evidence about the disputed direction not being able to be preferred over his. But if it were accepted that he had still taken a risk with his safety, even despite the unsafe workplace culture existing within AWI’s factory, his damages would be reduced by 20%.

342. AWI urged the conclusion that his contributory negligence be assessed to be 40%, given his responsibility as a tradesman for his own safety.

343. I have concluded that Mr Gong’s contributory negligence must be assessed at 25%.

344. That reflecting Mr Gong’s own responsibility for safety and his evidence that he had identified the manual lift he attempted to have been unsafe, despite the short time that he worked at the factory. That having resulted in his failure to take reasonable care to protect himself, given the considerable weight he understood the plate he attempted to lift manually weighed. As he later told others, at least 100 kg and possibly much more, up to 400 or 500 kg.

345. On that evidence, what he attempted was so unsafe that an experienced tradesman such as he should have recognised it and not attempted a manual lift alone, despite what Mr Gim directed.

346. But since I accept Mr Gong’s evidence about the threat he was under to follow Mr Gim’s unsafe direction, the contribution of his obviously unsafe attempt to manually flip the plate, while of significance, cannot be assessed as contributing as much as AWI contended.

347. What he attempted not having been so obviously unsafe that other workers who observed what happened, stepped in to assist him by undertaking a team lift. Nor in Mr Gim directing them to do so or directing Mr Gong to use the crane. That has helped lead me to the conclusion that the result for which AWI urged cannot be accepted. As did AWI’s failure to disclose the actual weight of the plate, its manual handling policy not having imposed a weight limit on manual or team lifts.

348. The proper inference being that this evidence could also not have assisted its case.

Damages

349. I have come to the following conclusions about what remained in issue in relation to damages, the claim for past domestic assistance not having been pressed, with Mr Gong conceding that living in a small unit did not permit him to pass the statutory threshold.

350. Mr Gong pressed claims in relation to injuries which he suffered to his neck, right arm and shoulder, lower back, right foot and ankle, as well as CRPS and psychological injury. AWI contended, in summary, that it should be found that his physical injuries had resolved; that if he had CRPS, he had not suffered from it for some time; and that he had suffered depression which would improve, it only requiring modest future treatment.

Objections and further discussions

351. There was an objection to part of Dr Dias’ report. It was received provisionally, on the basis that further submissions would be advanced in relation to its compliance with the requirements of s 79 of the Evidence Act 2005 (NSW). That objection was finally not pressed.

352. There were also objections to referral letters which referred to opinions about conditions Mr Gong was considered to suffer, which were received on the basis that they formed part of the history which had resulted in Mr Gong being diagnosed and treated as he was, over time. Workers compensation certificates issued by Dr Lam, his GP and other GP’s reflecting their assessment that Mr Gong’s level of work capacity, over time, continued to be nil.

353. The parties also pursued discussions about the quantum of Fox v Wood (1981) 148 CLR 438; [1981] HCA 41 and superannuation calculations, which still have to be finalised.

354. The parties will also have to undertake various calculations in order to arrive at Mr Gong’s final damages.

Non-economic loss

355. Mr Gong’s physical and psychological impairments now being permanent, he claimed, had to result in an assessment that he had suffered non-economic loss of 55% of a most extreme case.

356. The nature of the injuries and damages which Mr Gong suffered were in issue. That turning, in part, on whether he has exaggerated what he has suffered and continues to suffer.

357. AWI’s case being that he had not established his claimed loss, which is regulated by s 16 of the Civil Liability Act. It precluding an award for non-economic loss unless its severity “is at least 15 per cent of a most extreme case”. Mr Gong’s credit being highly relevant to the resolution of this issue, the result urged being that he could be awarded no more than 28% of a most extreme case.

358. “Non-economic loss” is defined in s 3 of the Civil Liability Act to mean “any one or more of the following—

“(a) pain and suffering,

(b) loss of amenities of life,

(c) loss of expectation of life,

(d) disfigurement.”

359. Its assessment does not reflect “the exercise of a discretion, but an assessment involving matters of opinion, impression, speculation and estimation, in order to arrive at a figure which falls within a reasonable range”: White v Redding (2019) 99 NSWLR 605; [2019] NSWCA 152 at [57]-[78] and [79]-[100] discussed in Manhattan Homes Pty Limited v Burnett [2024] NSWCA 219 at [99]-[100].

360. There, reference was also made to the consideration which may be given to having seen a plaintiff over a number of days in court and in the witness box: at [105]. An opportunity which I have had in this case and have thus taken into account in arriving at my conclusions, as well as of Mr Gong’s unexplained failure to call evidence from his wife, who it might reasonably be expected would have supported his case.

361. But still there was finally no issue that Mr Gong has suffered more than 15% of a most extreme case. That being supported by the medical evidence, including the December 2022 report of Dr Bodel, an orthopaedic surgeon, which established that he had then been assessed as having suffered at least 15% whole person impairment, and so could recover work injury damages under the Workers Compensation Act 1987 (NSW).

362. While not easy to resolve, especially given competing expert views, I have concluded that the injuries Mr Gong suffered as the result of the accident entitle him to an award for non-economic loss, assessed to be 40% of a most serious case.

363. What Mr Gong finally pressed rested on injuries which he suffered in the accident to his neck, back, arm and foot, that also resulting in his ongoing neurological pain and psychiatric injury, with considerable ongoing, adverse impact on all aspects of his life.

364. On his case, it was irrelevant whether he any longer satisfied the criteria by which complex regional pain syndrome is diagnosed, given the views which the experts arrived at about the results of the pain he still continues to suffer, and the altered gait which persists despite the very extensive treatment he has received. It not fairly having been put to him that he was exaggerating what he continued to suffer, and that no lay evidence was led to establish he was not suffering what he described.

365. AWI’s case was that either Mr Gong suffered no physical injuries other than to his right ankle, or that they had all resolved, with the ankle injury having been minor and causing no ongoing impairment. Further, that the CRPS which he had developed was also resolved. AWI further claimed neuropathic pain was subjective, with fluctuations and inconstancies in the pain Mr Gong reported creating the real possibility of psychological overlay, which could be voluntary or involuntary.

366. AWI thus urged that it would not be accepted that he had ongoing physical injuries, despite identified wasting and his gait problems.

The evidence of injury

369. Mr Gong’s workers compensation claim was accepted in June 2021, he receiving considerable support of various kinds as a result.

370. The challenge in assessing non-economic loss presented by the evidence flows from the fact that the physical injuries which Mr Gong suffered immediately, when the plate fell, were not extensive. They being of a kind from which a complete recovery, over some months, would ordinarily be expected.

371. But while his physical injuries healed, Mr Gong also developed a very painful neurological condition, which resulted in him being diagnosed to be suffering Complex Regional Pain Syndrome for which he was treated. Mr Gong unsuccessfully pursued extensive rehabilitation over 18 months to two years, but has never achieved a complete recovery. He now walks with a noticeably altered gait and considerable limp, which it must be accepted is also painful.

372. In his statements, Mr Gong explained the aftermath of his accident and how his GP treated him, with the result that he pursued scans, physiotherapy, rehabilitation, specialist treatment for his ongoing pain, injections in his shoulder and foot, to some of which he had adverse reactions, exercise physiology, as well as psychological assessment and treatment. He has had consultations with an orthopaedic surgeon and other specialists due to ongoing pain in his shoulder and back, which radiates towards his buttocks and lower limbs, as well as shooting pain in his right foot, which worsen at night.

373. Second opinions have been sought about his foot injury from a neurosurgeon and he was referred for pain management, the overall cost of all of which was borne by the workers compensation insurer.

374. In September 2022, Mr Gong commenced a multidisciplinary pain program at Royal North Shore Hospital, where he was evaluated at the Pain Management & Research Centre and participated in the ADAPT program. That involved physical and psychological treatment, including by a psychiatrist, who in 2022 adjusted medication Mr Gong had been taking for some time. He also received ongoing treatment by a pain specialist, but has not achieved a recovery.

375. Mr Gong described still suffering considerable pain and discomfort, with shooting pains in his neck and nerve related symptoms affecting his ability to perform tasks involving neck movements, which resulted in headaches and soreness in his eyes. Alongside pain radiating in his right shoulder, arm and elbow, which affected his body strength and movement. This ongoing back pain posing significant challenges, making prolonged sitting uncomfortable and hampering his ability to engage in work or activities requiring exertion.

376. He also continues to suffer pain and a cold throbbing sensation in his right foot, which makes it difficult to walk or stand for long periods. There is no issue that Mr Gong has a noticeably altered gait, consistent with the measurable wasting in his right calf, which has increased.

Physical injuries

The orthopaedic evidence

402. Given what the orthopaedic experts, Dr Shatwell and Dr Bodel agreed, it must be accepted that in the accident Mr Gong suffered various soft tissue injuries which were painful, but from which he recovered. Scans having also identified pathological changes which were not likely to have resulted from the accident, but from the heavy work he had performed over years which had never been symptomatic before the accident.

403. The application of the Budapest protocol now used to diagnose CRPS was explained by their evidence, as well as the two types of that condition, the criteria for which were first agreed in 2012. When he pursued treatment after the accident under the care of his GP, Mr Gong was diagnosed to be suffering that condition and has been treated for it, although at the time the experts examined him, he did not satisfy all of the applicable criteria.

404. Still the orthopaedic experts agreed that Mr Gong had suffered significant muscle wasting in his calf, measured over time at 1.2cm, then 1.8 and then 2cm. Later at 2.5 and 4cm, but the latter is likely to have been inaccurate. A recent measurement was not available, but bone scans also establish ongoing abnormality, including reduction in vascularity, that reflecting injury to his foot and ankle region.

405. This accorded with Mr Gong’s physical presentation during the hearing when he continued to walk with a considerable limp, which he explained in his statements caused him pain, even during sleep. And also prevented him from placing too much weight on his right leg or lifting heavy weights, which he found embarrassing.

406. Pain specialists, the orthopaedic experts also agreed, have the most experience in diagnosis and treatment of CRPS, which is a relatively rare condition typically occurring in early phases of injury. In Mr Gong’s case, he was referred by an orthopaedic surgeon to a pain specialist some four months after the accident, resulting in a diagnosis of type 1 CRPS by Dr Khor, a pain specialist, as well as by a specialist in pain medicine, Dr Standen. In cross-examination, Mr Gong said he last saw a pain specialist some months before the hearing and did not have a further appointment.

407. The experts also agreed it was likely that the treating specialists adequately applied the applicable criteria and that Mr Gong did suffer CRPS. That likely also having been recognised by his GP Dr Lam, who had properly and promptly referred him for treatment. It being difficult in some cases to get a clear cut diagnosis, because the condition can wax and wane and be more disturbing and symptomatic at some times than others. That explaining why Mr Gong did not satisfy all the criteria, when examined over time.

408. There are also other pain syndromes which are not CRPS. But that Mr Gong did not satisfy the criteria when Dr Shatwell saw him in 2024, for example, did not establish that he did not then suffer the condition. Dr Shatwell accepting that the most useful evidence about the condition was what Dr Khor initially found on his examination. CRPS being a condition which can improve and settle over time, but it being pertinent that even when he was examined by the experts, Mr Gong still suffered considerable ongoing pain.

The psychiatric evidence

427. The experts, the psychiatrists Dr Robertson and Dr Roberts, reached no agreement about the disorders which Mr Gong suffered as the result of the accident. Nor his prognosis. Even though the evidence established that he has been diagnosed and treated for the psychological injuries, I am satisfied that he did suffer as the result of his accident, both post-traumatic stress disorder and a depressive illness.

428. The way in which these experts came to give evidence was unusual, given that Dr Roberts had initially been retained by Mr Gong and finally, by AWI.

429. Dr Robertson concluded that Mr Gong had suffered both PTSD and a major depressive disorder, while Dr Roberts finally considered that he had a persistent depressive disorder with dysthymia, he never having satisfied criterion (A) of the PTSD criteria. This was disputed.

430. In the joint report, Dr Robertson explained why he remained of the view that Mr Gong suffers both PTSD and a major depressive disorder. The pain he had suffered constituting a traumatic stressor which amounted to an “actual or threatened serious injury”, that being a component of the DSM-5 diagnostic criteria for PTSD.

431. Dr Roberts disagreed, given his view that Mr Gong had suffered only a minor physical injury, albeit noting the orthopaedic experts’ views about the psychiatric overlay to that injury. He remaining of the view that Mr Gong had a minor depressive disorder which would diminish if his physical condition resolved. That turning on the differing view he took of how the diagnostic criteria operated, and his view that Mr Gong continuing to suffer chronic pain was incapable of fulfilling the PTSD criteria.

432. In part the experts’ differences turned on Mr Gong’s past life experiences and his response to them.

433. Mr Gong was born in North Korea, which he escaped after a number of failed attempts, with resulting capture, imprisonment and torture. Eventually living in South Korea where he studied to obtain his trade, before immigrating to Australia. Here he succeeded in obtaining trade qualifications as a boilermaker, a trade in which he worked successfully for some years before being injured at AWI, while he pursued residency.

434. Mr Gong’s obvious resilience, having never developed any psychiatric problems before his accident at AWI, was agreed by the experts to be relevant. With Dr Roberts’ view being that made him less likely to have developed PTSD and Dr Robertson that, if it was demonstrably true that he had developed a neuropathic pain condition, it did involve the requisite severe physical injury, which had allowed the development of PTSD.

435. On all of the evidence I have discussed, I am satisfied that the accident resulted in Mr Gong developing CRPS, which continues to cause him considerable ongoing pain, despite extensive treatment. As well as physical injuries which have left him with an altered gait and a pronounced limp.

“A. Exposure to actual or threatened death, serious injury, or sexual violence in one (or more) of the following ways:

1. Directly experiencing the traumatic event(s).

2. Witnessing, in person, the event(s) as it occurred to others.

3. Learning that the traumatic event(s) occurred to a close family member or close friend. In cases of actual or threatened death of a family member or friend, the event(s) must have been violent or accidental.

4. Experiencing repeated or extreme exposure to aversive details of the traumatic event(s) (e.g., first responders collecting human remains: police officers repeatedly exposed to details of child abuse).”

439. Dr Roberts’ opinion was that for a diagnosis of PTSD, the patient must have been exposed to either actual or threatened death, or to serious injury or sexual violence. The qualifying term “actual or threatened” only qualifying “death”. In his view, whether or not the accident constituted a threat of serious injury was not relevant, as on his reading of the criteria, the result of what Mr Gong had been exposed must have been actual serious injury or sexual violence, not merely the threat of them.

440. Dr Robertson disagreed.

441. While not easy to resolve, I do not consider that the PTSD criteria can be read in the way Dr Roberts understood. But even if they can, the development of the painful CRPS which Mr Gong continues to suffer, despite considerable treatment, involves not merely exposure to a serious injury, but the suffering of such an injury. That satisfying the criteria, even on his approach.

442. The PTSD criteria are concerned with exposure to actual or threatened traumatic events in specified ways. Not only as the result of direct experience of the event, but also as the result of witnessing it, learning of the event, or by repeated or extreme exposure to aversive details of the event.

443. It must thus be accepted that the criteria thus envisage that not only exposure to actual or threatened death, but also exposure to actual or threatened serious injury or sexual violence, can result in PTSD.

444. In the case of repeated or extreme exposure to aversive details of a traumatic event, the examples given including repeated exposure to details of child abuse. Child abuse can not only involve children being subjected to actual serious injury or sexual violence, but also to the threat of it. Repeated exposure to which can result from having to observe and/or listen to recordings. Including when police officers, for example, may repeatedly have to view and/or listen to children being threatened with serious injury or sexual violence.

445. Dr Robertson also did not consider that a heavy object falling on Mr Gong’s foot could satisfy the PTSD criteria. Dr Roberts disagreed, explaining that “I wouldn't like a hundred kilogram plate falling on my foot, your Honour. I would consider that very traumatic, particularly if I then developed chronic pain afterwards.”

446. On the orthopaedic evidence it may be accepted that the falling plate did not cause Mr Gong serious physical injury to his bones or soft tissue. But the CRPS which he developed as a result established that he suffered a serious neurological injury, which still continues to cause him considerable pain.

447. The evidence establishes that Mr Gong is still suffering from that painful neurological condition, from which his prospects of recovery do not seem high and that not long before the hearing, he was still receiving treatment for it. It must be found that this serious injury was a direct result of the accident. Mr Gong having not merely having been exposed to the threat of serious injury, when the heavy plate fell onto his foot as it did.

Conclusions about non-economic loss

465. Having considered all of this evidence, I am satisfied that in arriving at a conclusion about Mr Gong’s non-economic loss, considerable account must be taken of the difference in Mr Gong’s position since the accident, despite his earlier experiences in Korea and the resilience with which he was able to respond to them. The evidence establishes that it was the accident which caused the ongoing physical issues and resulting pain syndrome which I am satisfied he continues to suffer, with unexpected, ongoing, adverse impacts on his life contributed to by the psychological conditions which he developed, was diagnosed to be suffering and treated for.

466. Both the CRPS and the psychiatric impacts of the accident were undoubtedly unexpected, especially given his past resilience and the relatively limited injuries initially identified and treated. That helping to explain his reaction to what he came to suffer.

467. The assessment of Mr Gong’s non-economic loss must reflect how his accident, undoubtedly of a much less significant character than what he suffered in Korea, has led to him lose, including his resilience. He having been left suffering not only ongoing, now chronic pain, but also very adverse psychiatric consequences, for which I am satisfied he is not responsible and has not feigned.

468. Before the accident, he was a fit, healthy and active man, successfully pursuing the trade in which he had requalified in Australia, undertaking heavy work not only for AWI, but other companies for whom he successfully worked in order to successfully support his family, while he actively pursued residence here.

469. The results of the accident included unexpected consequences, when he did not recover as expected from the relatively minor bone fracture and soft tissue injuries which the accident caused.

470. Mr Gong developing an unexpected, painful neurological condition, which he has not revered from, despite extensive treatment. He having also been left with muscle wasting, a considerably altered gait and a limp. This also resulting in serious psychiatric injury, which he still suffers despite treatment. He now continues to experience pain, disturbed mood and sleep, nightmares, intrusive thoughts and suicidal ideation.

471. That there has been some improvement, accords with the evidence and his presentation at the hearing. But that he will recover from all that he is still suffering and resume his prior life, was not established.

472. What is apparent is that Mr Gong’s complete recovery is unlikely, without resolution of his neuropathic condition. It is not apparent that further treatment available to him is likely to achieve that result. Nor is a return to his former circumstances, where he was physically fit, psychologically strong, able to work in his trade to support his family and to enjoy the life and social pursuits he happily engaged in, before the accident.

Past economic loss

474. Both past and future economic loss were pressed on the basis that, as the result of the ongoing consequences of Mr Gong’s injuries, he could not work again in the course of his expected working life. He having been unable to work since the accident, having been unable to return to his trade and unlikely in future, to be able to successfully pursue other work. That is also disputed.

475. What must be established is a diminution in earning capacity productive of a loss: Graham v Baker (1961) 106 CLR 340 at 347; [1961] HCA 48. Section 12 of the Civil Liability Act being concerned with loss of earnings and the deprivation or impairment of earning capacity. That requiring an approach according with that adopted in Malec v JC Hutton Pty Ltd, taking into account both assumptions about future earning capacity or other events which accord with Mr Gong’s most likely future circumstances, but for the injury. As well as the percentage possibility that the events might have occurred, but for the injury: Avopiling Pty Ltd v Bosevski [2018] NSWCA 146 at [128]-[137].

476. I accept that but for the accident, Mr Gong’s most likely future earning capacity would not have been diminished as it was, given his likely circumstances, but for the injuries he suffered as the result of the accident.

477. To establish the amount of his damages Mr Gong relied on tax invoices which reflected what Ebenezer Engineering had been paid for services he had provided in the two years before the accident, being $124,923.40 in the 2020 financial year, and up to the time of the accident in 2021 being $109,057. What he was paid by Gong Engineering being some $3,200 per fortnight. His tax return in 2021 disclosing taxable income of $80,262, supported by bank statements.

478. But Mr Gong claimed an assessment based on earnings of $2,404.00 per week, or $125,000 gross annual income. Also relying on boilermaker market rates disclosed in the March 2024 report of Ms Tarrant and Mr Hart, which AWI led, as well as what it actually now paid for tradesman such as he, about which Mr Gim gave evidence.

479. AWI relied on Gong Engineering’s issued tax invoices to AWI for the services Mr Gong provided, which it paid, and other records of what he was paid gross per fortnight. As well as on advice given to icare by his wife, that his pre-injury earnings were $1,494.43, she having had the assistance of an accountant. AWI contended that it would thus be concluded that at most, Mr Gong was receiving $1,500 per week at the time of the accident.

480. Mr Gong accepted that it was appropriate for the first year of his loss to be measured against his tax return, with the result a net loss of $1,200 per week up to April 2022. But he urged that account should also be taken of Mr Gim’s evidence that the rate Ebenezer paid boilermakers had increased over time from $50 in 2021, to now $65 per hour. With the result that past economic loss would be assessed to be:

| Period | Weekly Net Loss | Annual Loss | | 12 April 2021 to 12 April 2022 | $1,200.00 | $62,400.00 | | 12 April 2022 to 12 April 2023 | $1,400.00 | $72,800.00 | | 12 April 2023 to 12 April 2024 | $1,600.00 | $83,200.00 | | 12 April 2024 to 12 April 2025 | $1,800.00 | $93,600.00 | | 12 April 2025 to 12 December 2025 (34 weeks) | $1,800.00 | $62,200.00 | | Total | | $373,200.00 |

481. Mr Gong argued that his position was analogous to that considered in Husher v Husher (1999) 197 CLR 138; [1999] HCA 47, where it was accepted that the income of a partnership between a husband and wife had come from the efforts of the husband and the exploitation of his earning capacity. As a result, the practical reality was that her earning capacity was negligible and he could have chosen to make some other arrangement, which would have resulted in the whole of the fruits of his labour being under his control and disposal. That having to be reflected in the assessment of his damages: at [7] and [21].

482. On Mr Gong’s evidence, that must be accepted. It is evident that he had a choice about providing his services through Gong Engineering, or contracting himself. It being his earning capacity, with which damages are concerned, that may not be overlooked. That also accords with the approach adopted in cases such as George v Survey [2009] NSWSC 1348.

483. I am satisfied that Mr Gong has established that the result of the injuries which he suffered was not only the loss of income he was being paid by Gong Engineering in 2021, but the loss of his then earning capacity, which was different. With the result that the increase over time since then in what boilermakers were being paid, reflected by what AWI actually pays tradesmen who it engages through contractors and other evidence, must be taken into account.

484. In the result I am satisfied that Mr Gong’s approach to the assessment of past economic loss should be accepted, including as to the consequential loss of superannuation.

485. Mr Gong accepted that the $337,502.81 he had received in weekly workers compensation benefits would have to be repaid to the insurer after the judgment was met by AWI. That calculation will have to be undertaken.

Future economic loss

486. Mr Gong also pursued damages for both loss of future income and superannuation on a similar basis to his past loss, relying on the opinions of Dr Dias and Dr Ting, who agreed he could not perform his former heavy work. Dr Ting considering that he had a physical capacity for only two or three hours sedentary work in selective work environments, and Dr Dias indicating that he could not return to any conceivable role on the open labour market, given his previous education, training and experience.

487. Section 13(1) of the Civil Liability Act precludes an award for future economic loss “unless the claimant first satisfies the court that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant’s most likely future circumstances but for the injury.”.

488. Compensation for loss of earning capacity is awarded because the diminution in an injured plaintiff's earning capacity which “is or may be productive of financial loss”: Graham v Baker at 347. In Rabay & Anor v Bristow [2005] NSWCA 199, it was explained at [73]-[74] and [79] that:

489. It is for the plaintiff to prove the loss for which compensation is claimed: Todorovic v Waller (1981) 150 CLR 402 at 412; [1981] HCA 72;

490. But the injured plaintiff need not prove what employment he or she “is not incapacitated from performing”: Rabay at [73];

491. It is for the defendant which contends that the plaintiff has a residual earning capacity to adduce evidence of what the plaintiff is capable of doing and what jobs are open to such a person: Luntz, Assessment of Damages for Personal Injury and Death at [1.9.20];

492. A history of a consistent pattern of full-time employment in work which might fairly be described as having been of a heavy manual nature may be taken into account in such an assessment: Husher v Husher (1999) 197 CLR 138 at 143; [1999] HCA 47;

493. The assessment of future economic loss involves reference to future or hypothetical events, by a “process of estimation of possibility”: Malec v JC Hutton Pty Ltd at 643. This is “necessarily an imprecise matter of estimation, carried out within broad parameters”: Donald v McKeown [2004] NSWCA 285 at [38];

494. There is a distinction between “working capacity” and “earning capacity”, those terms not being co-extensive. “Earning capacity” recognising the realities of the world of employment: South Western Sydney Local Health District v Sorbello [2017] NSWCA 201 at [72];

495. An individual who has a physical and mental ability to undertake certain tasks not necessarily having a significant residual earning capacity. That having to be measured by reference to the individual, when viewed with all his or her characteristics, in the labour market. Thus, a person in middle age “who has spent all his or her life in a skilled or semi-skilled occupation which, as a result of injury, is no longer available, the identification of occupations which are theoretically available is only part of the task. There having also to be a practical assessment of the likelihood of the individual obtaining employment in some such occupation”: [2011] NSWCA 121 at [65]; and

Conclusions

520. On all of this evidence, I have concluded that despite what was pursued with Mr Gong in cross-examination and with the various experts required for cross examination, it must be accepted that the preferable view is that Mr Gong no longer has a future earning capacity.

521. But for his injuries, Mr Gong would have pursed trade work of the kind which Gong Engineering obtained for him with operators in heavy industry such as AWI. He now has no capacity to resume such work. That he will regain that capacity is now unlikely, given the time that has elapsed and the treatment which has not resulted in his recovery.

522. It is also unlikely, that he will in future be able to pursue other paid sedentary work, even with further training. Given his ongoing pain and physical limitations, as well as the impact of his psychiatric conditions, that other suitable employment is likely to be practically available to him in the future, has not been established.

523. Like in Sorbello and Manhattan Homes, it follows that it must be accepted that the evidence does not establish that Mr Gong has any real prospect of exploiting his limited capacity to perform some part-time work in a sedentary position in future: Manhattan Homes at [403].

524. That he has ongoing concerns about his visa status, does not alter this outcome. I am not persuaded that s 13(2) of the Civil Liability Act requires an adjustment to the amount of Mr Gong’s damages for future economic loss because of the possibility that these events might have occurred, but for his injuries.

Past out of pocket expenses

525. There was also a considerable dispute about these damages. It must be resolved having regard to the central touchstone for an award of damages being that they be reasonable and fair as between the parties: Arthur Robinson (Grafton) Pty Ltd v Carter (1968) 122 CLR 649 at 656; [1986] HCA 9.

526. Mr Gong has unsuccessfully pursued extensive treatment, funded by the workers compensation insurer, including for example, 78 physiotherapy sessions for which he was repeatedly referred, but has obtained but limited benefit from. His diligence in the pursuit of recovery thus cannot be doubted.

527. There seemed to be no issue that the costs involved amounted to some $208,875.51, which included the cost of interpreting services he had also received at his appointments. It is apparent that this also had the support of the insurer and those who have treated him. The experts having spoken favourably about what his GP Dr Lam pursued, given his failure to recover as expected.

528. Still AWI contended that there should be no award for any of these expenses and, in the alternative, that a buffer of only $25,000 should be awarded.

529. I am unable to accept that this would be a reasonable or fair result.

530. Mr Gong has been treated by his GP, specialists and others to whom he was referred for treatment, for both his physical injures, neurological pain and his psychological impairment. None of the experts criticised what he so pursued.

531. Some of his physical injuries responded, with the result that he has not been treated by an orthopaedic specialist since 2022, despite the altered gait and limp he has been left with and the increasing wasting of his calf muscle. The ongoing neuropathic pain, which he unexpectedly developed and resulted in his diagnosis and treatment for CRPS, has also not resolved. Nor have his ongoing psychological problems.

532. He thus continues to walk with a very altered gait, although over time with persistence, the distance he can walk has increased, so that he was able to attend appointments such as those with Ms Tarrant and Mr Hart, despite the pain he explained he was suffering when they examined him. That also reflecting his determination. That he is very frustrated and adversely affected by his situation, as a result, must also be accepted.

533. On all of the evidence I can see no just basis for refusing to award him the claimed damages for his past out of pocket expenses.

Future out of pocket expenses

534. Mr Gong seeks a buffer of $150,000. I can also see no just basis for refusing such a buffer.

535. Mr Gong has a further life expectancy of some 44 years. On his case, his past experience is a good guide to his likely future needs. His treatment has tapered off since the end of 2023, when his workers compensation insurer ceased funding it. But he continues to consult his GP on a fortnightly to monthly basis, while continuing to take medication he is prescribed.

536. Dr Roberts was initially retained by Mr Gong. Then he advised that he would require at least 25 psychological interventions, perhaps more at intervals of two to three weeks, as well as other treatment. Having been later retained by AWI, he came to a very different view.

537. Dr Robsertson recommended three to six sessions with a psychiatrist and 12 with a psychologist within the next year. At a cost currently of some $7,620, this would amount to some $137,897 over the course of Mr Gong’s life. That, together with the expected cost of ongoing management of his physical issues, would amount to well over $150,000.

538. It follows that the amount pressed must be accepted as providing a fair buffer. Despite AWI contending that there should be no such award, or that these damages would be encompassed by a buffer of no more than $25,000.

539. I am satisfied that justice could not permit the adoption of such a small buffer, which must encompass ongoing treatment by Mr Gong’s GP, the medication he continues to require, given treatment for his ongoing pain, having rejected surgery for insertion of a nerve block. That he will also require further psychiatric treatment, also having to be accepted.

540. In the result the claimed buffer must be awarded.

Future domestic assistance

541. Mr Gong pressed these damages on the basis of commercial services for four hours per week, at rates which were not challenged. That resulting in a weekly loss of $220 per week for 43 years with application of a 5% multiplier and reduction by 15% for vicissitudes, that amounting to $175,443. It also being accepted that the Fox v Wood principle applied, with the resulting calculation explained. That was opposed.

542. AWI disputing that this claim had a proper foundation in the evidence. He having not called his wife and himself having given but limited evidence of his pre and post injury capacity, with s 136 rulings having been made in respect of histories Mr Gong gave to those who examined him, about such care.

543. There is no issue that Mr Gong did initially have cleaners funded by the insurer, as well as having the assistance of his wife, which on his evidence continues.

544. The onus falls on the plaintiff to establish a reasonable need for claimed care: Allard v Jones Lang Lasalle (Vic) Pty Ltd [2014] NSWCA 325 at [72]-[73]. Mr Gong finally did not press his claim for past assistance, s 15(3) of the Civil Liability Act precluding the claim for gratuitous attendant care services unless the services are provided, or to be provided for at least six hours per week, and for a period of at least six consecutive months.

545. Damages in respect of a need for commercial domestic assistance likely to arise in the future, after the availability of gratuitous assistance ceases, may be awarded: Miller v Galderisi [2009] NSWCA 353 at [18]; Nominal Defendant v Lane [2004] NSWCA 405 at [75]. But Mr Gong led no evidence about such matters.

546. Mr Gong finally relied in his written submissions on Dr Ting’s opinions that he would continue to require four hours assistance at commercial rates which were not disputed. Dr Dias had considered that he would require an average of seven hours of such care per week.

547. In Ray v Southon [2022] NSWCA 267, to which AWI referred, it was accepted that it was permissible for a doctor with relevant qualifications and experience related to rehabilitative medicine and occupational health “to convert his assessment of a patient’s functional losses into a calculation of the estimated time it might take a healthy replacement to carry out the identified tasks with the performance of which the patient has established an identified difficulty.”: at [31].

548. AWI urged that the opinion of Mr Miszczuk, a consultant occupational therapist who was not required for cross examination, be accepted. His opinion being that such care was not reasonable or necessary, be preferred. Submitting that Mr Gong’s experts’ views could not be preferred, evidence which is based on assumptions which are incorrect or not proven, being of little value or irrelevant: [1985] HCA 58; (1985) 59 ALJR 844.

Costs

557. The usual order as to costs under the Uniform Civil Procedure Rules 2005 (NSW) is that costs follow the event. In this case, that would be an order in favour of Mr Gong.

Orders

558. For these reasons, I enter judgment for Mr Gong.

559. The parties are directed to:

560. Confer about the final calculations of Mr Gong’s damages and the terms of the final orders, including as to costs;

561. File proposed orders within 14 days; and

562. In the event of any dispute, they should also file and serve within that time, a short outline of submissions addressing what remains in issue.

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Amendments

13 May 2026

At paragraph 321 has been amended by inserting the words "that the applicable requirements were satisfied" have been inserted.