Healey v Penrith City Council; Healey v Ussher; Healey v GIO General Limited

2010/350196: Brydens Law Office (Plaintiff) James Tuite & Associates (Defendant)

2012/91723 Brydens Law Office (Plaintiff) Kennedy's (Australasia) Pty Ltd (Defendant) File Number(s): 2007/292443; 2010/350196; 2012/91723

Judgment Introduction 1The plaintiff was employed as a rubbish collector by Usshers Pty Ltd (Usshers), which had a longstanding contract with Penrith City Council for the emptying of litter bins in the municipality, and then by Usshers Solid Waste Pty Ltd (Solid Waste but, when the distinction is unimportant, the two entities are simply referred to as Usshers) which later performed Ussher's obligations under the contract by agreement between the two companies, although the contract was never assigned to Solid Waste, Usshers remaining contracted to the Council for its performance. The plaintiff was employed by Usshers from 7 February 2000 to 30 November 2004 and then by Solid Waste from 1 December 2004 to 29 April 2005. Usshers was placed into liquidation in 2008. It was insured for public liability from 31 October 2004 to 31 October 2005 by GIO General Ltd, which came on risk in respect of the plaintiff from 1 December 2004. 2The plaintiff sued the Council and GIO (as surrogate, in effect, for Usshers pursuant to s 601AG of the Corporations Act 2001 (Cth)) for injury caused by the nature and conditions of his work. He could not sue Usshers (or Solid Waste) because his whole person impairment was not assessed at above the requisite 15 per cent as against any single employer under s 151H of the Workers Compensation Act 1987 (NSW). This is an agreed position and need not be more than noted as explaining the otherwise somewhat unusual form of the litigation Accordingly, in order to succeed against GIO, the plaintiff must show that Usshers was liable in negligence to him for the period commencing 1 December 2004 to 29 April 2005, when it was no longer his employer but was (so, in substance, the argument goes) undertaking the work of emptying the Council's bins jointly with Solid Waste, which employed the plaintiff. The GIO policy contained a number of exclusion clauses which, it was submitted, operated to defeat the plaintiff's claim against it. So far as the Council is concerned, the plaintiff alleges, in substance, that it was a joint tortfeasor with both Usshers and Solid Waste in respect of their negligence which caused his injuries. I mention (with some apprehension) that this matter is also complicated by the provisions of s 151Z of the Workers Compensation Act. 3Mr Robert Ussher Jnr was also sued on the basis, inter alia, that his interest in the contract had not been assigned to Usshers or, if assigned, continued by virtue of a clause in the original contract that assignment would not release his liability to perform the contract. This continuing liability to the Council was a term of the assignment also. It was suggested that, because his signature did not appear on the tendered copy of the Deed of Assignment, he had not executed it and had not assigned his interest to Usshers. Given the ensuing events, it is probable that, indeed, he did sign a copy of the assignment. At all events, however, there is no evidence that Mr Ussher actually continued in any relevant role. There is no need to discuss his position. He is entitled to judgment plus costs. 4I should mention at the outset that the plaintiff was an impressive witness. He did not exaggerate. I formed the impression that he was genuinely attempting to tell the truth as he believed it to be. Although he was not the master of all the details, overall his evidence was also reliable. 5I refer below to Council, Usshers and Solid Waste records that were tendered, which refer variously to bins not being emptied, heavy bins, bins filled with commercial waste rather than litter and damaged bins. The records of the Council up to and including 2004 were destroyed and there is no evidence that the tendered material was complete; in substance, the case was conducted on the basis that this could not be assumed, let alone inferred. However, the documents are a useful snapshot. Background 6The plaintiff was born in December 1948 and was educated in the United Kingdom. In 1965 he took up an apprenticeship as a toolmaker. He married his first wife in 1969 and, after a short period in South Africa in early 1971, returned to the United Kingdom where they lived for about five years. The couple with their daughter (born in May 1972) moved to Germany in 1978 where the plaintiff's brother in law was then living. The family returned to England in 1980 and the plaintiff was employed as a toolmaker for a short time before moving to Australia in 1981. Shortly after arriving in Australia the plaintiff obtained work as a toolmaker with several employers until March 1991, working in a second job packing shelves in a supermarket at the same time. His marriage broke down in 1990. There had been a number of significant crises in the marriage, their first child having died when he was not yet two years old and their second and third children, born respectively in 1974 and 1976, dying within a month or so after birth. The plaintiff returned to England in 1991 following his divorce since his wife, who had custody of their surviving daughter, returned there and he wanted to continue contact with his daughter. Apart from working as a toolmaker where he could, he completed a one year diploma in computer engineering during this time. He said he found it increasingly difficult to obtain work as a toolmaker and thought that computer engineering might offer better opportunities. The plaintiff returned to Australia in 1996 and to a previous employer as a toolmaker. However, the toolmaking side of the business was winding down and it was apparent that those operations were going to come to an end. He therefore obtained a heavy goods driver's license and a front end loader driver's certificate to widen his chances of obtaining work. He managed to obtain employment at Leppington operating a front-end loader and delivering manure to various garden centres. The nature of the plaintiff's work 7In early 2000, following information from a friend who told him that Usshers was looking for truck drivers, he decided to apply for work there. He was then very fit and strong. He started work driving a sewerage truck but only did this for a week before being assigned to the Penrith Council street litter bin run because something had happened to the previous driver. It was night work, the hours nominally being 10pm until 6am six nights a week. For the first two nights, the plaintiff said Mr Robert Ussher Junior accompanied him on the run. Although they started at 10pm they did not finish emptying bins until after 7am and then the rubbish had to be taken to the tip so they did not finish until after 8am. The plaintiff was given a run sheet with details of the 531 bins to be emptied. (There has been some issue about the precise number of bins on the run. I am satisfied it was something over 500.) After the first two nights, when he was working on his own, he found it extremely difficult because of problems, one way or other, with the bins. He said that it was "simply impossible" to complete the run in the allocated eight hours. It always took an hour or more to finish and, on occasion, he was still going at 11am. He said that he did his best to get the job done every day. For the first month, despite being promised that there would be a relief driver on Saturday nights, he had to work seven nights a week. In the end, he found a friend to work as a relief driver on Saturday nights and he did this shift for about 12 months. This friend was Mr Graham Blacklock, whose evidence I deal with in due course. The plaintiff said he was given a run sheet which identified the truck he was to drive and made provision for comments about any problems that were encountered during the run. He returned the run sheet to the office at the end of each shift, either handing it to whoever was there or otherwise leaving it on the desk. He said that he recorded problems with emptying the bins on most nights. 8Over time, the plaintiff came to know the family members who were, one way or another, owners or managers of the business. These were Thomas McBurney Snr, Susan McBurney Snr, Thomas McBurney Jnr, Susan Benzie and Jimmy McBurney. Sue McBurney Snr was the daughter of Robert Ussher. Robert Ussher Snr and Robert Ussher Jnr were also involved. It was the latter who showed him the run over the first two days of his employment. (Susan Benzie was Susan McBurney Snr's daughter and is referred to for simplicity as Ms McBurney, which is how the plaintiff knew her.) Ms McBurney started work in about May 2000 and, so far as the plaintiff observed, took over the running of the business to a large degree, though but from time to time he would be given directions by her parents. 9The plaintiff's run entailed him parking the truck next to each bin (if he could, which was often not possible), alighting and unlocking a padlock securing the bin to the cradle, lifting the bin from the cradle and emptying it into the back of the truck, replacing the bin and the lock, getting back into the truck and then moving to the next bin. In order to get the run done within the eight hour shift (which was almost never possible at all events) he had to work in considerable haste. The lift started at about waist height, the bin then raised to above shoulder height to remove it from the cradle. He said that when the bins were damaged and stuck he had to use all his strength to remove and empty them. Where there were no handles, he had to adopt an awkward stance to manipulate the bins from the cradles. Of course there were some bins that he was unable to empty. 10A 240 litre wheelie bin which hung on a hook from the back of the back could be fixed to the mechanical hoist on the rear of the truck and upended and emptied into the back of the truck. The plaintiff said that the purpose of the wheelie bin was to get to inaccessible bins, for example in car parks where the truck could not drive up to them, so the collector would move around the car park filling the wheelie bin with the rubbish. Also, the bins were sometime secured by chains and could not be simply tipped into the back of the truck, and had to be emptied into the wheelie bin and thence into the truck. Amongst other things, it is obvious that this could not be used to remove the bins from their cradles and the bin had to be lifted to at least shoulder height to remove it from the cradle so it could be emptied into the wheelie bin. The only saving was that the wheelie bin could itself be lifted by the hoist and emptied into the back of the truck. The plaintiff said he tried to avoid using the bin as much as he could because it meant double handling and time was always short. 11As I understand the plaintiff's evidence, the problems were of three main kinds: bags of rubbish were left around the bins; the bins or cradles were damaged; and the bins were too heavy to be lifted without difficulty. So far as the bags were concerned, they were unsafe to be removed as they often broke and covered him in rubbish of varying kinds, some particularly unpleasant. Restaurant waste, which included chicken carcases, meat and vegetable scraps also made the bin heavy to lift, some weighing "as much, say, as a six year old child" (agreed at about 30kg). Not only were the bins filled but also several black bags would be found piled around the bin which, for a time, he left uncollected until, in late 2004 received a note threatening him with a fine apparently based upon the false allegation that he had taken the bags out of the bins and left them on the footpath next to the bins. (Ms McBurney's evidence was, in substance, that she told the plaintiff that the Council believed he was taking commercial waste bags out of the litter bins and would give him "on the spot" fines if he continued to do this. The plaintiff denied removing bags from the bins.) It was suggested to the plaintiff in cross-examination that, where there were bags of commercial waste inside the bin he could, if he wished, remove each singly by hand rather than attempting to remove the bin out of the cradle. The plaintiff said that that is what he did but it was still necessary to remove the bin to empty the remaining rubbish. A lot of the bins were in dark places and it was safer to pick up the bin and empty it because there might be dangerous matter in the bin. 12The damage largely comprised missing handles, making the bin difficult to lift, and deformed bins or cradles, causing them to get stuck. Sometimes building rubble, concrete and landscaping waste would be placed in the bins, making them too heavy to lift without considerable strain and, sometimes, too heavy to lift at all. In some cases also, because of the different designs of the bins, the wrong bin had been jammed into the cradle and was therefore very difficult to remove. In other cases, anti-litter signs were attached to the cradles with screws that were too long and obstructed removal of the bins. 13In cross-examination the plaintiff agreed that Ms McBurney told him, "initially" that if the bin was too heavy to lift than he was not to lift it. The plaintiff was shown a document headed "Street Litter Bin Policy as of 1 July 2002", which he signed. That policy stated - "Any bin suspected of having excessive weight should not be lifted". He signed that instruction. As I pointed out to Mr Walsh, counsel for the Council, at the time Ms McBurney's instruction did not mean much since, if a bin was too heavy to lift, he could not lift it. Mr Walsh explained, in response, that it was not his case that the plaintiff was ever given any advice as to what weight he should be lifting. To my mind the instruction put to the plaintiff really just amounted to, "Don't do the impossible" or, at best, "Don't try to do what might be impossible". The written instruction scarcely takes the matter any further. It is unarguable, as it seems to me, that an employer such as Usshers needed to ascertain what was a safe lifting weight in the circumstances of the work being undertaken by its employees, train them to recognise that weight and instruct them not to lift any bin the worker thought might exceed the weight. The instruction did not deal with damaged bins. 14The plaintiff was cross-examined about a note from Ms McBurney passing on an "allegation" from the Council that 19 bins in Queen Street, apparently ½ to ¼ full, had been left unemptied for two consecutive nights. The plaintiff explained that they had in fact not been missed but they were in the business area of Queen Street and would be refilled by the shopkeepers after they had seen him empty the bins and pass on. He agreed that there were occasions on which Ms McBurney told him that Council had inspected bins which he had reported as too heavy and told her that they were not heavy. He said that he had no idea how this came about because if he left a bin that he found impossible to lift then that was the fact. He was very fit when he began the job and had no problem with lifting. He thought if it was too heavy for him to lift than it was too heavy for anybody to lift. 15The plaintiff agreed that there were occasions during his employment when he reported bins as being too heavy to lift, by which he meant that he was unable to lift them. On 19 December 2003 in a facsimile message to Mr Brown at the Council, Ms McBurney informed him of the three bins which were "full of heavy food stuffs" and were too heavy to lift. Although the note does not state whether they were in fact lifted, the plaintiff said that there were occasions upon which he was unable to empty bins because they were too heavy and he would report these to Ms McBurney or someone at Usshers. He said that, on occasions, even when the bin had been reported as being too heavy for lifting it was not always emptied by the time he returned the following night. There were occasions when the bin stayed full for a week. 16The plaintiff said there was no training manual and no training at all in respect of occupational health and safety. There was an occasion when daytime drivers attended some sort of lecture or instruction and he was asked whether he wanted to attend but, having just completed a 12 hour shift, he was exhausted and attended only for a little while because he was too tired to go on. He said the instructions were given over a three day period but he did not attend again. There is no suggestion that any reference was made in this training to the issue of what weight it was safe to lift. 17The plaintiff said sometime in 2000 or 2001 Mr Thomas McBurney Snr was in the office on the telephone to Mr Brown, who was the contract manager for the Council. Mr McBurney said to Mr Brown, "Here, you need to speak to this man" and gave the telephone to the plaintiff. The plaintiff said that, during this (his only) conversation with Mr Brown he told him that about 10 or 15 per cent of the bins were inoperable because of disrepair, no handles or jammed into wrong cradles, sometimes too heavy to pick up, sometimes impossible to pick up, impossible to jar free. He also told him there was serious abuse by various commercial interests who were dumping rubbish into the bins and leaving extra bags around the bins. He said he had encountered a lot of restaurant food waste left in black bags which, on occasion, burst when being lifted and covered him in swill, that on occasions there had been concrete poured into the bins, on other occasions landscapers had dumped bricks, broken cement and the like and were using the bins to avoid the normal avenues for that kind of refuse collection. He said that the main problem was that the bins were just too heavy and too jammed in. The plaintiff said that Mr Brown's response was to say he inspected the bins regularly, he saw no evidence of any bins that were in disrepair nor any evidence of excessive weight in any of the bins and, the plaintiff thought, was almost accusatory. The plaintiff replied, "There was just no way that I on my own could cope with some of the bins that were neglected or overloaded." He said that Mr Brown told him that, if he encountered any difficulty, he was to telephone someone called Shane, whom the plaintiff understood was one of the rangers, and gave him a mobile telephone number. Mr Brown told him that he was to empty the bins regardless of what was in them. The plaintiff said that he tried to do this twice but could not contact Shane because the run finished before Shane started work and he never spoke to him. Mr Brown asked the plaintiff why he didn't get help from the other worker and the plaintiff told him, "There is no other worker, I do this on my own, it's a one man operation". The conversation ended with Mr Brown saying to the plaintiff, "Can you put Tom back on". The plaintiff gave the phone to Mr McBurney and left the office. 18The plaintiff was cross-examined by Mr Walsh for the Council suggesting that his recollection about his conversation with Mr Brown was faulty and Mr Brown had not said that he did not believe the plaintiff about the damage to the bins and that he was required to empty them regardless but the plaintiff insisted that indeed this was said and he recalled it. He became convincingly indignant when he was pressed on whether he had been reconstructing this conversation and he was asked whether he was sure that it occurred. I have no doubt that he believes the conversation occurred. This was the only conversation he had with Mr Brown and the only occasion, on his evidence, when he conveyed directly to the Council the problems he was having with the run. It seems to me that it was a conversation he was likely to remember, at least as to its substance and he was not confabulating, let alone fabricating his evidence about it. I am satisfied that the plaintiff conveyed the substance of his complaints about unserviceable and excessively heavy bins filled with commercial waste and building rubbish and told Mr Brown that he was the only worker on the run and also that Mr Brown told him that he inspected the bins and denied that what the plaintiff told him was the truth. In his evidence, Mr Brown was unable to recall one way or another whether he had spoken with the plaintiff and did not deny being told about the heavy and unserviceable bins although, in effect, he denied being told or, at least, knowing that the plaintiff was the only worker on the run. 19(There was an occasion upon which Ms McBurney sent Mr McBurney Jnr with the plaintiff to do the run after she had told him that she was going to split the run. However, he was extremely physically unfit and only managed to complete one and half nights, at the end of which period he was obviously in a state of physical distress and told the plaintiff that he could not go on. Mr McBurney denied this account of what happened. The parties have not suggested that I need to determine the controversy. I regard it as inconsequential.) 20There was frequent interchange between Usshers and the Council, amongst other things, about the requirement that all bins were to be emptied, regardless of contents, except where the bins were too heavy. It appears that the Council received many complaints about bins not being emptied. Mr Brown said that he personally inspected bins on some of these occasions on two successive days and found the rubbish which he had noted on the first day was still there on the second. The fact that there may have been some bins which were on some occasions not emptied is not relevant to any issue in the case, and, although the plaintiff's denials that he left bins unemptied might be adverse to his reliability to some extent, This is inconsequential to my mind. (It did not appear his honesty was in issue.) Of more significance is that this evidence supports the conclusion that Mr Brown gave close attention to the way in which the run was operating. Thus, on 27 December 2002 the plaintiff was given a written note by Mr Ussher Jnr, the operations manager, that stated, "On orders from Penrith Council all bins are to be emptied even if filled with foreign waste". Since the bins were plainly intended only for litter and not for either the commercial waste or heavy rubbish, this note can only be regarded as an insistence by Council that this material was all to be removed together with the normal litter, a direction accepted as legitimate by Ussher's and thus passed on to the plaintiff. To the same effect was a note to him from Ms McBurney (then in charge), he thought sometime in 2004, which took an entire A4 page to state simply - "PENRITH COUNCIL SCREAMING DO EVERY BIN!! ESPECIALLY RIVER ROAD, OLD BATHURST ROAD, EMU PLAINS, GWH [Great Western Highway]!!! PLUS GWH ST MARYS OPPOSITE VICTORIA PARK." 21In cross-examination the plaintiff was asked about the frequency which he found bins to be heavy or so heavy that lifting them might cause injury. He agreed that in 2001 it was probably one a month though in the odd month there might be five such bins, but it got worse over ensuing years. It was put to him that, by about early 2004, maybe one or possibly up to three a month were too heavy but he did not agree with this. He said there was a huge problem in early 2004 with a landscaper and that occurred every night along the whole of Henry Street where there were maybe 12 bins. He said that commercial waste was always a problem. He said that he prepared many reports to Ms McBurney about commercial waste left in bins. They were not necessarily too heavy but in the main they were. So far as stuck or jammed bins were concerned, he disagreed that in "the odd month, two or so bins were stuck of jammed and that was about the extent of it" saying it was "a week-nightly thing not a monthly thing". Every night jammed bins were a problem. He said he did not report this because he was discouraged by Ms McBurney from reporting anything although this conversation occurred in mid-2004 when Ms McBurney told him she'd had enough of complaints, which were not going down well with Council and she was being asked to dismiss him. He said that initially he reported damaged bins on the run sheet he was given each day but there were many days when he made no entries. After that he only wrote about damaged bins in his run sheets on one occasion. He said that a new arrangement came into place as to how he would notify Usshers of damaged bins. He was provided with an inventory of all bins on the run and asked to tick off all the ones that were difficult, damaged, heavy, dangerous. He said from that time until he stopped work in April 2005 he filled in possibly four or five of these sheets and gave them to a staff member. 22Since the litter run had been undertaken by Ussher's for some years, it seems virtually certain that whoever was responsible from time to time for managing this collection knew about the problems of deformed bins, heavy rubbish and missing handles which must have occurred to a greater or lesser extent from the very beginning. 23The plaintiff said that there was no point in him complaining about anything because nothing was ever done. He said that over the time he was emptying the bins from 2000 to 2005 he saw very little sign of any maintenance being undertaken on the bins or the cradles and that there were bins which were broken or damaged at the beginning of his employment which were still in that state five years later. He said it was extremely rare to see a bin replaced. 24In my view both Council, in particular, Mr Brown who managed the litter contract, and the management of Usshers considered that the issue of heavy bins, which the plaintiff was not expected to empty, concerned only those bins which were too heavy for him to lift at all as distinct from those which were too heavy to lift safely. I would accept that there were not many of the former, which because of the physical impossibility were not emptied. However, the crucial issue in this regard were the bins - which, I am satisfied, comprised a significant number - which were unsafe for him to repetitively lift. For obvious commonsense reasons, bins which required extra force to lift because they were stuck in their cradles and bins which only had one handle, and thus required initial lifting with only one arm were also likely to be too heavy to lift safely. None of this required an ergonomic expert: a moment's thought about the issue of worker safety would have been enough. 25Over the years he was working for Usshers the plaintiff had experienced pain in his shoulders and elbows from his work about which he saw his doctor but he continued to work on. As 2004 progressed he noticed increasing pain in his shoulder, elbows, neck, back and knees. A particular incident occurred on 29 November 2004 in Station Street Penrith at about 2am. (There was some issue as to whether this was the precise location but, in my view, nothing turns on this.) The plaintiff had to empty a bin which was full of heavy rubbish and which had been damaged so that it was jammed tightly into its cradle. He jolted the bin to release it. As he attempted to lift it, the bin suddenly released from the cradle and he felt an intense severe shooting pain in his left arm. (It may also have only had one handle, but the plaintiff's evidence about this might be mistaken.) The plaintiff said that the bin had been in that condition for the whole period of his employment and he had emptied it before. He said, "It was quite difficult to empty but with a heavy load in, unusual heavy load it, it was very difficult to empty". It was quite dark in the area under the overpass where the bin was situated. After a rest the plaintiff continued his shift but it took him two hours longer to complete because of the pain in his left arm. He said that when he returned to work at the end of the shift he reported his injury to Ms McBurney who gave him some Panadeine Forte tablets and said, "We are not here to be your pension fund". He went to see his general practitioner, Dr Obeidulla who prescribed Panadeine Forte which he used to control his pain. The plaintiff was not offered alternative duties and it appeared obvious to him that time off work was out of the question. 26At one point in 2004 the plaintiff was provided with an older truck with a different design so that he had to lift the bin some two feet higher than was necessary with the newer truck. He was not sure how long that situation continued but it appears he was still using that truck on 29 November 2004. 27The plaintiff continued working his usual duties until 29 April 2005, during the intervening months developing increasing pain and discomfort in both shoulders and arms, his neck and lower back. He also had pain in his hands and knees. What had been problems in 2003 when he first saw Dr Obeidulla but with which he could cope became disabling and he was unable to continue working at the end of his shift on 29 April 2005 and has not worked since. Lists of problematical bins 28I have mentioned the missing Council records and the possible - I think likely - gaps in the records of Usshers and Solid Waste as to problems with bins. It is also clear that the plaintiff did not always report unserviceable bins; indeed, my understanding of his evidence is that he often did not. I also point out that the issue of the cause of the plaintiff's injuries is not confined to these bins, but to unsafe weights that he (and his employers) did not think of as potentially dangerous. As it happened, however, in early 2005 three lists of problems were compiled, the first two almost certainly by the plaintiff. In September 2006 the plaintiff took photographs of bins in the Penrith CBD as examples of the problems he had encountered. Although, not surprisingly, these "compilations" are not identical, they reflect a similarity which is informative. 29On 22 February 2005 Ms McBurney emailed to Mr Brown a list of what she described as "First pass of OHS issues re bins" (emphasis added), 22 of which had either only one or no handles, 19 bins were too large for the cradle, five had issues with chains either being attached to the wrong side or too short, two had "tosser screws" (the screws fixing the anti-litter signs) which were too long and three bins were identified as having inside handles. It is most likely that this list was the plaintiff's because of the use of the first person in the following comment - "With inside handles the operators hands are on the inside of the bin whilst emptying it and heavier objects hit his gloved fingers as they fall out, or the load in the bin will not fall out due to the protruding handle allow free flow [sic]. Then I have to physically put my hand in a remove it whilst still holding the bin with other arm." 30On the last day he worked, 29 April 2005, the plaintiff prepared a handwritten list of bins with one handle, no handle and "arm breakers", a term meaning a bin that needed a great deal of physical force to remove, causing severe pain, sometimes being too difficult to remove. The numbering is not completely clear but my arithmetic has a total of 70. In his evidence in chief he said that he did not recall damaged bins ever having been repaired or replaced. He agreed that he came to know which ones they were and that he would have to use a fair bit of force to get them out. There were areas where bins were typically overfilled or filled with heavy material and in those areas also he would be more than usually careful. He said that there was nothing he could do about them: "I was obliged to empty every bin no matter what". 31By and large, one cannot infer from the lists of 22 February and 29 April 2005 that, merely because a bin, say with only one handle, is identified in a particular street in one list and a bin in the same condition is identified in the same street in the other list that they were the same bins since, in all the streets and locations in question, there were two or more bins required to be emptied. Even where it might be that the same bin is noted as damaged in both lists, it cannot be inferred from that fact that the bin had not been repaired in the meantime and damaged again by the time of the second list. Also there are inconsistencies with the lists in the sense that it appears that damaged bins recorded in one list do not appear in the other. A number of locations listed in one list do not appear in the other. It should be noted, however, that the earlier list is described as having been prepared "on a first pass" which suggests that it was compiled on a cursory inspection. I think it improbable, however, that a significant proportion of the damaged bins happened to be damaged simply over the one 24 or 48 hour period, even given the destructive tendencies of drunken persons skylarking in the areas identified. 32On 11 May 2005 a further list (not prepared by the plaintiff) of bins with no or missing handles was forwarded by Ms McBurney to Mr Brown identifying 13 locations. It is difficult to be altogether sure but it seems to me that these locations are not the same as those which were earlier complained of although there does appear to be a degree of overlap. 33It is reasonable to treat these compilations as fairly reliable indications of the situation as at their dates, noting that only the list of 29 April purports to be complete. I am also satisfied, chiefly relying on the evidence of the plaintiff and Mr Blacklock but also because of the incomplete documentary material, that the picture they represent was not unusual or exceptional but, broadly speaking, depicted the frequent if not daily actuality of the run with which the plaintiff had to deal. 34The plaintiff produced photographs taken in September 2006 when he went to look at some of the bins which he remembered had been broken and damaged when he last worked in 2005. He said that he took photographs of about 20 of these bins which had not been repaired in that period. He said that, when he went back to the specific bins which he remembered had been damaged when he last worked, not one of them had been replaced or repaired. Those photographs were produced. As well as bins which were photographed to show how they should have been, there were a number of other photographs of bins which were damaged. Several had labels which had been screwed in with bolts which were too long and compressed the bin into its surrounding, gripping the bin. A number of them show only one internal handle, some have no handle but holes cut into the side of the bin for handling, others are plainly too big for the cradle and also show distortion of the base, one shows the cradle has been hit or struck so that steel frame has been jammed inward against the bin. 35Mr Walsh dismissed the significance of these photographs. Two of the photographs are of undamaged bins, three are bins which are not damaged but were designed with internal cut out handles and seem to be photographed twice. Two photographs showed the litter sign on the one bin. Nine bins have one handle, two no handles. Six photographs show dented bins and three bin liners two large for their cradles. Mr Walsh points out that these photographs were taken almost a year and half after the plaintiff's last day on the job and submits they are not evidence of the state of the bins at the time the plaintiff was employed. Moreover, they were only a small proportion of the total number of bins on the run. The plaintiff did not say that he photographed all the damaged bins in the entire run, only those he remembered having been damaged when he was working. The plaintiff said they reflected the kind of problems which he had at the time of his employment. Furthermore, the reaction of the Council staff who gave evidence was, in substance, that the photographs were markedly inconsistent with the state of the bins as they thought they were, as I understand their evidence, either whilst the plaintiff was employed or at the time they were taken. It is true that one could not infer from the photographs how long the damaged bins had been in that state, nor when they may have been repaired, if ever. However, the photographs should not be looked at in isolation. They tend to support the plaintiff's evidence rather than that of Mr Pell and the Council employees. Plaintiff's witnesses 36Mr Robert Sammit was a street sweeper driver employed by Penrith City Council from 1986 to April 2012. Mr Zammit came to know the plaintiff when he was working on night shifts. He said that, from his observation of the plaintiff's work, it was very hard, he had to empty all the bins himself so that he had to get in and out of the truck hundreds of time every night and Council rubbish bins had "all sorts of rubbish in them because shopkeepers used to put their waste into those bins". He said that he would often stop and talk to Ralph for a minute or two when he ran into him on his rounds. He recalled on one night meeting him in High Street Penrith when he said that he had hurt himself emptying one of the bins. Mr Zammit understood that it was claimed the injury occurred in Station Street but said this would make sense because High Street and Station Street run into each other. He said that he did not remember the date of this conversation but he saw the plaintiff for a while after that and then he stopped doing the bin collections. 37The plaintiff also called Mr Graham Blacklock whom he had known since 1999. When the plaintiff started working for Usshers, Mr Blacklock said, he was doing some casual concreting work although he had previously done garbage collection work. The plaintiff asked him if he was interested in doing relief work collecting on Saturday nights and Mr Blacklock started work with Usshers in 2000. He had worked a few shifts before he met any of the management because he worked only on Saturday nights. Mr Blacklock said that his run involved collecting from street bins in Penrith and St Marys of which there was something over 500. He said that the bins were often stuck in the cradles because they were damaged and sometimes the handles were missing. Sometimes bricks or other building rubble had been dropped into the bins which made them very hard to lift and you would not know what was inside each bin before you lifted it because the work was done at night and often with bad lighting. He said that it was his job to empty all of the bins and he did that to the best of his ability. Mr Blacklock said that he never had a run where all the bins were undamaged. He said that probably at least 40 were damaged out of the over 500 bins he needed to empty on his run. The damage was of different kinds. Sometimes they had been run over or smashed against the cradle and these were hard to get in and to get out. As to the 40 bins or so that were damaged, some of them had been in that state for months. Although some of them were repaired most of them remained unrepaired. He said that where the cradle had been smashed against the bin making it hard to take the bin out and return it, these never got repaired. He thought that it was "easy over 30 of the bins which had been damaged which were difficult either to remove or return". This was a "pretty accurate" assessment. 38He was never given any form of training by Usshers and never told that he could simply choose not to empty a bin if it was too heavy. He understood that all bins were to be emptied. He suffered an injury on 6 January 2001 doing the run when he had to swerve the truck to avoid a head on collision and his truck collided with a telegraph pole. He suffered injuries to his neck and back and made a workers compensation claim. He said that Usshers' attitude changed after that accident. He said that he was no longer able to lift a lot of the heavy bins "and once I couldn't do the run without complaining they didn't want to know about me". He said that, at first, he did not realise that he had to report damaged bins but, after his accident when he could not lift them he started to report the bins that were too heavy, sometimes having different building materials like pavers or bricks in them. He stopped working for Usshers in March or April 2003. Defendants' witnesses 39Mr Jeffrey Brown was the Council's waste management and contract co-ordinator, a position which, in substance, he had occupied since 1990. From 2000 to 2006 he was in charge of the street litter bin waste collection contract with Usshers. His role was limited to managing the emptying of bins and the liaising with Usshers about that task. Maintenance or replacement was managed by another department which had an outdoor crew. He said that the system was that if he was advised by Usshers of a problem with a bin, such as being unserviceable, too heavy, damaged and in need of repair or problems with chains or padlocks, that information was passed onto that department, usually to Mr Ian Pell whose job was to co-ordinate the work of the outdoor maintenance staff. Mr Brown said that the litter bins were designed to allow pedestrians to dispose of small quantities of litter as distinct from any commercial, industrial or construction rubbish such as discarded building materials. Nevertheless each litter bin was to be emptied each night whether or not it contained this material except where the bin was rendered unserviceable because it was too heavy to lift. Mr Brown agreed that the tender which became part of the contract with the council provided for bins to be emptied by two employees and a casual but he did not ever check whether this actually occurred. He said that, after the plaintiff's accident, he discovered only one driver was used during a conversation with Ms McBurney about workers compensation. (As I have already said, I do not think this evidence is correct: he in fact discovered that only one driver was used during his conversation with Mr Healey in 2000 or 2001.) 40Mr Brown said, during the last two years of the contract, 2004 to 2006, there had been frequent meetings with Ms McBurney regarding compliance with the terms of the contract and there had been regular phone communications with her and others at Usshers. The "regularly" (by which I think he meant "frequently") recurring issues in the meetings and phone calls were daily complaints about missed bins, allegations of waste being removed from litter bins by Usshers' staff and placing the waste at the front door of shops suspected of putting shop waste in the litter bins, reporting of bins containing waste alleged to be too heavy to lift and reporting damaged bins. When Usshers notified the Council of heavy bins, he would arrange for Council staff to empty them. Mr Brown said, when he learnt that bins were not being emptied, he contacted Usshers by telephone and wrote letters to confirm his instructions that all bins were to be emptied. He also instructed that the bins were not to be emptied onto shopkeepers' front doors. In respect of heavy bins he advised Usshers' staff, he said, that he should be contacted and would organise for Council staff to empty them. 41I should mention that it is no part of this action to consider let alone determine the rights and wrongs of the issue concerning collection of commercial waste, whether placed in the bins or collected around them. The complaints are necessarily hearsay at all events. Nor is it relevant to determine how many bins might have been left unemptied by the plaintiff. The question here concerns the bins that the plaintiff did empty, not those that he did not. 42Mr Brown said that, in late 2004 and for a period in 2005, when complaints about this matter were frequent, he personally checked the contents of some bins and returned the following day to find them not emptied but the refuse in the bin the same as he had observed, leaving him to infer that the bin had not been emptied as distinct from emptied than immediately refilled. I have referred to the plaintiff's evidence in this regard. I accept the plaintiff as telling the truth to the best of his recollection and that he may simply be mistaken about having emptied all of the bins. At this remove it scarcely surprising that his recollection may have failed and, at all events, it is impossible to tell from Mr Brown's evidence how many of these bins were involved, even if I were disposed to accept that his recollection about this matter is complete. 43Mr Brown's evidence that Usshers' management and administrative staff "were told repeatedly, in meetings and phone calls from me, that their staff were to report unserviceable bins including heavy bins so that arrangements could be made for Council staff to service [them]" suggests that this was a continuing problem on a substantial scale. Mr Brown also said that Usshers staff were not expected to lift bins out without handles and expected to be notified of this so that they could be repaired by Council staff. However, it is obvious that the issue of handles was seen simply as one of maintenance and not of safety. He said he received spasmodic reports of overweight bins, which he understood would be reported as "unserviceable bins", and arrangements would be made for Council staff to empty them. He was taken to the survey conducted by the plaintiff on 29 April 2005 listing 53 damaged bins on his run and agreed that it would "come as extraordinary shock ... that on any one day there would be 53 damaged bins on this run" and that "had it come to his attention he would have taken it up promptly with Mr Pell". He was also shown the photographs taken by the plaintiff towards the end of 2006 which showed a number of damaged bins and said that he would not have expected that number of bins to be in that condition at the one time. 44Mr Ian Pell was employed by the Council as the co-coordinator in charge of approximately 42 outdoor maintenance staff until late 2006 when he retired. He held this position from sometime well prior to 2000. He said that Mr Brown would periodically call him to tell him about damaged bins or bins full of restaurant refuse or overfull or too heavy (for example with builders' waste). Mr Pell would then delegate to his staff the task of fixing the problem. There were a number of problems with padlocks jamming and they also were fixed when Mr Pell became aware of it. He said that, in the late 1990s or early 2000s the Council started to chain the bins to the cradles because bins were being removed and used to smash shop windows. The chains were between 1.5 and 1.8 metres long designed to allow the bins to be emptied into another bin and not intended to be long enough to go from the footpath to the garbage trucks. He said, from about 2000 the Council started replacing the older style cradles with a newer style which did not require a chain because they had a locking system to secure the bin. This process had been almost completed by about 2006. He said that between 2000 and mid 2005 he would spend about one full day each week inspecting the work undertaken by council staff, walking around the shopping centres to check that the surrounding areas had been swept and weeded and, as he did this, looking at the bins. He said that he could not recall an occasion when a bin that he had asked to be fixed had not been attended to. From time to time damaged bins would be hammered out with a sledge hammer carried by staff. The Council rangers who patrolled during the daytime looking at the bins to check for damage simply drove past. It seems reasonable to infer that the damage to a bin which caused it to be jammed in the cradle or difficult to remove from the cradle might not be noticed. Mr Pell's inspections were also done whilst driving past. Mr Pell did not accept that, on any one day, perhaps as many as 40 bins were damaged. Mr Pell was shown the photographs taken by the plaintiff and agreed that they showed many damaged bins. He said that many of the bins only had one handle but they were designed in that way. He agreed that, even leaving out the bins with internal handles and one handle, on the assumption that the photographs were taken on the same day, "maintenance was not what it should have been". He was taken to the list prepared by the plaintiff on 29 April 2004 and, accepting its correctness, he said that he would not infer his subordinates had not attended properly to their work. He said that there were hundreds of bins and "to check every bin everyday is virtually impossible". So the number listed was a margin of error which he would accept as reasonable because of staff limitations. 45Aside from the evidence of Mr McCallef (set out below) to the opposite effect, it is clearly wrong that these bins were designed to have only one handle. Replacement of missing handles was a continuous task of which Mr Pell must have been aware. I reject Mr Pell's evidence on this matter. 46Mr Charles McCallef worked for the Council from 1977 to January 2006. Between 2000 and 2004 he worked in the Penrith and St Marys area carrying out street sweeping duties. This involved walking around about 15 shopping centres each day collecting rubbish with a broom and scoop and, he said, inspecting the litter bins. There were two men in his team who walked along High Street Penrith and Queen Street St Marys, the major commercial thoroughfares, each day collecting rubbish and tidying up the streets. The procedure was that he would meet the two men at lunch time each day to check if there were any problems. These included problems with the litter bins, for example, broken chains or concrete in a bin. He said that if he was informed about a problem he would inspect the bin in the afternoon and try to fix the problem himself. Many of the bins had handles welded onto the side but, if a handle were missing, the bin would be replaced rather than attempting to weld on a handle. Missing handles were replaced by riveting a new handle onto the bin. Mr McCallef also confirmed that all of the bins were supposed to have two handles. If it came to Mr McCallef's attention that a bin was out of shape he would use a sledgehammer which he carried in the back of his vehicle to knock it back into shape if it could be fixed. If damaged beyond repair, the bin would be replaced. He said he collected, in alternate weeks, 15 bins in each of the Penrith and St Marys areas to be taken to the Council depot, washed and painted, replacing the bins when they were removed. The bins in questions were in three streets in the CBD of Penrith and, in St Marys from the highway to the station and one or two bins in the side streets. (Given that the number of bins was about 530, this maintenance program in each month would have covered only a very small proportion of the total. The total number of bins in the relevant areas was not disclosed, so that, although not insignificant, the extent to which this process - if it were actually undertaken in accordance with the stipulated timetable - reduced, if it did not overcome, the problems described by the plaintiff is difficult to assess.) 47In about 2004, the Council split the work areas into two separate parts and Mr McCallef became responsible for the team working in the St Marys area whilst a Ms Veronica Vincent became responsible for the team working in the Penrith area. The nature of his work, however, did not change. Mr McCallef, as I understand his evidence, would clean what he described as "the little shopping centres" away from the main streets of the CBD. There were areas outside the shopping areas where neither Mr McCallif nor his staff went and relied on communications from Mr Brown and other Council staff if something was wrong. The streets of Penrith and St Marys were cleaned in this way nine days a fortnight. 48Mr McCallef agreed that he had seen bins pushed out of shape so that they were stuck in the cradle but said that he would either fix it or change the bin. He denied that there were damaged bins in the area he and his team supervised which were not repaired for months or years. It seems, however, when in 2004 he got the job as supervisor working in the St Marys area, he was not responsible for fixing bins, just cleaning the streets. He said that it was not uncommon for the bins to remain unemptied when they were too heavy for the Usshers' collector. He said, when he was working in the St Marys area he thought he replaced about 10 handles a month. He was asked whether, in the area for which he was responsible before the changeover in 2004, it would have been possible that on one day there might be 53 bins which only had one handle or no handles or were jammed into the cradles and he said that it was not possible. He was taken through the photographs which, he agreed, showed 25 damaged bins. He said that there would not be so many bins damaged in one day. Since I accept the correctness of these compilations as reflecting the actual position both at the time they were made as well as, broadly speaking, over the entire period from 2000, it follows that Mr Micallef's recollection in this regard is incorrect. 49Ms Veronica Vincent was employed by the Council as a labourer in October 2001 and remained in that role until 2004 when she was made team leader of the cleaners in the Penrith area following its separation from St Marys. She was in charge of a crew of three who cleaned the main streets in Penrith. They were expected to check the bins as they cleaned and repaired or replaced damaged bins. Once a week or fortnight bins were cleaned and replaced as previously described. If, during this process, broken or damaged bins were noticed they would be fixed or replaced. Ms Vincent thought that her team "stayed on top of fixing the bins". She said if she was told by Mr Pell that there was an issue with a bin she would always check the problem and fix it as soon as possible, if not immediately then the next day. Occasionally the bin cradle was damaged and needed to be replaced. This was the task of Ms Vincent or her team. The team cleaned only the CBD in Penrith but occasionally went to the outskirts. In cross-examination Ms Vincent was taken to the plaintiff's list of 29 November 2004 and was asked to note the list of 26 damaged bins. Ms Vincent said that she would be surprised that if at the end of the day when her team had been working in the area there were still 26 bins damaged. She would have expected that, at the end of the shift, there would be no damaged bins left in those areas. Ms Vincent was shown the email from Mr Brown to Mr Pell which listed, on an occasion in May 2005, 13 bins in the Penrith business area with no handles or only one handle. Ms Vincent said that she could not explain this number of broken or missing handles although she said it was possible that 13 might be broken in a day because occasionally, people leaving the pubs in the area would go around damaging bins. She denied that either her or her team were indifferent to damaged bins. 50The recollections of either Mr Micallef of Ms Vincent as to the extent to which damaged bins were noticed or, when noticed, repaired do not lead me to doubt the essential reliability of the evidence of the plaintiff and Mr Blacklock as to this matter. This follows from my view of them as witnesses, the compilations and the (incomplete) documentary material as well as the, admittedly irregular, contemporaneous complaints made by the plaintiff to his employers. 51Mr McBurney Jnr, the grandson of Robert Williams Ussher Snr (one of the founders of the business) commenced working for Usshers when he left school in 1996, doing general maintenance on the trucks as an apprentice yard hand. He reported to his father, who was one of the managers. Although he knew the plaintiff, he did not recall when he commenced working for Usshers. In about December 2000 or January 2001 Mr McBurney became operations manager of the company, overseeing bookings and run allocation and dealing with issues concerning drivers, trucks and customers. In relation to the drivers he needed to ensure that they had personal protective equipment, knew what the customer concerns were, maintenance issues, start and finish times and any other issues that drivers had on the job. Each driver was expected to report to Mr McBurney at some time during the day. He had day to day contact with the plaintiff whom he would generally see each morning at the end of the plaintiff's shift when he would hand in his run sheet. One of the other staff would take the plaintiff's paperwork out of his tray each morning and, if there was a report of a broken bin or a bin that was too heavy to lift, he understood that one or other of those staff members would report it to the Council. If he became aware of a report that a bin was not emptied he would ask the yard hand or find a spare driver to go out and empty the bin. He said that he repeatedly told the drivers, including the plaintiff, that he could be called at any time of the day if there was a problem and he was contactable all night on his mobile. He said that he expected to be contacted if there was an issue with doing the run and did not recall any call from the plaintiff whilst he was doing the run reporting problems with the bins. He said that he told the plaintiff on more than one occasion that he had to empty every bin every night. Every now and then he said that he would tell the plaintiff not to lift heavy bins. He said the plaintiff was expected to use his common sense to work out what was an acceptable weight to lift and what was too heavy. He said that he never reprimanded the plaintiff for not collecting a bin that was too heavy. He recollected the occasion upon which he was sent out with the plaintiff to do a night run with him for the week. This was done at the direction of his sister, Ms Susie McBurney, who was the general manager. He disagreed with the plaintiff about the way he worked on this run. (Although I am minded to accept the plaintiff's evidence about this simply because I found him an impressive witness this is an issue which, as I have already mentioned, I do not need to resolve. It is not relevant in any real sense to the issues in this case.) Mr McBurney said that on many occasions he saw the plaintiff at the end of his shift with weights strapped to both ankles saying, "I am trying to add some fitness". (The plaintiff has denied ever wearing weights on his ankles. Again, I am minded to accept the plaintiff's evidence on this point but the issue is essentially irresolvable and I do not propose to determine it. It is, so far as I can see, not relevant to any issue in the case.) 52Mr McBurney said that he did not think the plaintiff ever told him he had been injured and does not recall a complaint between November 2004 and May 2005 that he had any health issues, despite talking to him nearly every day after his shift. He said that the plaintiff had not complained to him at the end of his last shift in May 2005 about any problem. Mr McBurney agreed that over 500 bins needed to be emptied on the run and that the distance to be travelled in the truck was about 150 kilometres or so. He agreed that the plaintiff probably went over the eight hour shift time twice or three times a week. He said he would expect most drivers to do a 10 to 12 hour shift every day. He said that he would see the plaintiff at the end of his shift at the operations window and, if there were any issues, the plaintiff would go up to see his sister. 53Ms McBurney is the daughter of Thomas Henry and Susan Joy McBurney, the former being in partnership with her grandfather and uncle, the Usshers, prior to 1998. In 1998 the business was taken over by Usshers Pty Limited, a company of which Ms McBurney's parents were sole directors. She commenced working with Usshers in about May 2000 in a sales role and came to know the plaintiff as a casual employee doing the night bin collection run. Her role eventually developed into that of general manager, making executive decisions about the day to day running of the business including, in particular, liaising with the Council and dealing with occupational health and safety issues. She accepted that it was her responsibility that staff were appropriately trained. There was no written training manual and, apart from the written workplace policy drafted in 2001, there was no formally documented work system. At some stage, the date of which she apparently has forgotten, she arranged for staff to attend the "Certificate III transport and distribution training" which, she said, included a manual handling module. Ms McBurney did not explain what was involved in this training session. I think this is the training event referred to by the plaintiff. 54Ms McBurney had little day to day interaction with the plaintiff. She called him a "set and forget" employee, being expected to work autonomously and make such decisions as what bins were safe to handle. She said that she would see the plaintiff in the operations room at his shift on probably two or maybe more mornings during the week between about 8am and 10am. They would usually have a brief chat and she would often ask how he was going. She said that the system was that the plaintiff was to hand in his run sheet every day, on which it was expected he would record any problems with the run. These would be given to her younger brother Tommy McBurney who was operations manager and was supposed to be sent onto the Council if matters mentioned on the sheet needed to be reported. From time to time, Ms McBurney said that she would issue basic instructions to the plaintiff about not lifting heavy bins, wearing gloves and reporting illegal dumping. 55The plaintiff was paid normal time for the first seven and a half hours of each shift, the next two hours at time and a half and remaining hours at double time. She said that at one stage she told the plaintiff that the run was taking 10 ½ hours or longer and Usshers could not afford to pay double time after 9 ½ hours and a meal allowance. She told him that she would have to consider splitting the run and putting someone on with him to reduce his hours. She said the plaintiff responded that he did not want the run to be split because he needed the money. She said he told her that he would change the Bundy card to stop the double time and meal allowance and then he did not have to rush. It seems that Ms McBurney acquiesced in this proposal. She said that, at some stage, she sent her brother Tommy to do the run with the plaintiff for about a week but, in the result, having an extra person saved only about two hours and did not justify the additional expense. 56Ms McBurney said that the plaintiff was not expected to empty bins that were damaged or broken or had handles missing or which contained objects which were too heavy or that were stuck in the cradle. Even if this was so, I observe, she did not suggest that she ever told the plaintiff that he was not expected to empty these bins except for those which were too heavy. She said that if a bin was too heavy or damaged the plaintiff's job was to inform her or one of the office staff who would inform the Council, which would arrange for the bin to be emptied. She said, so far as she was aware, whenever this happened, the Council dealt with the bin in question. On one occasion when a complaint of a heavy bin was made Mr Brown responded to Ms McBurney that it was checked and found not to be heavy. Other calls to Ms McBurney were made complaining about bins not being emptied after the plaintiff's runs and on occasion on the outskirts of the serviced area. Mr Brown reminded her "under the contract you are obliged to empty every bin every night". She agreed that this was what she expected the plaintiff to do and told him this on more than one occasion. However, Ms McBurney said, she spoke with the plaintiff on at least one occasion, probably more, telling him that if the bins were too heavy he should leave them, make a note and the Council would do them. Ms McBurney could not recall whether or not the plaintiff told her on or about 29 November 2004 that he hurt his shoulder lifting a bin. She said, however, that he did not tell her during the following months that he was having problems with his shoulders or required his work duties to be modified. She said, on or about 3 May 2005, the plaintiff told her that he was making a workers compensation claim and that she was surprised because, she said, she was not aware that there was any problem with his work. 57In cross-examination Ms McBurney agreed that there was tension between the requirement of Mr Brown who complained if bins were not emptied and, on the other hand, the fact that the plaintiff was not supposed to empty bins if there was any problem with them, including being overweight or damaged or having missing handles. She agreed that if there was a heavy bin and the plaintiff managed to lift it, was that was less troublesome than if he left it behind to be reported to the Council for it to empty the bin later on, saying "[that's] right, its one of those difficult things where we obviously didn't want to cause Council too much grief". 58I have already mentioned the sheet of paper on which Ms McBurney has set out in large capital letters taking up half of the sheet "PENRITH COUNCIL SCREAMING DO EVERY BIN!!". Ms McBurney said that this note was written in relation to bins on the outskirts of the run where perhaps it might be possible to "get away with not doing a bin every night because there might only be one coke can or one cigarette pack". She said that Mr Brown had not, as I understand her evidence, explained what the problem was, but simply insisted that every bin was to be emptied every night. 59Mr Robert Ussher was a partner of the business R W Ussher and Sons, which entered into the first litter bin service contract with Penrith City Council.in 1990. There were two successive contracts, the last of which was assigned to Usshers Pty Limited in 1998, the partnership ceasing to operate. Mr Ussher then operated his own business, occasionally visiting the Usshers' business premises to say hello but did not do any work for the company. Expert opinion 60The plaintiff called Mr Neil Duncan Adams, an expert in ergonomics. The defendants did not submit that Mr Adams did not have sufficient expertise to give evidence about the issues in the case along the lines of his report and therefore did not object the admissibility of the report or to that evidence. It was submitted, however, that there was a live question as to the extent of Mr Adams' direct experience with the particular activities undertaken by the plaintiff, which militated against unqualified weight being given to Mr Adams views. In the result, this criticism was not made good. I consider that Mr Adams was adequately qualified to express the opinions in his evidence. Indeed, except for technical information, they confirmed one's own commonsense views. 61The following is a description of the work undertaken by the plaintiff which he described to Mr Adams. It is not, as I understand it, controversial and it is a useful summary of that work. At all events, no objection was taken to its hearsay use and it seems to me that this material can and should be used substantively. This issue is important, since the plaintiff did not give direct evidence of the weight of the bins he needed to lift and empty. The plaintiff, of course, was available to be cross-examined about it. Except for the qualifications that might be taken from the evidence of their witnesses, I think it should be accepted that these matters were not in substance disputed. 62The plaintiff worked six nights a week for about the first four years but, for most of 2004, he worked seven nights because a replacement worker could not be secured. The large majority of the bins emptied by the plaintiff comprised round metal containers (the bins) within a variety of stands (the cradles), generally situated on footpaths. Each bin had to be lifted from its cradle and either carried to the truck or emptied into a second bin which was carried to or wheeled to the truck. At the rear of the truck the plaintiff raised the bin to a sufficient height to clear the lip at the rear of the truck's waste receptacle and invert the bin to tip its contents into the truck. He would reach forward with the upturned bin and strike it firmly two or three times against a solid component of the truck's structure to ensure all content was dislodged and fell into the truck. The bin would then be returned to its cradle and the truck moved to the next bin. When the plaintiff arrived at the next bin, he would park the truck so that its rear would be as close as possible to the bin. After unlocking the bin he lifted the bin by its handles clear of the cradle. Each of these initial lifts involved raising the bin to close to if not slightly above shoulder height. The plaintiff would rest the bin on top of the cradle, usually about 800 metres above ground level, and transfer one of his hands to the base of the bin before lifting the bin in from the top of the cradle and carrying it to the truck. The bins were usually secured by a chain, sometimes long enough for him to tip the contents of the bin directly to the truck but, when the chain was too short, he emptied the bin into a spare bin carried on the back of the truck which was then emptied into the truck. Mr Adams noted that the plaintiff needed to carry that spare bin between the cradle and the truck but, as I understand it, this was a wheelie bin which did not need to be carried and could be emptied into the back of the truck using a device attached to it. This mistake is inconsequential. 63The empty metal bins weighed up to about six kilograms but, of course, the weight of the contents was highly variable, the plaintiff said between 1kg and well over 40kg, the greater weight comprising a "significant proportion" of the total. This proportion was not further refined. However, since Mr Adams' calculations (discussed below) yielded a very conservative safe weight limit of 10kg and the bins weighed almost 6kg, with the average weight of rubbish (routinely close to two tonnes, relying on the weighing of the truck when the waste was dumped), about 4 kg, the likelihood of many bins well exceeding 10kg is very high and it is not unreasonable to accept the plaintiff's estimate of a significant number exceeding 40kg. 64Most of the bins only had to be carried for one to two metres, although a number of them had to be carried up to eight metres. The plaintiff would usually carry bins in this instance by lowering them to about waist level, which he found more comfortable, but to prevent them from snagging on the small pouch around his waste (which he was obliged for security reasons to wear) or keys for the bins which hung from his belt he needed to hold the bin slightly out from his body. 65The plaintiff's account to Mr Adams of the occurrence on 29 November 2004 is to the following effect. He arrived in his truck at the bin in Station Street, Penrith. As he had previously experienced at that location, the bin did not fit properly into its cradle and would usually be overfilled due to commercial users forcing excessive amounts of waste into it. The plaintiff unlocked the bin, grasped it by the handles and exerted what he described as "a very strong" two handed lifting force. He did so because he (rightly) expected that the bin would be both heavy and jammed in the cradle. The bin did not move, so the plaintiff tried again, increasing the level of force and attempting to jerk the bin free. This was unsuccessful. He tried for a third time, this time using close to the maximum amount of force to which he was capable and again commencing with a sharp upwards heave. The bin came free but, as it did so, the plaintiff experienced a very sharp pain in his left upper arm. He kept working despite the pain and completed his shift. He reported the incident when he returned to the depot that morning and continued to work as usual over the ensuing days, hoping that the pain would resolve spontaneously in a short period of time. However, when the pain had not resolved some five days later he sought medical attention. 66Mr Adams' ergonomic evaluation may be summarised as follows. The exertion of the forces involved in the routine performance of the plaintiff's tasks over several years would be categorised with virtually all currently accepted criteria as likely to entail very significant risks of injury. The National Institute of Occupational Safety and Health United States (NIOSH) sets a calculation limit for an "ideal" safe lift of 23 kilograms, a limit adjusted downwards according to the extent to which various risk factors are involved in any specific list. The National Standard and Code of Practice in Relation to Manual Handling, released by Work Safe Australia in 1990, recommends that, if the load to be lifted exceeds the range of 16 to 20 kilograms, the task should be analysed in terms of its risk potential with a view to possible modification. Mr Adams' report stated - "To assess the level of risk associated with any lifting task, consideration needs to be given to the specific characteristics of the activity, including evaluating relevant postural factors. While lifting tasks within the range of about 10 to 40 kg (ie. the probable weight range of the majority of the many bins that Mr Healey lifted and carried) would not necessarily exceed some of the older recommendations for lifting limits, the risk of injury to which Mr Healey was exposed would have been increased beyond safe limits by the following: · Mr Healey occasionally lifted bins weighing in excess (possibly well in excess) of 40 kg; · Mr Healey was also obliged to carry many of the bins for distances ranging up to about 8 metres. Whenever carrying is required, the recommended weight limit should be reduced. For example, the table provided in the review article cited in the appendix suggests that the recommended weight limit for a two-handed carrying task involving a distance of about 8 metres would be approximately 15 kg. Mr Healey carried over such distances loads weighing well over twice times that recommended limit. Similarly, the Liberty Mutual Maximum Acceptable Carrying Weight tool indicates that short distance carrying tasks (the tool allows for a maximum distance of only 8.5 metres) repeated once every 5 minutes should be limited for adult males to a maximum weight of about 27 kg (the weight that 75% of male industrial workers are capable of carrying in those circumstances); · The loads that Mr Healey was obliged to move were large and bulky, and generally had to be carried in an unbalanced and uneven manner involving asymmetrical loading of his back, shoulders and arms; · Mr Healey routinely lifted bins to above the height of his shoulders. In this context it is relevant to note that the National Standard and Code of Practice for Manual Handling indicates that the risk of injury is greater if a person is required to lift above the level of their shoulders. This is supported the set of guidelines and the formula endorsed by NIOSH in 1991. Those guidelines stipulate that, if the lifting height exceeds 1750 mm, a multiplier of zero is to be inserted in the equation used to determine the reasonable weight limit (RWL) that should apply to a given task. Obviously, a multiplier of zero in the formula results in the RWL also being reduced to zero (ie. there is no weight at which the lift would be regarded as safe); · Mr Healey was obliged by the nature of the task to reach well forwards with each bin after he had inverted it to strike its rim against the truck in order to ensure that all of the waste that it contained had been dislodged into the truck. On the basis of his description, I have assumed that he reached horizontally with each bin for at least 500 mm inside the rear of the truck - corresponding to 750 mm horizontally in front of a point mid-way between his ankles. Again, with reference to the NIOSH guidelines and the formula, a multiplier of zero is to be inserted in the equation if the horizontal lifting distance exceeds 630 mm; · Mr Healey was also frequently obliged to twist while lifting (eg. when transferring a bin into his standard carrying position - one hand below its base, the other on a handle near its rim). It is well known that the structures of the back are more susceptible to injury if the back is twisted while lifting forces are being exerted; · Many of the lifts involving "problem" bins were achieved by the rapid or jerking exertion of an initial high-level force, including repetitively from time to time (as on the morning of 29 November 2004)". 67Mr Adams explained that using the NIOSH formula and guidelines, which are relatively conservative, the RWL can be derived from which a lifting index (LI) can be calculated. He said that the LI gives a much more realistic and less conservative indication of the potential for injury that may be inherent in any lifting task. It is calculated by dividing the actual load lifted by the RWL after taking into account most, if not all, of the relevant variables or risk factors that might contribute to the potential for injury inherent in that lift. An LI of one enables the task to be regarded as lacking a significant risk of injury and within the capacity of the average adult. On the other hand, an LI of three or more would represent an unacceptably high risk of injury and warrant urgent modification. He pointed out that, despite the NIOSH approach being one of the most comprehensive ergonomic evaluation tools available, it cannot fully indicate the magnitude of risk because it does not include a multiplier for the carrying (as distinct from lifting) that was involved. It is also relevant to note that he has analysed only the initial phase of the lift, that is lifting only the bin from the floor to the top of the cradle. The further lifts to shoulder or waist height should be regarded as separate, as well as lifting the bin to invert it and striking its rim against the truck. Despite the varying individual parameters relating to each of these successive lifts, he thought similar RWLs would be produced. Undertaking these calculations and assuming 530 bins were lifted, the RWL for lifting bins to the tops of the respective cradles would have been about 10 kilograms; comparing that limit to the average weight of bins produces an LI of about one. However, where the RWL is 40 kilograms, a weight that the plaintiff believed was exceeded by significant proportion of the bins, it produces an LI of at least four indicating that the work entailed risks of injury which were unacceptably high. When the carrying is taken into account, the RWL would be higher and the LI correspondingly lower than those that should apply to the work. 68Overall, Mr Adams concluded that the performance of the lifting and carrying associated with the standard tasks described by the plaintiff entailed risks of injury that must be categorised as unacceptably high. A further negative adverse factor was the need to perform the task rapidly or in a jerking manner (where the bin was stuck in the cradle), which are not taken into account in the NIOSH analysis. Where this occurs, the forces associated with acceleration are very much greater and can impose very much higher stresses on the musculoskeletal system than those entailed in simply supporting or slowly lifting the same load. Mr Adams cited a 1990 report which described the additional forces associated with acceleration as likely to impose (on the L4/L5 vertebral joint) loadings that are between 20 per cent and 200 per cent higher than those might be expected when acceleration is minimal. It is obvious that this study, though focused on a particular joint, strongly suggests significant increases might also be expected to occur in relation to other parts of the musculoskeletal system, including those of the shoulder and upper back and neck. 69It is important to note, as Mr Adams pointed out, it is clear that the various spinal structures are susceptible to cumulative damage when subjected to excessive loadings, the facet joints and elastic lining of the intervertebral lining of the discs being particularly notable in this regard. Each episode of overstressing may contribute to cumulative injury without any one incident being experienced as severe or traumatic enough to signal "injury". The final precipitating movement or lift may not be any more apparently demanding than many of those which contributed to the injury but has the effect of "the straw that broke the camel's back". 70Mr Adams pointed out that, although most of the criteria and recommendations summarised in the extensive references to which he referred focus attention on the potential for injury to the lower back, it is generally accepted amongst ergonomists that a task imposing potentially injurious stresses on the lower back would also entail a risk of injury to the other components of the musculoskeletal system involved in forceful exertion. Thus, in one study containing a table of 21 factors listed as potentially causing injury in the lower back, 16 are also factors relevant to injury causation to the neck, shoulders and upper part of the back. There is other strong evidence that factors such as extreme posture are related causally to neck injuries, as is exertion of considerable force and repetition and/or prolonged static loading - both clearly required in the tasks described by the plaintiff - are causally related to neck and shoulder injuries. 71During his evidence, Mr Adams was asked about the significance of the availability of one as distinct from two handles for lifting the bins. He pointed out that the force imposed on the lifting arm is effectively doubled but also the asymmetry of the loading on the other parts of the body creates a greater risk of spinal injury as well as greater risks to the shoulder of the lifting arm. Of course, where the bin is stuck in its cradle and has to be jerked free, the friction between the cradle and the bin increases the effective weight of the load. Additionally, the speed of movement or greater acceleration is more problematical than smooth lifting because force is a product of mass and acceleration, thus jerking increases the forces involved. Furthermore, where a force has been used to free the bin and suddenly it comes free the loss of equilibrium causes some additional strain. Mr Adams agreed that the presence of two lifting handles on the bins would be a significant matter to bring to the attention of an employer of garbage collectors, as well as would be the ease with which bins could be extracted from their cradles. 72A number of the bins had internal handles. Mr Adams said that, from an ergonomics perspective, it is undesirable to have internal handles rather than external handles, amongst other things, because of the postural effects of having to reach inside the top of the bin which is going to produce an awkward posture increasing the risk of arm and shoulder injuries. This is little more than ordinary commonsense would suggest. 73Mr Adams was asked about the significance of working hours being ten and a half hours daily instead of eight hours. Performing necessary calculations, he said the recommended weight limit of 10 kilograms would reduced to 8.83 kilograms. For the purpose of his calculations, Mr Adams had averaged the total number of lifts across the total hours in which lifts were performed. When it was pointed out to him that the plaintiff's work, in effect, was bunched so that there may be a large number of bins in a short timeframe then rather a longer period elapsing before he moved to the next substantial concentration of bins, for example in another shopping centre, Mr Adams said that averaging was more likely to underestimate the overall level of risk because the risk would be greater for those periods in which he did more lifts in a given time period, so his approach was conservative. He pointed out that doing the same number of lifts over the additional two and half hours period would not significantly change the NIOSH equation. He pointed out also that (consonant with everyday experience) the longer the task is undertaken in effect, the heavier the bins appear to get because the task becomes harder and harder with repetition. 74In cross-examination Mr Adams was asked about his experience. As I mentioned above, this produced nothing that qualified his expertise. He was cross-examined about the assumption that the plaintiff was lifting from one to 40 kilograms. However, the crucial matter was the risk, calculated by reference to (but not entirely controlled by) the NIOSH figures so that, for example, if the bins that the plaintiff actually lifted weighed in excess of 30 (rather than 40) kilograms then the LI would still reach 3 or above and would hold an unacceptably high risk of injury. Mr Adams emphasised that this assessment is based purely on weight and when taking into account the numerous other risk factors (already mentioned) that lifting index is very conservative. So far as training is concerned, he said that in this system of work he would not have expected training to have a great impact on the overall level of risk but it might have enabled the worker, to the extent that he could, to minimise the risks by ensuring that he always adopted the best posture that he could, that he always lifted without a jerking application of force, further if the bin were emptied into the wheelie bin that would reduce the risk of the need to carry and, of course, using the lifting device on the back of the truck would avoid the risks involved in that process. Mr Adams pointed to the importance of having a system of work which reduced risk. He agreed that having two workers on the run, thus reducing the work by half, would reduce the risk of injury. Given that the risk, although discrete in relation to one lift and carry, is cumulative because the potential for injury increases with repetition, Mr Adams also agreed that the plaintiff's work over five years had a high likelihood of leading to the development of at least some of the plaintiff's injuries. Relationship between Usshers Pty Limited and Solid Waste 75Although there is little doubt that the plaintiff's employment did change over from Usshers to Solid Waste - he signed an acknowledgement of this fact, which was tendered - and, it may be, so did other employees, it is clear that nothing changed so far as his work was concerned. Of some significance is the fact that Ms McBurney who became general manager of Solid Waste remained in her previous role of general manager of Usshers Pty Limited. Usshers continued to be the contracted party with the Council in respect of the litter bin run. Solid Waste fulfilled its responsibilities under the contract, but by arrangements with Usshers and not with the Council. In my view it is clear that the two companies undertook the run. Put otherwise, the emptying of the Council litter bins was the joint enterprise of the two companies. Ms McBurney managed Solid Waste alongside, in respect of the litter bin run, her responsibilities to Usshers to ensure that its contractual obligations were satisfied. Moreover, the Council was well aware of this situation, although it was, no doubt, indifferent to it, provided the rubbish bins continued to be emptied in accordance with its contract. Its interactions over the contract were with Ms McBurney wearing, as it were, both her hats. The position of the Council 76I have already mentioned occasions upon which the Council, through Mr Brown, complained that bins were not being emptied and insisted on all bins being emptied. Whilst, I think, he accepted that bins which were too heavy to be lifted could not be emptied and required the Council workers to attend to them, I have no doubt that he expected all bins to be emptied if this was physically possible and that he never turned his mind to the issues of what might be safe for the worker undertaking this task. Other issues such as missing handles or damaged bins were seen only as maintenance problems requiring correction but not as hazards creating a risk of injury. I think it is evident that Mr Brown was aware on many occasions that heavy waste was placed in bins which, had he thought about it, might well have constituted a risk for the worker removing the rubbish but that, so far as he was concerned, if the bin was physically capable of being emptied, then this was required. The same approach was taken by him to damaged bins, of which I am satisfied he was well aware, given the continuous interaction between the Council's workers and the bins and him and the users. It is evident, at least from his conversation with the plaintiff, that he was aware there was only one worker on the run. Indeed, I am satisfied that this was well known by the Council's workers, including Mr Pell, given their responsibilities in respect of cleaning, repair and inspection over the years and in all likelihood by Mr Brown from his communications at least with Mr Pell. The contract provided for the work to be done by two workers and a casual. Although Mr Brown might not have recollected this when he gave evidence, it is difficult that he would not have known it at the relevant time. After all, he made a comment about there being two workers in his conversation with the plaintiff 77It was submitted by Mr Walsh that the Council did not have towards the plaintiff the duty of care owed by an employer for an employee. This is correct. But I do not accept the submission that the Council had no duty of care towards the plaintiff, who was emptying its bins, at least to keep the bins in a sufficient state of repair as not to expose him to a foreseeable risk of injury. This involved repair of the bins and cradles which were so damaged as to impede easy removal of the bins, replacing missing handles and not impeding removal by use of screws which caught the bins to attach signs. It maybe that this duty did not require immediate or daily repair of the bins, but certainly the Council should have repaired the bins within a reasonable time of being aware of the damage. I accept the evidence of the plaintiff and Mr Blacklock that bins were left damaged and with missing handles for lengthy periods. 78Furthermore, although in one sense the Council had contracted out of its responsibility for rubbish removal, its active involvement day by day in the performance of that task showed that it had not surrendered its control over it. No doubt it was contractually entitled to ensure that the service for which it had bargained was being carried out appropriately and for this purpose to liaise with Usshers, but this also involved its proper maintenance of the bins, to ensure they were safe to handle as required. Furthermore, its insistence that the bins were to be emptied, in effect, however difficult it was provided it was physically possible to do so, as a matter of fact jointly involved it in the risks of injury to the plaintiff not only caused by the damaged bins but also those which were too heavy to be lifted safely. Mr Brown well knew, generally if not specifically, that the bins were filled by commercial users with rubbish, that could by no means be regarded as litter, of a kind that would probably be very much heavier than, on the exercise of any commonsense judgment, would be safe for one person to lift. This is not a case of hindsight reasoning but an understanding that would or should have been obvious to any responsible person considering the nature of the work. The evident fact that he thought issues of worker safety were entirely the responsibility of Usshers and hence did not trouble himself with the question cannot excuse the Council, given its requirement that the bins were to be emptied, in effect, whatever the situation as to safety and risk. 79It is necessary to consider the application of the Civil Liability Act 2002 (NSW), which provides - 5B General principles (1) A person is not negligent in failing to take precautions against a risk of harm unless: (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and (b) the risk was not insignificant, and (c) in the circumstances, a reasonable person in the person's position would have taken those precautions. (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things): (a) the probability that the harm would occur if care were not taken, (b) the likely seriousness of the harm, (c) the burden of taking precautions to avoid the risk of harm, (d) the social utility of the activity that creates the risk of harm. Mr Walsh, on behalf of the Council, submitted also that the following provisions are applicable - 42 Principles concerning resources, responsibilities etc of public or other authorities The following principles apply in determining whether a public or other authority has a duty of care or has breached a duty of care in proceedings for civil liability to which this Part applies: (a) the functions required to be exercised by the authority are limited by the financial and other resources that are reasonably available to the authority for the purpose of exercising those functions, (b) the general allocation of those resources by the authority is not open to challenge, (c) the functions required to be exercised by the authority are to be determined by reference to the broad range of its activities (and not merely by reference to the matter to which the proceedings relate), (d) the authority may rely on evidence of its compliance with the general procedures and applicable standards for the exercise of its functions as evidence of the proper exercise of its functions in the matter to which the proceedings relate. 43A Proceedings against public or other authorities for the exercise of special statutory powers (1) This section applies to proceedings for civil liability to which this Part applies to the extent that the liability is based on a public or other authority's exercise of, or failure to exercise, a special statutory power conferred on the authority. (2) A special statutory power is a power: (a) that is conferred by or under a statute, and (b) that is of a kind that persons generally are not authorised to exercise without specific statutory authority. (3) For the purposes of any such proceedings, any act or omission involving an exercise of, or failure to exercise, a special statutory power does not give rise to civil liability unless the act or omission was in the circumstances so unreasonable that no authority having the special statutory power in question could properly consider the act or omission to be a reasonable exercise of, or failure to exercise, its power. (4) In the case of a special statutory power of a public or other authority to prohibit or regulate an activity, this section applies in addition to section 44. Although the Act came into effect on 20 March 2002 and thus does not apply to negligence which occurred earlier, it seems to me that s 5B does not materially change the common law. The effect of ss 42 and 43A might be somewhat more problematical. However, it is difficult to see how these sections apply and no submission was made as to the effect they could or should have on conventional reasoning concerning the negligence alleged in this case. 80Mr Walsh submitted, as is quite correct, that the principal will not generally be vicariously liable for the negligence of its independent contractor, citing Sweeney v Boylan Nominees Pty Ltd [2006] HCA 19; (2006) 226 CLR 161; (2006) 227 ALR 46; (2006) 80 ALJR 900 at [7]. It is also correct to submit that the Council was not, in any sense, the plaintiff's employer. However, it was or should have been aware that its deformed bins, bins without two handles, and bins with internal handles presented a hazard to any worker whose job was to lift and empty them. So far as the missing and internal handles are concerned, it is patently obvious that lifting by one handle effectively doubled the strain on the relevant limb and that lifting by internal handles obviously was awkward and destabilising. It was also aware or should have been aware that many of its bins were dangerous to lift simply because of the weight of rubbish that was frequently deposited in them. I accept the plaintiff's evidence that the weight of the commercial waste left in bags around the bins was in the region of 30kgs. It is reasonable to infer that this was frequently the weight of such bags deposited in the bins. The effect of training the plaintiff appropriately would have resulted in his not emptying bins which, on his assessment (informed by that training), presented a risk of injury. Since the Council, through Mr Brown, insisted in effect that all bins were to be emptied unless it was physically impossible to do so, in the knowledge which he had or should have had that this exposed the single worker doing the task to injury, any training about not unloading dangerous weights - had it occurred - would have been immaterial. However, it is not necessary for me to go this far, since I am satisfied that the injury suffered by the plaintiff was mainly contributed to by the deformed and single handled bins of which there is no doubt the Council was well aware and which, despite its acceptance of the responsibility to repair, it left unrepaired for lengthy periods. It is clear that the injury suffered by the plaintiff, from which he never made a full recovery, and which (having regard to the medical evidence which I discuss below) had "knock on effects" rendering his degenerative injuries symptomatic or more seriously symptomatic, was caused by a heavy, deformed bin which had been in that state for a long time. The injuries suffered by the plaintiff resulted from the concerted actions of Usshers and the Council, in the knowledge each had, or should have had, of the foreseeable injury that would likely be suffered by the plaintiff if he lifted the bins which Usshers and the Council jointly required him to lift. 81It is submitted by Mr Walsh that the Council did not dictate how the job of emptying the bins was to be done. This is true, but it did provide a timeframe for the job to be completed and required, in effect, that every bin that could be emptied must be emptied by the end of the shift. 82In my view, the risk that a worker in the position of the plaintiff might be injured by bins that were too heavy or too damaged to lift safely was one of which the Council knew or ought to have known. The risks associated with heavy lifting are notorious, more so when the lifting is repetitive and involves carrying. The risk was significant that serious physical injury might well result. A reasonable person in the position of the Council ought to have taken the precaution of ensuring that bins were promptly repaired and not agreed with Usshers that the bins must be emptied unless it was physically impossible to do so. Since the repair of bins was accepted by the Council as its responsibility, it is unnecessary to consider whether it is unreasonable to require it to do so. The possible delay in repair could have been easily overcome by allowing Usshers not to empty bins judged by its worker as relevantly unsafe. This latter approach would also have overcome the problem - well known as a general risk - that the bins were frequently too heavy for safe handling by one worker. 83Mr Walsh points in particular to the evidence of Mr Adams that adding an additional worker would have substantially reduced the risk and argues that this was a matter entirely for Usshers rather than the Council. Since Mr Brown was aware at all material times that the plaintiff worked alone, this is less than a convincing submission. At all events, I am satisfied that unless the bins were emptied by two workers rather than one - which was never envisaged - the halving of the number of bins to be lifted to 165 or so would not have sufficiently reduced the risk to render the work reasonably safe, having regard to the weights involved. It was also submitted that the changeover to the older vehicle which required a higher lift to empty the bins was beyond the Council's control. This is true, but this was but a small proportion of the total task. I do not think it can be sensibly maintained that, had the truck been changed, this would have significantly reduced the risks of injury. GIO's insurance policies 84As mentioned above, the plaintiff sues GIO in its capacity as the public liability insurer of Usshers Pty Ltd pursuant to s 601AG of the Corporations Act 2001 (Cth), the company having been deregistered in 2008. The crucial question is whether the exclusions in the policy apply so that Usshers could not, had it continued to exist, have made a claim in respect of the plaintiff's action. Since the policy provided that it did not indemnify Usshers in respect of personal injury to any of its employees "arising out of or in the course of their employment", it is agreed that GIO's only possible exposure concerns the potential liability of Usshers to the plaintiff for the period 1 December 2004 to 29 April 2005 when he was not employed by the company but by Solid Waste. As mentioned above, I am satisfied that Usshers, through Ms McBurney, ensured that its contractual obligations were satisfied, although the plaintiff was actually employed by Usshers. If the plaintiff had been "engaged to perform work" on Usshers behalf or for Usshers' "benefit", the exclusion applied only to personal injury to persons (so far as is relevant) - "(a) who are employed by... [an] organisation... whose business is, or includes the supply of labour; and, (i) whose work is performed in whole or part under... [Usshers'] care, control, direction or supervision; or (ii) the personal injury arises directly or indirectly out of or in connection with any defect or deficiency that you knew about or a reasonable person should have known about, in any land, building, structure, fixture, fitting, machinery or plant owned or used by [Usshers] in connection with... [its] business; or (b) ... or (c) engaged to perform work... in connection with any building, structure, machinery or plant at the situation." 85It is submitted that the plaintiff was engaged to perform work on Usshers' behalf or for its benefit since he emptied the bins which were the subject of Usshers' contract with Penrith Council. This however, is an oversimplification. It is clear that the arrangement between Usshers and Solid Waste was a commercial arrangement, one of the features of which was that Usshers paid Solid Waste sufficient to pay the wages of its workers including the plaintiff. The obligation of Solid Waste was to undertake such work in relation to the litter bins as was specified in the contract between Usshers and the Council. The plaintiff was not employed to assist (to attempt a neutral term) Usshers but by Solid Waste to enable it to fulfil its obligations to Usshers which was, for its part, obliged to have the litter bins emptied in accordance with its contract with the Council. The plaintiff was not working for Usshers in any sense. 86Mr McManus for GIO points to sub para (a)(i) concerning the "care, control, direction or supervision" of the plaintiff. It seems to me that the plaintiff was not under the care, control, direction or supervision of Usshers but that Ms McBurney, in controlling and directing his work, was acting as general manager of Solid Waste although, at the same time, she was responsible to Usshers to ensure that Solid Waste emptied the bins which Usshers had contracted with the Council would be emptied. It follows that this subparagraph does not apply. 87Mr McManus then referred to the exclusion under subpara (a)(ii), submitting that either the cradles or the bins were structures within the meaning of this subparagraph and the removal of the bins, on the plaintiff's case giving rise to personal injury, arose at least indirectly or in connection with the defects which have been described, namely the lack of adequate handles and the damage to the cradles or bins where that caused the bins to jam. I think it is clear that a bin is not a structure, fixture, or fitting within the meaning of this clause. Although I do not think a cradle is a structure within the meaning of the clause, given the descending order, as it were, of the items in the list, it might be a fixture or fitting. The only relevant defect would have been damage to the cradle which made it more difficult to remove the bin. Accordingly, in respect of these cradles, it may be that the exclusion applied. However, they comprised, as I understand the evidence, a very minor proportion of the total of damaged cradles which rendered the bins difficult to lift so that the exclusion of liability - on the assumption that a cradle would be a "fixture" or "fitting" - is effectively immaterial. So far as paragraph (c) is concerned, even if the cradles were structures within the meaning of that paragraph, which I do not think is the case (again given the nature of the list) it is clear that removing a bin from the cradle (assuming it to be a structure) is not "performing work in connection with" the cradle. Again, if the damaged cradles contributed to the plaintiff's injuries, this contribution was so slight as to be practically immaterial and I think this exclusion, if applicable, should be ignored. I should mention, in connection with paragraph (a) that it was argued by Mr McManus that Solid Waste's business "[included] the supply of [the plaintiff's] labour". I do not agree with this submission. The paragraph must be understood as a whole. It is true that Solid Waste's business involved the emptying of the bins which it had contracted to undertake with Usshers so that Usshers could, in turn, fulfil its obligations to the Council. However, Solid Waste's business was not the supply of labour; rather it was the emptying of the litter bins for which purpose, of course, labour happened to be necessary. Its business utilised labour but did not supply it. The plaintiff's physical injuries 88So far as previous injuries are concerned, the plaintiff said that he had injured his knee in 1991 whilst skiing and he still had a scar on the side of his right knee from it. In November 1999 he broke his right middle finger and needed to see a hand surgeon for it. It may also be that he may have suffered osteoarthritis in that finger. This was, of course, before he went to work for Usshers. I accept the plaintiff's evidence that he was a very fit and strong man albeit 50 years old at the time he started this employment. Furthermore, he was anxious to obtain and retain his employment. He was prepared to give up his overtime payments to do so. He agreed in cross-examination that within a matter of months of starting work with Usshers he commenced to have pain in his shoulders which worsened in 2003. In March 2002 he had complained to his general practitioner of pain in his neck, elbows and thumbs. He said that this pain got progressively worse, though it was mostly about his shoulders at that time. Although he said he was certain he complained to Dr Obeidulla just about his shoulders, it is obvious from the medical notes that this was not so. I think he was simply confused about the history of his complaints. At all events, he suffered from shoulder pain of greater or lesser intensity and frequency from March 2002 which got steadily worse. In 2004 he suffered from pain in his knees, elbows and shoulders on every shift, the shoulder pain seeming to spread to his neck, and he began to notice pain in his back. He said that he had told Thomas Ussher about it when he went out with him on his run saying "I am having trouble" and told him about how he found the job hard and was experiencing pains in areas he had never had before. He was unsure when this occurred. In December 2003 he saw his general practitioner about shoulder pain. Though the note of the doctor is about the right shoulder, the plaintiff said he was under the impression it was both shoulders about which he spoke to the doctor. The condition, he said, was getting progressively worse and continued to do so until the incident on 29 November 2004. He said in cross-examination that he had two injuries on the same shift quite often and perhaps 10 or 15 per cent of the bins caused him injuries. It is somewhat unclear what he meant by this. I think he meant that these bins caused specific pain when he manipulated them. I should mention that when he was unable to undertake the run anymore on this basis, he said, that Dr Obeidulla had arranged some light duties which, as he understood it, would have involved him staying in the office and doing work there. The duty he was given was to walk his route over a three week period and make notes of all the defective bins. He was given a camera and a notepad for this. He said that he did this for the first day but was in a state of collapse when he got to Penrith. He said that he had been carrying a backpack in which he had placed a flask of coffee and his lunch together with the camera and a clipboard. He said that it was the walking all that way and carrying the backpack that caused him to nearly collapse. He walked about four or five kilometres before he was forced to stop. He agreed that walking around with a clipboard and carrying lunch on his back was much lighter work than that which he had previously done and said it surprised him that he was unable to complete the task. When he was given the work at the beginning of the day he thought he could do it without difficulty but found he could not. On further questioning, it appeared that he simply stopped because it was a very hot day and he had not brought a hat because he had not expected to be out in the sun. He accepted that his inability to undertake the task was not really because of his injuries. 89The plaintiff's case is that he suffered a frank injury on 29 November 2004, constituting tendon muscle damage in the right elbow, left shoulder and neck. A radiological report of 11 April 2005 showed moderate osteoarthritic changes in the glenohumeral joint and mild osteoarthritic changes at the acromio-clavicular joints. No soft tissue calcification or other abnormality was noted. However, an ultrasound showed a suggestion of a partial thickness tear in respect of the left bicep's tendon, the right bicep's tendon showed thickening, suggesting tenosynovitis (an inflammatory process). The supraspinatus tendon was torn at the anterior aspect. There was a calcified focus at the subscapularis tendon, probably due to calcific tendonitis. There was mild to moderate impingement of the supraspinatus tendon on abduction of the shoulder. There was a suspicion of right supraspinatus tendonitis. A CAT scan performed on 12 May 2005 showed a mild narrowing at C2/3 of the right neural exit foramen due to moderate to severe right facet joint degeneration and moderate uncovertebral joint degeneration. Other degeneration was evident at the C3/4 level with minimal degenerative changes at C4/5 and moderate to severe degeneration at C5/6 and C5/7, with facet joint degeneration at C7/T1. 90The history taken by Dr Giblin, an orthopaedic specialist, when he first saw him on 24 August 2006 was that the plaintiff first noted pain in both his shoulder and knees in early 2004, and described a severe lancinating pain from his left shoulder radiating down his arm as a result of jerking forcefully to remove a bin on 29 November 2004. The plaintiff told Dr Giblin that, in terms of his neck and back, left leg and both arms he had no previous history of symptoms or injuries. Despite this history, the plaintiff's general practitioner noted that the plaintiff had attended with pain in his right shoulder on and off for two to three years indeed, having a problem wearing the seatbelt in his truck. It was his left shoulder which was injured on 29 November 2004. This suggests perhaps some confusion in Dr Giblin's reporting of the history. 91The plaintiff had surgery on his right shoulder on 29 June 2005 and on his left shoulder three months later. He described his symptoms to Dr Giblin as a constant ache with sharp stabbing pains, burning and pins and needles, related to physical activities. Dr Giblin provisionally diagnosed the plaintiff as having a soft tissue injury to his other limbs, cervical and lumbar spine and knees, reasonably and causally related to the nature and conditions of his work environment as being a substantial contributing factor. In short, Dr Giblin considered there was evidence of a shoulder injury and, although his neck may have been causing pain, he thought there was a contribution from the shoulder. 92At the conclave, Dr Smith and Dr Giblin differed as to the cause of the demonstrated injury. Dr Smith suggested that it was likely that neither shoulder was injured under the circumstances of 29 November 2004 whilst Dr Giblin believed it was possible that both shoulders were injured on that occasion whilst agreeing that there were pre-existing asymptomatic age related changes in the cervical spine and shoulders. Dr Smith's view of the incident on 29 November 2004 is that he suffered an aggravation to his glenohumeral arthritic change which would have produced symptoms of pain in the shoulder. He said it was difficult to conceive how he could have returned to his normal job emptying 536 bins a day if he had anything major in the way of an injury on 29 November 2004. Dr Smith thought that the deterioration of symptoms without any accident or explicit injury when he was complaining primarily about his neck showed his shoulder pain was referred from the neck. However, Dr Smith noted that the ultrasounds demonstrated rotator cuff problems. (I do not think that Dr Smith satisfactorily deals with the pain suffered by the plaintiff, but it is evident from his report that he regarded the plaintiff as exaggerating his symptoms and deliberately malingering.) 93Both Dr Smith and Dr Giblin agreed that the plaintiff continues to experience ongoing soft tissue symptoms from the date of injury consequent to cervical degenerative disease, rotator cuff problems, lateral epicondylitis, likely bilateral thumb base arthritis, osteoarthritis of the knees and lumbar spine. Dr Giblin believes that a component of these symptoms is injury related, although it is clear that Dr Smith is of the opposite opinion. When one has regard to the evidence of Mr Adams about the risks of the work being undertaken by the plaintiff, together with the injuries noted on the ultrasound (which Dr Smith does not, in my opinion, adequately explain), I am satisfied that indeed the plaintiff suffered a frank injury on 29 November 2004 which exacerbated his situation so that, as he continued to work, he became less and less able to do it without disabling pain. Although it is true that he suffered previous degenerative changes I think it most improbable that the forces continually applied to his shoulder back and neck in excess, at times well in excess, of safe limits was immaterial to, at the very least, increased symptoms of pain, if not actual aggravation of the osteoarthritic changes. 94Generally, Dr Smith thinks that the plaintiff is not "as disabled as he makes out he is... [and] is manufacturing physical signs." I do not accept Dr Smith's opinion in this regard. I prefer Dr Giblin's view and indeed my own judgment of the plaintiff's credibility. It followed that Dr Smith did not think he needed any domestic assistance. In my view, as stated by Dr Giblin, the plaintiff is moderately restricted in lifting, standing and sitting and requires prescription medication to help him sleep at night. His symptoms are aggravated by physical activities. 95Dr Seamus Dalton, a consultant in rehabilitation medicine retained by the defendants, concluded - "In summary, I consider that this man had evidence of pre-existing glenohumeral joint disease and rotator cuff tendinopathy with tears affecting both shoulders. That pathology was rendered symptomatic as a result of his work duties at the time with a specific incident in November 2004 aggravating his left shoulder. One can certainly debate whether or not Mr Healey would have benefited from a more comprehensive trial of non-operative treatment before undergoing shoulder surgery... but clearly he had no trial of physiotherapy or injections into the shoulder prior to proceeding with the surgery. There is therefore some basis to conclude that Mr Healey injured his left shoulder as a result of his work duties in November 2004. It is debatable whether there had been symptomatic aggravation of his right shoulder as a result of the repetitive nature of his work duties at that time but, having regard to the reports of Dr Kuo [who operated on his shoulders] and Dr Obeidulla it is my view that this man did not suffer an acute rotator cuff tear as a result of his work duties but rather suffered symptomatic aggravation of an underlying degenerative rotator cuff tendinopathy. There was therefore a work related aggravation of the pre-existing condition, but that incident precipitated the need for further treatment which ultimately resulted in the left shoulder surgery performed by Dr Kuo. The relationship between his right shoulder symptoms is more tenuous and one can certainly debate whether or not the surgery... was reasonably necessary at that time given that this man had not had an adequate trial of conservative treatment." The doctor went on to comment - "Unfortunately, the course of events subsequent to... [the injury to the left shoulder in the incident in November 2004] complicated the clinical picture, particularly given that this man underwent surgery to both shoulders and then developed more widespread chronic pain with features of an adjustment disorder." 96It should be noted that it is not disputed that, in April 2005, the plaintiff presented with worsening bilateral shoulder, neck and knee pain. Dr Clive Sun was of the opinion that the clinical picture presented by the plaintiff is consistent with occupational related injury to his neck, upper back and both arms due the nature and conditions of his employment. He thought that the clinical picture was consistent with cervico-thoraco-lumbar impairment, bilateral shoulder soft tissue injury and left knee patello- femoral impairment due to the nature and conditions of his employment. The rehabilitation experts agree that the plaintiff has an underlying degenerative condition and that the condition was aggravated by the nature and conditions of his work. However, there is some difference as to whether this was a mere aggravation or whether a frank injury had occurred. They agree that the plaintiff is capable of performing light semi-sedentary work of 30 to 40 hours per week provided he avoids strenuous manual handling repetitive overhead work and can sit or stand as required. Dr Dalton's suggestion of taxi or courier work underestimates the degree of heavy lifting involved. 97Mr Walsh for the Council and Mr Ussher concedes that the plaintiff sustained an injury to his left shoulder at least on 29 November 2004 which was likely a rotator cuff tear, for which he underwent surgical repair on 29 June 2005. He underwent surgery to his right shoulder on 28 September 2005 and improvement was reported. Functionally, it appears that the plaintiff has retained reasonably normal upper and lower limb function and a significant degree of shoulder function, to which the doctors have referred. Video surveillance showing the plaintiff on 21 April 2013 picking up several lengthy (perhaps two metres or so long) pieces of timber from a local recycled building materials business, pushing them over a steel mesh fence and then loading them onto a trailer confirms this opinion. The plaintiff agreed that he picks up timber about once a month. These are off-cuts used for fuel for the fire at home. Generally the owner of the business fills up a trailer which is left there by the plaintiff and the plaintiff then brings the trailer home. He takes the timber from the trailer as it is needed. Sometimes the plaintiff assists to load the timber but he has never filled the whole trailer by himself. Sometimes this task takes about two hours but, as I gather, it is relatively leisurely as they are chatting whilst doing this. The plaintiff explained that he could manhandle this piece because this and many of the others were eaten away by white ants. He said that he cannot load the trailer without difficulty and pain: "It's a pain that creeps up on you at the end of the day". He cuts the longer pieces of timber with an electric saw which he can use for a limited time, doing this outside on the trailer. He said it was "just a little handsaw that he bought from Aldi". I accept the plaintiff's evidence about this matter. There is, of course, an important distinction to be made between mechanical function and limitations resulting from pain. However, the latter can be just as, perhaps more, disabling and, moreover, adversely affects other aspects of life: chronic pain has a major effect on much more than the mere physical ability to do tasks. 98Taking into account the somewhat confused histories given by the plaintiff (as to which he was not really tested) and bearing in mind the degenerative changes noted, especially in 2005, I think it likely that he was suffering from those degenerative changes, to a greater or lesser extent, over the entire period of his employment. However, given that the plaintiff was asymptomatic when he commenced employment, that it was some time before he became symptomatic, the pain which I do not doubt he suffered increasingly especially at the end of each shift, and the nature and conditions of his work which were very likely to cause injury and exacerbate any degenerative condition from which he was already suffering, I conclude that the substantial cause of his being unable to work after April 2005 and undertake any physical work since that time was the injury suffered on 29 November 2004 and the aggravation of his degenerative condition. If there is a relevant distinction, the developing symptomatology as a result of the impact of his work on his degenerative condition, which has continued to the present time and will continue into the future, has been substantially contributed to by the nature and conditions of his work for Usshers since its commencement, for which, one way or another, the defendants are all responsible. 99There is no doubt that, so far as the plaintiff's physical condition is concerned, he was incapable of returning to his pre-injury work as a refuse collector. Both the orthopaedic experts agreed that the plaintiff would be fit for sedentary work provided he avoided repetitive bending, lifting and twisting, using his upper extremities for repetitious pushing, pulling, lifting, twisting, load bearing, operating heavy machineries or activities at or above shoulder height and was restricted from using his lower extremities for repetitious kneeling and squatting, pivoting and twisting or working in confined spaces or at heights. From an orthopaedic point of view, the doctors agreed that the plaintiff would be fit to work in a sedentary environment avoiding these restrictions to the age of 67. The likely prognosis of the plaintiff's physical condition, both doctors agreed, is a slow progressive deterioration manifested by exacerbations and remissions of the symptoms and an increased susceptibility to repeat material damage. Whatever the aetiology of his condition, some medication will be required for this situation. The plaintiff could benefit from medical treatment of a conservative, symptomatic and supportive character, but Dr Smith thought surgical or operative treatment would be unnecessary, whilst Dr Giblin considered that it may be necessary to consider surgical intervention such as a total knee or shoulder replacement in the future. It is agreed, of course, that a total knee replacement would be completely unrelated to any injury suffered because of the relevant employment. A total shoulder replacement would cost about $20,000 barring complications. 100The rehabilitation experts, Dr Dalton and Dr Sun, agreed that the plaintiff could not return to work as a refuse collector, but that he was capable of performing light manual semi-sedentary work with a lifting restriction, broadly speaking in agreement with the orthopaedic medicine. They agreed that ongoing medication as a consequence of the nature and conditions of the plaintiff's work or the injury on 29 November 2004 was not necessary. Dr Sun considered that the plaintiff might require physiotherapy for symptomatic aggravation of his condition up to a maximum of five times a year and Dr Dalton thought that he might require physiotherapy for symptomatic aggravation to his left shoulder in the future (some contribution of which arising from the nature and conditions of his work and the injuries sustained on 29 November 2004); the likely cost for such treatment would be about $80 per consultation on a needs basis. Neither doctor thought there would be a need to undergo operative treatment. The doctors agreed that the plaintiff required four hours assistance a fortnight with domestic duties, heavy housework, home maintenance and gardening but, as is evident, they disagree as to the extent to which that need arises as a consequence of the work injuries as opposed to unrelated degenerative changes. Psychological injury 101Regrettably, the plaintiff has developed a recognised psychiatric disorder. The medical specialists asked to confer in order to prepare a joint report in respect of this aspect regrettably were unable to agree as to its nature and extent. Dr Champion was of the view that the plaintiff had developed an adjustment disorder as a reaction to many stresses, including those arising from his work related injuries, which had resolved progressively as he adjusted to his altered circumstances and concluded that he no longer suffers any significant psychiatric disorder. Dr Clark, however, found that the plaintiff was still affected, withdrawn and antisocial, hating reminders of the accident and becoming avoidant and antisocial. Dr Clark thought that the plaintiff suffered a dysthymia described by Dr Clark as "an insidious developing depression". It is pathologically chronic. Both doctors noted that physical and emotional reactions to trauma are not separable. Dr Champion noted, and gave significant emphasis to personal losses which the plaintiff had suffered, particularly the death of his four children from his first marriage, of whom the last surviving daughter contracted a life threatening disorder in 2005 which progressed through a lung transplant to her death in 2009. He had been particularly close to his daughter and had described to Dr Champion a significant emotional response consistent, the doctor thought, with an adjustment disorder with depressed mood or pathological grief reaction. His second marriage also broke down, the plaintiff attributing this to his inability to function normally, domestically or occupationally following the onset of his pain problems. His sister in Canada also died in 2005. Dr Champion considered, in my view reasonably, that taken altogether the plaintiff had experienced a pattern of very significant psychosocial impacts affecting him at a time "when it seems likely he had been overtaken by the development of chronic constitutional degenerative orthopaedic problems". Of course, Dr Champion is not an orthopaedic specialist and I do not read this opinion as a conclusion as to the cause of his pain. In short, it seems to me that, whilst Dr Champion gives considerable significance to the other psychological issues arising from the vicissitudes of the plaintiff's life aside from those involving his loss of employment and pain, he regarded this as exacerbating the adjustment disorder primarily due to the other factors, ultimately concluding that the plaintiff's psychological/psychiatric symptoms were not attributable to the workplace accident. The difficulty I have with this conclusion is twofold: first, the mere fact that the plaintiff was already suffering from a difficulty in relation to his mental or emotional state at the time he stopped work cannot of itself lead to the conclusion that the pain associated with the reasons that he left work (however it was caused) was inconsequential or trivial with respect to his psychological condition, in respect of which being forced to leave work must have been very significant; secondly, although I accept there was a significant degenerative element in his inability to work and as a cause of his not inconsiderable pain, I am satisfied that a substantial contributing factor was accumulating trauma as a result of inappropriate lifting and carrying of relatively heavy loads which has also resulted in making previously asymptomatic degenerative changes symptomatic, a contribution which is now inextricably a part of the overall position and therefore continuing to make a substantial contribution to it. I therefore do not accept the probable correctness of Dr Champion's conclusion that the plaintiff's psychiatric condition is not at all attributable to his accident. On the contrary, I consider that it is a very significant contributor to it, both because it resulted in an exacerbation of his symptoms and, together with the ensuing problems, led to his being unable to work. His loss of the ability to work as well as continuing disabling pain is a major contributor to what I accept is his continuing depression. 102In the result, although Dr Champion thought that the plaintiff's condition had needed care as it was a chronic adjustment disorder, he thought this was not permanent and appeared to have resolved progressively as he adjusted to his altered circumstances. On the other hand, Dr Clark considered the plaintiff to be chronically depressed, with a poor prognosis given his continuing physical problems and should be attending for supportive psychotherapy. Neither doctor thought that the plaintiff required assistance with domestic chores from a psychiatric perspective. So far as the plaintiff's fitness for work is concerned, Dr Champion, for obvious reasons, thought he was fit for other employment from a psychiatric viewpoint. On the other hand, Dr Clark thought he could pursue his computer interests but would be unlikely to be employed in that field. Domestic care 103The plaintiff was married when he stopped work. The plaintiff says, in substance (and I accept), that the pain and disability that he suffered with anxiety, depression and financial problems were a strain on the marriage and ultimately his wife left him in October 2008. He married again in December 2011. 104The plaintiff's house has three bedrooms on a just short of an acre block with five gardens which are extensive. When the plaintiff left work he found that he could not look after his home or the garden. Although I accept that this evidence is in general terms, it justifies the inference - together with my own view of his fitness - that he was unable to undertake many of the ordinary domestic and maintenance tasks, although of course when he was alone he must have done what was necessary to prepare his meals and so on. He said that, before his marriage broke down, his ex-wife assisted with housework and afterwards his son in law and friends helped him. He says before he was injured, because he worked the night shift, he used to do a lot of the housework himself and prepared the evening meals, doing at least two hours a day. He also did the gardening and all of the home maintenance. Following the injury he could not manage home maintenance or the garden although he had occasional help from his son in law and other friends. He said that he had a friend who worked six to eight hours a week in the garden and two friends who help him with housework, each providing about six hours per fortnight of assistance with housework and shopping. This information was contained in a statement of 9 September 2011 and appeared to be the position at that time. However, as I accept that his physical condition, at least, had not improved since he left work, I infer that this level of assistance would have been necessary when he was with his wife and since 2008. In cross-examination the plaintiff agreed that he tried to keep himself active after he left work. He coached an over 18's soccer team between November 2006 and April 2007, but only managed to make it to one game because he could not carry on with the work involved. He undertook volunteer work at Lifeline, he thought in 2010 for one morning a week for two hours, assisting in the Op Shop. This lasted about eight months. It involved standing at the counter and speaking to people coming into the shop and sometimes helping them with what they wanted to drop off or purchase. He would occasionally have to lift some items of clothing from out in the storeroom and hang them on the racks. He said that he was happy about doing this; he felt he was making a contribution. 105The plaintiff undertook volunteer childcare through Anglicare but, as it turned out, only helped once because he was asked to care for a young boy who was autistic and unmanageable, whose parents needed respite. He was then in his current relationship, taking care also of his wife's autistic son. As he put it, he found himself going from caring for no children to suddenly being thrust into a position where he was accountable for two autistic children and found it too challenging. He only looked after the other child on one occasion. He helps his partner look after her son, with whom he has become very involved. He sits in with him for piano lessons which he makes sure he undertakes. He sits in with him on his exercise programs which he needs to supervise. These occur every day. He reads a lot with the child and, although they all go out together, he could not remember a time when he had taken the child out on his own. His wife does not work, so that she is always around when the child needs care and supervision. He has taken the child to church on his own quite often. He sees his grandson about every six weeks when he comes to visit and looks after him for about six hours on those occasions. As at the time of trial this child was seven or eight years of age. He is able to prepare meals for him and does so. His grandson and his partner's son enjoy playing together and he supervises them. Occasionally he has taken his partner's son to school and picked him up, but mostly he uses the bus. 106The plaintiff said that, when he married his current wife, he would have liked to share the housework on a 50/50 basis if he could have done so and would have expected to be able to maintain his own garden. He could have cooked, polished his shoes, pressed his suits and trousers, washed his own hair, vacuumed and the like. He explained that his wife had health concerns (not necessary for present purposes to describe) but it has affected her walking because of vertigo and her lack of co-ordination. He said that, were he uninjured, he would probably take on the major role in housekeeping and help take care of his wife if he could. He only has very little capacity for gardening, but goes around with his wife "on a supervisory capacity". He agreed that, on a good day, he could do somewhat more than that in the garden and actually do the weeding himself. He could not recollect having swept or raked but he was sure he could handle it, if need be. He was asked whether he could now do the ordinary household chores of housework, cooking, vacuuming, mopping, sweeping and cleaning if he had no pain. He has been taking painkillers and indeed had taken some for the purposes of the proceedings. I think it was for this reason that he said that "right now" he could undertake those tasks. However, he needs to wean himself off that kind of medication, to which in the past he had become addicted. He said, as far as work was concerned, he does not think he could do a full week's work of any kind because he is too worried that he might hurt himself further. 107Mrs Healey gave evidence, broadly speaking, supporting that of the plaintiff in respect of the domestic chores. She estimated that she performed about 3 ½ hours a day of domestic tasks which the plaintiff could perform were it not for his injuries. However, in her evidence, this was shown to be an over-estimation. Because of her son's allergy, it is necessary for the house to be vacuumed and dusted each day. As I understand it, this is also the reason that all towels and clothes are washed daily. They do not have a dryer, so the washing needs to be hung on the line. Otherwise, the other household tasks are those which one would normally expect. I would accept that those which involve any significant bending or lifting are painful and difficult for the plaintiff as well as such activities as gardening, raking and window-washing, shopping for weekly needs and home maintenance. 108Dr Sun and Dr Dalton agreed that the plaintiff requires at most four hours assistance a fortnight with domestic duties, heavy housework, home maintenance and gardening. 109This question is one which requires a sensible, commonsense judgment about the realities of domestic life which are, of course, not matters of medical expertise but, in the end, probably largely depend on the experience and understanding of the fact-finder. The substratum of physical disability is, on the other hand, very much within the expertise of the doctors. In this case, one must attempt to appreciate the functional as well as the pain-driven limitations, bearing in mind that we react to pain in different degrees. Over the range of domestic tasks, I think it fair to assess the plaintiff's need as about an hour a day across the range of necessary tasks. This covers a period of longer than six months. Summary 110There is no doubt that the plaintiff has serious degenerative changes in his shoulders, neck and back which cause restrictions to some degree and considerable chronic pain which worsens on use which causes some strain. I have accepted that his work, especially the painful lift he performed on 29 November 2004 and the lifting and carrying which continued until he could work no longer, significantly contributed to those changes, considered as a whole. A far more difficult question is whether those changes, not aggravated, would have become symptomatic at all events and eventually result in his present condition. I accept the opinion of Dr Giblin that a component of his present disability is injury related. Given the time that has now elapsed it seems reasonable to infer that this will continue to be the case. In short, whilst accepting the possibility that, as it were, the plaintiff's degenerative problems might "take over", I believe this is unlikely. As the plaintiff grows older, the usual vicissitudes of health and well-being will no doubt impinge increasingly on him and with greater effect because of his degenerative problems. However, I am unable to accept that the contribution to that condition made by the nature and conditions of his work simply disappears or withers into irrelevance. Conclusion 111The plaintiff was born on 27 December 1948 and is now 65 years of age. The combination of the plaintiff's physical and psychological conditions renders him incapable of work except for only a few hours a day without significant lifting or bending. Taking his physical condition alone, he might be able to undertake sedentary work, say using computer skills, but the additional problem of his psychological state would make it difficult for him to maintain steady work for any significant period. As a practical matter, he has been incapacitated for work since he left Usshers' employment and will be incapacitated into the future. 112I assess non-economic loss at $150,000. 113Past out-of-pocket expenses are agreed at $71,348. 114As a buffer for future out-of-pocket expenses for medication and occasional physiotherapy and the risk of shoulder replacement: $35,000. 115There is a debate about past economic loss. The defendants submit that only two years' earnings should be allowed on the ground that the plaintiff would have been unlikely to continue working as a garbage collector past 1 July 2007 given his underlying degenerative condition and that the manual work was likely to have aggravated this injury. Furthermore, the Penrith litter bin contract was not continued beyond 2007 and Usshers and Solid Waste were wound up. However, absent the results of the defendants' negligence, I am satisfied the plaintiff would have worked on in some occupation that involved some manual labour if he could have done so, though perhaps not as a garbage collector. Some allowance for the possibility that he might not have been able to do so should be made. I accept, however, that he would, in all probability, have retired when he reached 65 years of age. Accordingly the period of past earnings loss starts on 13 May 2005 and ends on 26 December 2013. In my view, the calculation proposed by Mr Liddon SC, which uses the ratio between average weekly earnings and the plaintiff's wages to calculate an average sum over the period is appropriate. Thus, the plaintiff was earning about $1,000 a week net or 118% of average weekly earnings at the time. Average weekly earnings as at trial were $1,160 per week. Applying a multiplier of 118% yields an average of $1,184. The result is that past wages loss from 1 May 2005 to 26 December 2013 (454 weeks) is $537,536. It is not disputed he earned $15,360 as a truck driver in the year ended 2007. This amount must be deducted. 116Given my view of the likely retirement of the plaintiff, there is no allowance for loss of future earnings. 117Past gratuitous care is allowed at 7 hours a week for 6 years at $24 per hour, yielding $52,416. 118Future gratuitous [this was a mistaken expression: "commercial" was intended - see the subsequent judgment] care is allowed at 7 hours per week for 19.3 years. Loss of superannuation for past earnings must be allowed together with the Fox v Wood component. 119It is necessary to consider the effect of s 151Z(2) of the Workers Compensation Act, which requires a notional apportionment of responsibility. It is submitted for the defendants that, in light of Usshers' responsibility for the system of work, the number of workers on the run, the plaintiff's hours of work and the facts that the Council had no responsibility for these matters and repaired unserviceable bins when notified of them and emptying bins too heavy to lift when it was informed of them, a notional apportionment of 75% to the employer is appropriate. This understates the responsibility of the Council. It did not repair unserviceable bins when it knew of them. It insisted on the performance by the plaintiff of the run, knowing he was alone, requiring the emptying of bins it knew or ought to have known exposed the plaintiff to a risk of injury and generally was aware of the fact of heavy bins which the plaintiff ought not to have been required to lift. I assess the responsibility of the Council at 50%. 120So far as GIO is concerned, it is submitted by Mr McManus on its behalf that I should act on the basis of Dr Giblin's opinion attributing 80% of the plaintiff's impairment as attributable to the incident of 29 November, 15% due to the nature and conditions of his work from 1 December 2004 and 5% to 12 May 2005. It is suggested there was no evidence of continuing injury after 1 December 2004. Given the repetitive and continuing strains caused by the nature and conditions of the plaintiff's work up to the time he could work no longer, I reject the latter submission. I agree that Dr Giblin's opinion is material to the issue of apportionment, but I do not accept the contended for consequence, namely that 92% of the injury to the plaintiff occurred prior to his commencement of employment with Solid Waste. This is to attribute to the period following 29 November insufficient significance to the plaintiff's continuing to work unsafely when he had suffered a substantial injury, which is not a purely medical question. So far as causation is concerned, I would attribute to the period the plaintiff worked for Solid Waste 15% responsibility, arising from its requiring him to work dangerously when he was already significantly injured. 121I direct the parties to bring in draft orders relating to the calculation of future gratuitous care, loss of superannuation, Fox v Wood, and in relation to the apportionment required by s 151Z and costs. In the absence of agreement on any aspect, further submissions will be received and, if necessary, a further hearing conducted.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 December 2014