(2001) 25 NSWCCR 218
March v E & MH Stramare Pty Ltd (1991) 171 CLR 506
[1991] HCA 12
Podrebersek v Australian Iron Steel Pty Ltd [1985] HCA 34
(1985) 59 ALJR 497
Source
Original judgment source is linked above.
Catchwords
(2001) 52 NSWLR 205(2001) 25 NSWCCR 218
March v E & MH Stramare Pty Ltd (1991) 171 CLR 506[1991] HCA 12
Podrebersek v Australian Iron Steel Pty Ltd [1985] HCA 34(1985) 59 ALJR 497
Judgment (2 paragraphs)
[1]
Judgment
HIS HONOUR: This is a claim for work injury damages. The first six paragraphs of the statement of claim have been admitted by the defence. Those paragraphs are these:
"1. The defendant is a body corporate established by the Thoroughbred Racing Act 1996 (NSW).
2. The defendant is duly incorporated pursuant to the provisions of the Corporations Act 2001 (Cth) and is entitled to be sued in said name.
3. At all material times the plaintiff was an employee of the defendant.
4. At all material times the defendant was under a duty of care to the plaintiff to take reasonable care for his safety.
5. The plaintiff commenced his employment with the defendant in 2003.
6. The plaintiff's employment duties including accessing a downstairs cellar and cool room by way of walking down the rear stairs of the Winning Post Function Centre ('the Centre') at the defendant's premises to retrieve food and drink for patrons attending a function at the Centre ('the work')."
The plaintiff commenced his employment with the defendant in late September 2003. He was employed as the manager of the Winning Post Function Centre at the defendant's racecourse near Taree. When he commenced working there he was working 15 hours per week as the defendant had engaged caterers. However, when the caterers ceased to be used by the defendant, the plaintiff's hours increased initially to 20 hours per week and then to 25 hours per week. Additionally, the plaintiff sometimes worked more than 25 hours per week. The description of the plaintiff's work given in chief was brief. The plaintiff said that his job was a, "Hands on job." There were a large number of functions for weddings and the like, as well as on race-days. There were deliveries to be received and stored and he mentioned, in particular, refrigerators needing to be stocked with things such as alcohol and soft drinks. The only permanent employees were the chief executive officer, the course curator and the course curator's apprentice. He generally worked 25 hours per week and used other staff who were casually employed and were on call.
In cross-examination the nature of the plaintiff's duties was expanded. He was required to arrange money floats. He was required arrange for security to be engaged when the function centre was opening and when the function centre was closing, and for the presence of security officers generally at the racecourse during functions. In the function centre it was his duty to arrange for music, photography, and floral arrangements. He was required to check stock in the bars and had to roster on the bar staff to operate the bars when the function centre was open. He was required to prepare a running sheet to work out the time when the function centre was to be accessible for preparations for a function. He needed to do that by liaising with the client of the club, obviously the person who had arranged the function, if that were not the defendant itself. When there were private functions involved it was his duty to arrange seating plans in concert with the client, and it was also his duty to arrange where the stage was to be, and the lectern, and other fittings in the function room depending, clearly, on the type of function. It was also his duty to ensure that all, "Technical facilities", were operating by which I assume is meant things such as lighting, air conditioning and amplification, and other sound systems. He was required to oversee and manage the bar staff. He would also have to arrange and oversee cleaners to clean up after an event. Before the commencement of any function it was his duty to ensure that everything had been arranged in accordance with the client's instructions. Antecedent to arranging a function it was his duty also to ensure that the function centre was an appropriate venue for the function to be held. Another of his duties was to prepare a "Run sheet", which was a list of instructions to be given to the function staff as to how the function was to be presented. That would probably, I suspect, have indicated when there was to be quiet for the making of a speech or the giving of toasts and the like, and when music was or was not to be played, and cinema matters.
It was also his duty to oversee the payment to the defendant for the provision of the function. It was the plaintiff's duty to send an invoice to the client, and if there were cash takings, to do a reconciliation and to bank cash takings. The plaintiff also found it necessary to deal with any correspondence that preceded or ensued from the holding of a function. Another of his duties was to make a list of any matters requiring maintenance in the operation of the function centre, no doubt, if there were defective tables or chairs, or a malfunction in some operation of the bar or the kitchen, or any defect in the premises requiring rectification. At the end of each night it was also the plaintiff's duty to ensure that the cellars containing the supply of beer, wine, spirits, and soft drinks were secured so that there could be no theft or pilfering of such property belonging to the defendant. The only keys to the cellar were held by himself, the chief executive officer, and certain members of the board. It was the plaintiff's role to check that the cellars were closed up after each function as normally the CEO and board members would not be present at private functions.
Despite being cross-examined to the contrary, the plaintiff maintained that his work did involve some heavy lifting and labouring as he, at least assisted with the packing away of product that was delivered to the function room or to the racecourse, including kegs of beer and cartons of wine, spirits, and soft drinks. He conceded, however, that he was a manager and was in a position to delegate a large amount of work if he could.
The function room at the defendant's racecourse was on the first floor. Beneath it was a breezeway, although, the inference to be drawn from photograph 3 in exhibit U was that not the whole of the area beneath the function room was a breezeway as part of it must have allowed access from the ground floor to the function room, and the photograph shows how the breezeway is obstructed in its front part, photograph 3 being taken from the rear. Not from the back but from a side of the function room is a staircase leading to the ground floor and debouching near the breezeway. That staircase is shown in photograph 4 in exhibit U. That shows this emergency or fire exit staircase leading from the side of the function centre, down to an intermediate landing, and then a second stairway leading in the opposite direction to the first stairway, debouching on the ground level near the breezeway. The same staircase is seen in photograph 6. Photograph 6, in addition, shows that if one ascends the staircase one arrives at the side door of the function centre, but the stairway then continues upward to an observation tower overlooking the racecourse.
Photograph 6 is a photograph of a square light fitting which is above the side entrance door to the function room, but merely looking at exhibit 6 that light fitting appears to be about 2 metres or more above the top of the door. The amount of light shed by this square light fitting does not, on the evidence before me, appear to have been particularly great. That is, the only external light fitting near the staircase which might illuminate the staircase artificially at night, its two sets of stairs leading from the side entrance of the function centre, down to the ground level and to the breezeway. The breezeway itself is illuminated by fluorescent lights. Those fluorescent lights can be seen in the two photographs which are marked 10 in exhibit U. The plaintiff has circled, on the top photograph in exhibit 10, the switch which turns on and turns off the fluorescent lights in the breezeway. That switch can be operated by anybody near it including not only staff but guests, visitors, patrons, and, if one wanted to, a trespasser. According to a caption on exhibit 3 the distance between the staircase to the light switch is, "approximately 13 metres." The plaintiff estimated that it was about ten metres but conceded it could be 13 metres.
The plaintiff's cause of action is alleged to have arisen on 18 September 2009. The relevant part of the pleading is this;
"9. On 18 September 2009, in the course of his employment with the defendant, the plaintiff was walking down the rear stairs of the Centre at the defendant's premises to mop the downstairs cellar and cool room.
10. On 18 September 2009 the only light switch controlling exterior lighting to the stairs had already been switched off.
11. The plaintiff missed a step in the darkness and fell on the inadequately lit stairs, landing on his bottom.
12. The plaintiff sustained injuries as a result."
The injury alleged is a discal prolapse at the lumbosacral level with compression of the L5 nerve root. 18 September 2009 was a Friday. There was a private function held that evening. The plaintiff believed that it was a wedding. The function went from 4pm to 11pm. The staff are not permitted to work beyond midnight as if they did work beyond midnight they would have to be paid "Sunday rates," which I assume meant double time. The bar was closed at 11pm. When the bar closes guests are invited to leave and staff commence the process of cleaning up and locking up. At a, "bit after 11," PM the plaintiff needed to leave the function room to go to the cellar and cool room, to lock up the cellar and cool room. He did so by walking down the staircase from the side entrance of the function room to the breezeway because the cellar and cool room were accessible from the breezeway.
The plaintiff gave this piece of evidence as to the lighting of the staircase:
"Q. What - can you make any comment about the lighting on the stairs as at 11 o'clock on 18 September 2009?
A. The lighting is always dull on the stairs and light with the small light above the door, when you open the door, the lights of the function centre do flood out to light up that landing a bit better, but it's a self-closing door, a self-locking door, so that after you come out the door automatically closes which takes that light that does shine out through there.…
Q. Therefore, what is the source of any illumination on the stairs?
A. Only the light that's above the door.
Q. On 18 September 2009, when you were walking down the rear stairs, were the fluorescent lights in the breezeway on or off?
A. I believe that they were off. It was reasonably dark."
It has been submitted that this amounts to reconstruction. Learned counsel for the defendant asked me to read that last answer with an answer recorded on p 38 of the transcript. That answer is this:
"Q. You believe they were off. That is there are two different things, you see, sir when Mr ..
A. It was dark. It was dark. It was dark there so it was off."
As he was descending the stairs the plaintiff would not have looked to see if the fluorescent lights were on or off but rather his attention to that question would only be drawn by the extent of the illumination that was thrown by such fluorescent lights onto the staircase itself. In other words before reaching a view as to whether the lights were on or off he would reach a view as to whether it was dark or not. If it were dark then it might follow that the lights were off. In other words, the mode of expression used by the plaintiff is indicative not of reconstruction but of the usual way of perceiving illumination is generally the fact of darkness that indicates whether a light is switched on or off. Equally, when asked if the moon is shining one might look outside and say that it is extremely dark and therefore unlikely that the moon is shining. I do not understand what the plaintiff said, in either of the quotations I have just made, as a reconstruction but rather the plaintiff's giving evidence consistently with human experience of perceiving darkness before realising why it was dark rather than light.
The plaintiff then told me that he walked down to the intermediate landing where the staircase turned through 180 degrees and this evidence was then given:
"Q. ... In photograph 7 [of exhibit U] there appears to be some nosings on the stairs. Were they on the stairs on 18 September 2009?
A. No, they were not. They were put there after my fall down the stairs they put those on.
Q. Now, I interrupted you, you were describing how you were..
A. Sorry, so that's coming down - I came out of the back door, on photograph 5 onto the landing there, I went down the stairs in photograph 7 then on photograph 8 is where I was descending down to go down onto the bottom which was the breezeway, and I was holding the railing there which is on the right-hand side. I my heel missed or just clipped the second step and my leg went out from underneath me. I sort of threw myself backwards because I thought I was going nose first down the stairs and I hit my buttocks, landed on my bum and, yeah, and it was a fairly hard fall."
The plaintiff then told me that his buttocks landed on the first stair down from the intermediate landing. The plaintiff then gave some further evidence about the nosings and his evidence continued thus:
"Q. What was the lighting like around the first, second and third of those steps - in photograph 7 [of the steps between the intermediate landing and the ground]?
A. The initial landing and the first couple of stairs, like are most probably more lit than anything else on the stairwell because - well the door opens and the light comes out from there and that walking, if you did it in reverse and walked up to open the door, the light from that small thing is very, very dull."
The words, "That small thing," refer to the light which is about two metres above the door being the side entrance to the function centre. The effect of this evidence was that the lighting thrown by the one source of illumination above the staircase was poor, it was, "dull." After an objection by learned counsel for the defendant, Mr Perry, I commenced to ask some questions:
"Q. The landing, what I call the intermediate landing..
A. Yes.
Q. ..Is that - what's the lighting like there?
A. Yep, it's dull. Dull and there is no other lighting apart from the light above the doorway and then the next lot of lighting that you hit is the fluorescent lights in that breezeway which are eight, 10 metres away from the bottom of the stairs.
WILLIS
Q. Even when the fluorescent lights in the breezeway are on, what is the illumination of those stairs like?
A. It's still very dull. You can see the concrete, like at the bottom, but the stairs are still in semi-darkness.
Q. When those fluorescent lights are turned off, what's the illumination like in the set of stairs depicted in photograph 8 [the stairs between the intermediate landing and the ground]?
A. It's very, very small illumination whatsoever. There's not a lot of light there when they're off there's, yeah, very little light.
Q. Can you see the steps as you are going down the set of stairs depicted in photograph 8 as you walk down them?
A. Of a night time, not really, no.
Q. On 18 September 2009, as you were negotiating the stairs, were you able to see the steps on the stairs as you went down the second set of stairs in photograph 8?
A. It was very, like very shadowy. So it's not a definite step. You know that there's a step there because you're walking down them, but you don't - see the stair as such. You know that you're on the steps and, yeah, and I've overstepped that step."
In the explanation given by the plaintiff that I first quoted he believed that his heel missed, "or just clipped," the second step. However, if his heel did hit the second step he is likely to have been propelled backwards rather than forwards. It is clear that the plaintiff feared falling forward and therefore threw himself back, landing on his buttocks on the first step down from the intermediate landing. It appears to me more probable than not that the plaintiff did overstep the second step rather than catching it with his heel. That is consistent with other evidence in the matter. At p 40 of the transcript, in cross-examination, when being asked about whether the stairs were obstructed, the plaintiff said this:
"Q. There wasn't an obstruction on the stair, was there?
A. No, there was no obstruction there. I overstepped a step, a human accident, I believe."
Again, in further cross-examination, on p 45, the plaintiff said this when being cross-examined about a document which became exhibit 1:
"Q. Would you look please at the first page of that, Mr Hile, the bottom right hand corner, the words that are written against the box for details of the nature of the injury and how it occurred? Those are your words and your handwriting, aren't they?
A. Yes.
Q. That's an accurate account of what happened, is it?
A. Yes, I - walking down the stairs to lock the cellar, I've missed the step and fell backwards."
Exhibit 1 is an employee's report of injury form signed by the plaintiff on Monday 21 September 2009 and the mechanism of injury stated is this:
"Walking down stairs to lock cellar. Missed step and fell backwards onto my bottom - hurting my back."
Prior to making that statement, the plaintiff saw a general practitioner, Dr Ray Worley at Forster on Saturday 19 September 2009. The plaintiff and his wife were then living in Forster. When asked to describe how the injury occurred the certificate says this:
"while descending wine cellar stairs missed step and fell backwards."
That could only be a history given by the plaintiff to Dr Worley. I, accordingly, accept that the plaintiff misstepped or stepped over the second upper step on the length of stairway between the intermediate landing and the ground level, and in order to prevent his falling forward he threw himself backwards landing on his buttocks on the first or upper most step of that section of the stairway, and that in that process he injured his back. The fact that he injured his back is not in issue.
The question is why did the plaintiff overstep? The only explanation is that provided in the lengthiest passage I have thus far quoted from the transcript in which he said, "You don't - see the stair as such. You know that you're on the steps and..I've overstepped that step." The inference to be drawn is that the plaintiff did not see the second step. That is the clear thrust of that part of his evidence. Furthermore, there is no competing reason why the plaintiff misstepped on this occasion.
Very shortly after the plaintiff gave that evidence I pointed out to him that he had been working at the club for about six years by this time and that he had travelled up and down the stairs regularly to which he replied, "at each function." Mr Perry, in cross-examination, took up that issue commencing on p 31 of the transcript. At the defendant's racecourse there were 19 race days in each calendar year up until the time of the accident now in question. He estimated that there were between 25 to 30 functions each year. Eventually, the plaintiff conceded about 30 functions each year. The plaintiff conceded that he would have traversed this staircase about 180 times in his period of service with the defendant. In fact, it could have been more often because counsel did not appear to add the race days together with the private functions.
The plaintiff conceded that the stairs had been the same throughout his whole period of employment. He agreed that the steps were regularly spaced. They were each about 15 centimetres high, about one metre wide and had treads of 26 centimetres and are made of checker plate steel. There was no inherent vice in the staircase. The plaintiff had traversed it regularly in the past without any problem being encountered.
The thrust of the evidence is that the lower portion of the staircase normally was partially illuminated by the fluorescent lights in the breezeway. Normally, they would be turned on at night because it was the plaintiff's job to turn off the lights and the lights were necessary for him to access the cellar and cool room in order to lock it up. On this occasion a member of the public appears to have turned the light off because the light switch could easily be used by any person passing it. No attempt was made to indicate how frequently the lights in the breezeway were turned off when the plaintiff needed to descend the staircase and that question was not canvassed in cross-examination for the reason that it was not raised in chief.
However, there is no dispute that the lights were, on this occasion, turned off. Exhibit X is a statement prepared by Mr Phil Shoesmith on 21 July 2014. Mr Shoesmith was the chief executive officer of the defendant from September 2003 until March 2013. Exhibit X was tendered by consent. It records this:
"It was brought to the Board of Directors' attention that the bar staff were having difficulty in accessing stock safely from the storage facility particularly at night via the back stairs. It was suggested that a cool room be built on the Function Room level to alleviate this situation and quotes were obtained but deemed too expensive to build at a subsequent Board Meeting.
Another safety issue the staff had, was the exterior lighting was not controlled at a central point and was in fact able to be accessed by the General Public. The staff member locking up at the conclusion of a night function had to go to various switch locations on the grounds to turn all lighting off. On the night of Greg Hile's injury these exterior lights had been turned off by a member of the public and apparently Greg slipped on the back stairs which was in darkness. After this accident some anti-slip tape was attached (by a Board Member) to the front edge of the stairs in an endeavour to prevent a similar accident. Greg and myself, had discussion with the chairman of the club at that time, that a central lighting switch be installed with a time delay to assist in staff safety but no actions were taken to improve the situation."
I have quoted that exhibit almost in its entirety at this stage to obviate having to carve it up into small sections at various times in these reasons.
It is clear that the plaintiff did not slip. There is no suggestion by the plaintiff that he did so. I realise that Dr James Bodel has a history of the plaintiff's slipping on the back staircase but that is not the plaintiff's evidence. A trip and fall, and a slip and fall, are often conflated and equally a misstepping can often be conflated with a slipping or tripping. I believe it likely that someone at the defendant's premises misunderstood the mechanism of the plaintiff's injury, and, believing it to be slip, a board member applied the non-slip black nosings to the stairs which can be seen on photographs 7 and 8 of exhibit U.
However, the black nosings would not have obviated the present fall because the plaintiff did not slip on the edge of a step but rather overstepped the second step down from the intermediate landing because its presence was obscured by poor lighting. If the lighting were poor it would not matter whether the nosing was painted black, yellow, red, or some other hue. The only colour which might have assisted would have been some fluorescent nosing but I personally have never come across any nor has it been suggested, in this or any other case that I recently heard or read, that fluorescent nosings had become available.
I have quoted Mr Shoesmith's statement to confirm that a contemporaneous history was given by the plaintiff to Mr Shoesmith of the lights in the breezeway having been turned off by a member of the general public. The plaintiff reported his fall to Mr Shoesmith by telephone of the morning of Saturday 19 September 2009 within a matter of some 12 hours.
The real issue argued by the parties on liability is the question of causation. Mr Perry referred me to the judgment of Priestley JA in Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 205; (2001) 25 NSWCCR 218 in which his Honour said this:
"2. The plaintiff's description of her fall was brief and uninformative. As the trial judge said in his reasons: "In her evidence the plaintiff merely said that her foot went out from underneath her".
3. The trial judge's conclusion that the plaintiff's fall was because of the slipperiness of a tread on the stairs rather than because she simply lost her footing was based on Professor Morton's expert opinion that the stairs were slippery. It seems clear that without Professor Morton's opinion, the trial judge would not have found the plaintiff fell because of the slipperiness of the stairs.
4. In my view the trial judge erred in accepting Professor Morton's opinion of slipperiness. This opinion contradicted uncontradictable facts that showed that the stairs were not slippery in any ordinary meaning of the word. For the stairs (or any single step) to be slippery in a sense relevant for the present case, they (or it) must in my opinion have the characteristic that persons walking on them (or it) with ordinary care will, from time to time, slip.
5. The plaintiff began work with the defendant on 16 January 1984. She suffered her fall on 30 June 1986. She walked up and down the stairs every working day. There were more than fourteen steps in the stairway. On the basis of a five day working week and four weeks annual holidays this means that she walked down over the step on which she fell at least 575 times. Absences may have reduced this number. Call it 500 and the point still seems to be irresistible. (Since all the steps seem to have been of the same composition, the relevant figure is probably at least 7000.) The plaintiff fell once. She gave no evidence that she had ever slipped. There was no evidence that any one else ever slipped. One fall in more than 500 uses of a step (or 7000 uses of all the steps in a stairway) is not evidence that the step (or the steps in the stairway) is (or are) slippery in any relevant use of the word. It is evidence of the opposite. The only conclusion, in my opinion, is that Professor Morton's opinion about the slipperiness of the steps in the stairway was so clearly wrong that even his impressive qualifications could not rescue it.
6. Once I reach this conclusion, it seems to me to follow that the judgment in this case should be set aside, and in its place judgment entered for the defendant."
It is true that persons can overstep stairs when they are perfectly illuminated. However, there is generally some particular reason why that occurs. The person might be distracted by having their attention turned to something else happening around them or be distracted by using an apparatus such as a mobile telephone, or distracted by a conversation with somebody behind the person, or the person may not be concentrating on what he or she is doing because diverted by some other concern, or a person might be hurrying, and in an attempt to speed up his or her progress, miss a step in the process of trying to be swift. However, there is no competing reason given in the evidence as to why this plaintiff misstepped on this occasion.
The inference from his evidence and the inference from the whole of the evidence is that he misstepped because of the inadequacy of the lighting as is pointed out in his evidence which I have quoted. The Civil Liability Act 2002 does not apply to a work injury damages claim: s 3B(1)(f). Therefore, s 5D of that Act does not apply to the current proceedings. It has been said on a number of occasions that the determination of causation under the Civil Liability Act 2002 accords with the common law, however, there is some doubt about that. Such a doubt was expressed by Allsop P (as his Honour then was) in Zanner v Zanner (2010) 79 NSWLR 702 at [5]. In Harvey v PD (2004) 59 NSWLR 639 Spigelman CJ expressly reserved his position on the two stage test of causation at [11]. Accordingly, I will not rely upon any decision decided under s 5D of the Civil Liability Act but seek to return to the common law.
The learned authors of the second edition of, "The liability of employers in damages for personal injury," Glass JA, McHugh QC (as his Honour then was), and FM Douglas (as he then was) discuss amongst other topics the duty of the employer to provide to his employees safe premises. At p 58 the learned authors said this:
"The plaintiff must prove that his injuries were caused by the defect which exposed him to the risk of injury. It is not necessary, however, that he be able to prove exactly how the injury occurred, if the relationship between the injury suffered and the defect in the place of work is reasonably apparent. If, for example, a plaintiff while descending a ladder slips and falls, and it is proved that the ladder contained a defective rung near the part of the ladder where the plaintiff slipped, the jury would be entitled to hold that the fall was caused by the defective rung, even though the plaintiff was unable to say affirmatively that he was on the defective rung when he slipped."
The learned authors refer, in a footnote, to two decisions. Those are Gray v S G White Pty Ltd (1970) 71 SR (NSW) 101 and Ajaka v Austral Bronze (1969) 71 SR (NSW) 376 but those references do not substantiate the proposition put forward by the learned authors. The authority for the statement must rely upon the expertise of the learned authors, an expertise which I am happy to follow.
In the same work the authors consider causation and remoteness commencing at p 184. At 185 the learned authors say this:
"The most satisfactory formulation of the legal concept of causality affirms that conduct is casually relevant if it is necessary to complete a set of conditions jointly sufficient for the production of the consequence. In almost all instances, a factor casually relevant on this test is also a condition sine qua non. Such is the doctrinal basis for the practical, 'but for,' approach to questions of causation in law. On the practical common sense approach the defendant's act or omission is treated as a cause of the plaintiff's damage or has having contributed to it if the latter would probably not have occurred but for the former."
On the following page the learned authors say this:
"The liability which the law attaches to any causally relevant factor, ie to any conduct which contributes to the injury is illustrated by Power v Snowy Mountains Hydro Electric Authority (1957) 57 SR (NSW) 9. The plaintiff claimed damages in respect of the aggravation of a condition of silicosis from which he suffered before entering the employment of the defendant. Noxious dust capable of aggravating his condition came both from actionable and non-actionable sources and it was not possible to say which predominated. The trial judge ruled that the plaintiff had failed to show a causal connection between his aggravated condition and the defendant's breach of duty. The verdict for the defendant was set aside as it sufficiently appeared from the evidence that the defendant's breach of duty had materially contributed to the aggravation."
Of course the locus classicus for causation at common law in this state is the decision of the High Court of Australia in March v E & MH Stramare Pty Ltd (1991) 171 CLR 506; [1991] HCA 12. In that case Mason CJ said this about causation as a question of fact:
"17. The common law tradition is that what was the cause of a particular occurrence is a question of fact which "must be determined by applying common sense to the facts of each particular case", in the words of Lord Reid: Stapley. That proposition is supported by a long line of authority in the United Kingdom: Leyland Shipping Co.; Admiralty Commissioners v. S.S. Volute; Yorkshire Dale Steamship Co.; Alphacell Ltd. v. Woodward; McGhee v. National Coal Board. It is supported also by this Court's decision in Fitzgerald v. Penn.
18. It is beyond question that in many situations the question whether Y is a consequence of X is a question of fact. And, prior to the introduction of the legislation providing for apportionment of liability, the need to identify what was the "effective cause" of the relevant damage reinforced the notion that a question of causation was one of fact and, as such, to be resolved by the application of common sense.
19. Commentators subdivide the issue of causation in a given case into two questions: the question of causation in fact - to be determined by the application of the "but for" test - and the further question whether a defendant is in law responsible for damage which his or her negligence has played some part in producing: see, for example, Fleming, The Law of Torts, 7th ed. (1987), pp 172-173; Hart and Honor, Causation in the Law, 2nd ed. (1985), p 110. It is said that, in determining this second question, considerations of policy have a prominent part to play, as do accepted value judgments: see Fleming, p 173. However, this approach to the issue of causation (a) places rather too much weight on the "but for" test to the exclusion of the "common sense" approach which the common law has always favoured; and (b) implies, or seems to imply, that value judgment has, or should have, no part to play in resolving causation as an issue of fact. As Dixon C.J., Fullagar and Kitto JJ. remarked in Fitzgerald v. Penn (at p 277): "it is all ultimately a matter of common sense" and "(i)n truth the conception in question (i.e., causation) is not susceptible of reduction to a satisfactory formula": at p 278.
20. That said, the "but for" test, applied as a negative criterion of causation, has an important role to play in the resolution of the question. So much was conceded by Dixon C.J., Fullagar and Kitto JJ. in Fitzgerald v. Penn in their discussion (at pp 276-277) of the unreported decision of this Court in Skewes v. Public Curator of Queensland (delivered 6 September 1954) where A and B were driving their vehicles at excessive speeds in conditions of poor visibility so that their vehicles collided. A was on his correct side of the road, B was not. A's negligence was not causative of injury. Their Honours pointed out that, had the action been tried by a jury, it would have been correct for the judge to instruct the jury "to ask themselves the question whether they were satisfied that the collision would not have taken place with the same results if driver A had been driving at a reasonable speed". See also ICIANZ. v. Murphy, at pp 127-128; Duyvelshaff v. Cathcart and Ritchie Ltd., at pp 414-415, 416-417, 419; pp 134-135, 138, 142-143 of ALR.
21. The commentators acknowledge that the "but for" test must be applied subject to certain qualifications. Thus, a factor which secures the presence of the plaintiff at the place where and at the time when he or she is injured is not causally connected with the injury, unless the risk of the accident occurring at that time was greater: see Hart and Honor , at p 122. As Windeyer J. observed in Faulkner v. Keffalinos (1970) 45 ALJR 80, at p 86:
"But for the first accident, the (plaintiff) might still have been employed by the (defendants), and therefore not where he was when the second accident happened: but lawyers must eschew this kind of 'but for' or sine qua non reasoning about cause and consequence."
22. The "but for" test gives rise to a well-known difficulty in cases where there are two or more acts or events which would each be sufficient to bring about the plaintiff's injury. The application of the test "gives the result, contrary to common sense, that neither is a cause": Winfield and Jolowicz on Tort, 13th ed. (1989), p 134. In truth, the application of the test proves to be either inadequate or troublesome in various situations in which there are multiple acts or events leading to the plaintiff's injury: see, for example, Chapman v. Hearse; Baker v. Willoughby [1969] UKHL 8; (1970) AC 467; McGhee v. National Coal Board; M'Kew (to which I shall shortly refer in some detail). The cases demonstrate the lesson of experience, namely, that the test, applied as an exclusive criterion of causation, yields unacceptable results and that the results which it yields must be tempered by the making of value judgments and the infusion of policy considerations. That in itself is something of an irony because the proponents of the "but for" test have seen it as a criterion which would exclude the making of value judgments and evaluative considerations from causation analysis: see Weinrib, "A Step Forward in Factual Causation", (1975) 38 Modern Law Review 518, at p 530."
In the same matter McHugh J (As he had become) addressed the question of causation at length. Mr Willis, learned counsel for the plaintiff, referred me to this part of his Honour's judgment:
"17. Despite the numerous judicial statements to the effect that being a causa sine qua non of the occurrence of damage is not enough to make an act or omission a cause of damage for legal purposes, another school of opinion asserts "that the only genuine causal issue is that of sine qua non or 'cause in fact'": see Hart and Honor , at p lxvii, who reject this view. Many, probably most, academic legal writers on the subject assert that, once the "but for" or causa sine qua non test is satisfied, the issue of causation is spent. Other issues such as "proximate cause", "sole cause", "novus actus interveniens", "real cause" and so on are the product of policy choices whose objects are to limit legal responsibility for damage resulting from acts or omissions of the kind in question. Accordingly, on this view, if a negligent act or omission materially contributed to the occurrence of damage, it will still be a cause of the damage for legal purposes even though, for policy reasons, there may be no legal liability for that act or omission. Moreover, a negligent act or omission will be held to have materially contributed to the damage if its contribution was not de minimis: Bonnington Castings Ltd. v. Wardlaw [1956] UKHL 1; (1956) AC 613, at p 621."
The effect of his Honour's opinion on the question of causation is this:
"21. In my opinion, now that legislation allows liability for damage to be apportioned in accordance with what the court thinks is just and equitable having regard to the comparative responsibility of the parties, the preferable course is to use the causa sine qua non test as the exclusive test of causation. One obvious exception to this rule must be the unusual case where the damage is the result of the simultaneous operation of two or more separate and independent events each of which was sufficient to cause the damage. None of the various tests of causation suggested by courts and writers, however, is satisfactory in dealing with this exceptional case. Perhaps no more can be done in this situation than to treat each wrongful act as an independent cause for legal purposes. The terms of a statute, legal rule or legal instrument may also require a different approach from the "but for" test. In general, however, the "but for" test should be seen as the test of legal causation. Any other rule limiting responsibility for damage caused by a wrongful act or omission should be recognised as a policy-based rule concerned with remoteness of damage and not causation."
The approach is primarily a common sense approach. Here the only explanation available for why the plaintiff overstepped was the inadequacy of the lighting as his evidence suggests and points to directly. I have no hesitation of finding that the plaintiff misstepped because the lighting on the staircase where he misstepped was so poor that he could not discern the nosing of the step, and therefore that led to his overstepping. Were I to so find the defendant made no submission about the question of breach of duty of care. The negligence here was not the absence of nosings because a nosing would not have shown up in any event. Here the negligence was the inadequacy of the external lighting over this emergency staircase. That could have been rectified easily and cheaply by the provision of a floodlight instead of the small, square, box light above the side entrance to the function room. By floodlight I do not mean a commercial floodlight such as one might find at a football field but rather the sort of floodlights commonly used in private residences to illuminate a courtyard, patio, or driveway. The problem could also have been rectified by providing a cover to the downstairs light switch which would have enabled the cover to be locked so that only a person such as the plaintiff could switch off the lights in the breezeway. Equally, it could have been remedied as had been suggested to the board of the defendant and discussed with Mr Shoesmith that a central lighting switch be installed with a time delay.
Just on that question of liability I should advert to exhibit R, some minutes of the board of the defendant. The minutes of 21 November 2007 end with this:
"Cool room in function centre. Some discussion took place regarding the difficulty in stocking the upstairs bars on big race days. Club to obtain quote for a cool room with committee to discuss at next meeting."
At the meeting of 26 January 2008 it was noted that there had been a quotation received but it resolved to obtain a second quotation. At a meeting on 20 February 2008 it was noted that a second quotation had been obtained and it was resolved to obtain a third quotation. On 26 March 2008 this is recorded:
"Cool room - some discussions took place regarding the cost of the proposed cool room for function centre. It was suggested that two additional staff may be more cost effective on Race Days. Quote from R&L Refrigeration to be considered at next meeting."
The minutes of 6 April 2008 contain this:
"Cool room - three quotes received, the cheapest estimated to finally cost $10,000. After discussion it was resolved to not go ahead and when required we employ two employees to ensure the top bars are continually, suitably stocked. Greg Hile is to be given strict instructions that Bar Staff, especially Russell Allport, be not allowed to transport stock from the cool room to the function centre bar due to OH&S concerns."
The plaintiff told me, and there is no reason to doubt him whatever, that Mr Russell Allport was an elderly gentleman and there were concerns about his ability to transport material. The minutes of the meeting of 28 May 2008 contain this:
"Stocking of fridges in Function Centre. Russell Allport is not to take alcohol upstairs. Steve Douglas or other employee to be utilised."
The plaintiff told me that it was normal to move alcohol, not up the rear staircase, but by the public entrance to the function room which involved, not stairs, but a ramp. However, this is a clear reference to the carrying of alcohol, "Upstairs." No doubt on busy days when the function centre was involved if alcohol stocks were running low it might be thought to be poor form to wheel a trolley containing alcohol through the crowded function room to the bar. It might be more befitting to carry boxes of alcohol up the rear staircase, as it is being called, into the side entrance to the function room, thus enabling the fridges to be restocked. It appeared to me that from the minutes and Mr Shoesmith's statement, exhibit X, that there was a practice of carrying boxes of wine and spirits, and perhaps even kegs of beer, up the rear staircase at times. Hence the consideration of erecting a cool room on the first floor of the premises, either in or adjoining the function room in order to obviate the necessity of moving stock around using the rear staircase. In other words, this staircase was not there merely as an emergency exit. It was used, not only by the plaintiff when locking up, but by other staff in the course of their work in the function room. Again, that consideration highlights the need for the defendant to have taken better steps to ensure that this staircase, part of the work premises, not only for the plaintiff but for other employees was adequately illuminated as they went about their work. I have no hesitation of finding that the defendant failed to provide the plaintiff with a safe place of employment and that the breach of that duty caused the plaintiff's injury.
It's 25 past 4. Friday? Counsel can be excused if you want to. Let me just ask a question first. You made no submission about contributory negligence?
PERRY: I did not.
HIS HONOUR: You did not?
PERRY: That's correct. I did not.
HIS HONOUR: Was it pleaded?
WILLIS: I don't think it was.
HIS HONOUR: It was.
PERRY: It was and your Honour has referred to it inadvertence so I made no submissions but I would ask for your Honour to deal with it if it's pleaded.
HIS HONOUR: You made no submission about it?
PERRY: Correct.
WILLIS: That's dealt with in Czatyrko v Edith Cowan University but--
HIS HONOUR: Sorry?
WILLIS: Inadvertence is one of the matters--
HIS HONOUR: Yes.
WILLIS: I didn't submit on it--
HIS HONOUR: I'll just do that now because what I want to do on Friday is damages. That will be relatively short but we're running out of time.
Let me just deal with this issue quickly. I have now given such reasons as I believe I ought give on the question of liability. It is now 4.27. I intend to adjourn until Friday which is currently vacant in order to provide reasons for the award of damages. Mr Perry for the defendant did not address me on the question of contributory negligence. However, it is pleaded in para 5 of the defence, and Mr Perry now asks me to deal with it. Plea numbered 5 is this:
"In the alternative to the preceding paragraphs, and without admission of negligence on its part, the defendant says the plaintiff's injuries, disabilities, and damaged would cause and or contributed to by his own negligence.
PARTICULARS OF NEGLIGENCE:
(a) Failing to take reasonable care for his own safety.
(b) Failing to keep a proper look out, knowing the risk existed."
An allegation of failing to take reasonable care for one's own safety is merely a regurgitation of the allegation of negligence. It is not a particular of negligence at all. The defendant, however, does allege that the plaintiff failed to keep a proper look out knowing that the risk existed.
There is always a risk when traversing any set of steps. Risk can arise in a large number of ways. A person is required to keep a proper look out. However, it is difficult to keep a proper look out if the adequacy of the means of seeing is attenuated. One can only see as far as the available light allows. The plaintiff traversed this staircase in the normal course of his work. It was not suggested otherwise. The lighting on this occasion was inadequate. It led to the plaintiff's fall.
The plaintiff may have been guilty of some inadvertence. If, having perceived the inadequacy of the lighting, he was somehow required to turn around, go back to the function room, and then leave the function room by its public or front access, then go down the ramp to the breezeway and approach the cool room and cellar in that fashion, then it appears to me that is requiring the plaintiff to do something that he is not required to do. In Podrebersek v Australian Iron Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 497; (1985) 59 ALR 529. Gibbs CJ, Mason, Wilson, Brennan, and Deane JJ said this:
"4. It was submitted on behalf of the appellant that the finding of the jury that the appellant was guilty of contributory negligence was against the evidence and the weight of the evidence, and further that the Court of Appeal had erred in declining to hold that the jury's finding that the damages recoverable by the appellant ought to be reduced by 90 per cent by reason of his contributory negligence was against the evidence and the weight of the evidence.
5. The first of these submissions took as its starting point the judgment of this Court in McLean v. Tedman [1984] HCA 60; (1984) 58 ALJR 541, at p 545; [1984] HCA 60; 56 ALR 359, at pp 365-366. It was correctly submitted that the issue of contributory negligence had to be approached on the footing that the respondent had failed to discharge its obligation to take reasonable care, and that in considering whether there was contributory negligence on the part of the appellant, the circumstances and conditions in which he had to do his work had to be taken into account. The question was whether in those circumstances and under those conditions the appellant's conduct amounted to mere inadvertence, inattention or misjudgment, or to negligence. The failure on the part of the respondent to provide pins that could be screwed by hand for the requisite number of turns could result in danger to an employee only if he failed to ensure that a pin was properly screwed in. The appellant in the course of his evidence gave answers which could have satisfied the jury that he knew at the relevant time both that the pin had been screwed in only half a turn or "only a little bit stuck in" and that it was "very bad" to put in a pin with "only a little bit of a turn" since a pin so installed might fall out, and that about three turns were necessary to ensure that a pin stayed in position. They were entitled to prefer the evidence of Mr Kalaitzakis to that of the appellant and Mr Osman and to draw the conclusion that it was reasonably practicable to ensure that the pin could be screwed in far enough by the use of a spanner or "tap", and that the appellant knew this. Indeed, it should have been obvious to any gas regulator of the appellant's experience - perhaps to anyone of ordinary commonsense - that the use of a tool might assist to turn the pin. It was also obvious that it was dangerous to leave a pin so inadequately screwed in that it might fall out and allow gas to escape. On the evidence the jury were clearly entitled to find contributory negligence."
The question is often, in cases of this nature, whether there was mere inadvertence, inattention or misjudgement on the one hand or negligence on the other. The issue of the employer's duty to his employee was more recently discussed by Gleeson CJ, McHugh, Hayne, Callinan, and Heydon JJ in Czatyrko v Edith Cowan University [2005] HCA 14 where their Honours said this:
"12. The appellant relied in this Court on these basic general principles. An employer owes a non-delegable duty of care to its employees to take reasonable care to avoid exposing them to unnecessary risks of injury. If there is a real risk of an injury to an employee in the performance of a task in a workplace, the employer must take reasonable care to avoid the risk by devising a method of operation for the performance of the task that eliminates the risk, or by the provision of adequate safeguards. The employer must take into account the possibility of thoughtlessness, or inadvertence, or carelessness, particularly in a case of repetitive work.
13. The appellant's reliance on these principles is well founded. This case is in our opinion a tolerably clear one. This is not simply a case of a failure to warn. It is a case of a failure to devise and implement a safe system of work, or to provide the appellant with proper and sufficient equipment to enable him to carry out his work safely. The risk that the appellant would attempt to step backwards on to the platform in the belief that it was raised, without checking whether this was the case, was plainly foreseeable. There was no system in place to guard against it. The risk could have been readily obviated by the respondent by the taking of simple measures. The measures included the fitting of a warning "beeper" or the introduction of a system for the giving of an oral warning as and when the platform was being lowered. In light of its failure to implement such or like measures, the respondent was in breach of its duty to take reasonable care to prevent the risk of injury to the appellant. The Full Court therefore erred, in our opinion, in its determination that the respondent was not in breach of its duty.
14. Compliance by the respondent, as an employer, with its duty of care to an employee was not to be measured by reference to the reasonableness of imposing on an occupier of land an obligation to warn members of the public about the obvious risks on the land. The case for the appellant was not that he should have been warned by his employer that if he fell off the truck he might suffer injury, or that if he stepped off the back of the truck into space he would fall. It was not a question of warning the appellant of a risk. It was a question of creating a risk by failing to adopt a safe system of work.
15. There should have been in place a system of work designed to avoid the risk that a person required to step backwards and forwards on and from a moveable platform might do so without first looking behind him. The system of work necessarily had also to take into account that the task was a repetitive one to be performed in a diminishing space. Proper account of these matters was not taken by the respondent. It did no more than require that the appellant and Mr Fendick load the truck. That proper account of these matters was not taken was overlooked or disregarded by the Full Court.
16. An employer has another obligation. It is to provide employees with suitable plant and equipment to enable them to carry out their work safely. This case could also be characterized as a case of a failure to do that. The simplicity and inexpensiveness of a warning device that could have been fitted, required that it be fitted here. This was another matter to which the Full Court failed to pay due regard. The respondent was negligent. The Full Court erred in holding to the contrary.
17. The respondent submits, nevertheless, that even if the Full Court erred, its provisional finding of contributory negligence of 70% on the part of the appellant should not be disturbed.
18. In the present case, the appellant did no doubt omit to take a simple precaution of looking to see whether the platform was raised before stepping on to it, and this omission was a cause of his injuries. But in acting as he did, the appellant did not disobey any direction or warning from the respondent. No directions or warnings of any kind were given by the respondent in relation to the use of the platform. Furthermore, both the appellant and Mr Fendick were under pressure from their supervisor to complete the job promptly. The work was repetitive. In all of these circumstances it presented a fertile field for inadvertence. The onus of proving contributory negligence lay upon the respondent. This it failed to do in this case. The appellant's attempt to step on to the platform in the mistaken belief that it was still raised, and in an effort to finish loading the truck, was the product of nothing more than "mere inadvertence, inattention or misjudgment". It was not a remote risk that the appellant might step back without looking behind him. His actions were neither deliberate, intentional, nor in disregard of a direction or order from the respondent. No finding of contributory negligence should have been made. The appeal should be allowed."
The matter is perhaps best considered by the learned authors of The liability of employers in damages for personal injury, second edition, where they said at 221:
"Even though a risk of injury to the plaintiff is reasonably foreseeable, the issue of contributory negligence is not supported unless it was reasonably practicable for the plaintiff to pursue an alternative course of conduct which would have obviated that risk. If the only area of choice open to the plaintiff is to give up his activity or to continue, notwithstanding the risk, it would not be negligent to continue the activity. In Clayard v Dethicks (1848) 12 Q.B. 439 the plaintiff's access to the street from his stable was barred by a trench which the defendant had wrongfully dug. The plaintiff attempted to lead two of his horses along the passageway past the trench but one fell into the trench and was injured. It was held that the jury could properly find that there was no contributory negligence on the part of the plaintiff. The risk of injury was not so great that the plaintiff should give up the use of his stables rather than make the attempt to get his horses out.
The principle acquires greater force when the plaintiff encounters the risk in the course of performing work for the defendant. Renunciation of his employment cannot be alleged as a practicable alternative. In Hartge v F Lassetter and Co. Ltd (1916) 16 SR (NSW) 174 the plaintiff claimed that he had been injured as a result of being put to work by the defendant's foreman in dangerous proximity to a lift well. It was suggested to him in cross-examination that the work could have been done in any one of three other ways which would have avoided the risk in question. The plaintiff answered that two of them were in conflict with his orders and the third method was not practicable. The defendant called no evidence. It was held that the issue of contributory negligence was wrongly left to the jury as there was no evidence to support it.
Because of the defendant's negligence, the plaintiff may be suddenly placed in the dilemma of having to chose between alternatives, one of which is fraught with risk and one not. If in, 'the agony of the moment," he misjudges and chooses the wrong alternative, the approach of the Courts has been to treat his conduct leniently. In Jones v Boyce (1816) 1 Stark 493 a passenger in a coach was so convinced that an accident would occur because of the breaking of defective reins that he jumped out. If he had stayed in the coach, he would have escaped injury. Lord Ellenborough directed the jury:
'…it is for your consideration, whether the plaintiff's act was the measure of an unreasonably alarmed mind or such as a reasonable and prudent mind would have adopted. If I place a man in such a situation that he must adopt a perilous alternative, I am responsible for the consequences.'
In Caterson v Commissioner for Railways (1973) 128 CLR 99 at p 111, the High Court rejected the argument that the doctrine or alternative danger, of which Jones v Boyce is an early example, has no application unless the plaintiff has been placed by the defendants negligence in a position in which he has to choose between two dangers. It was held that where the plaintiff has by reason of the negligence of the defendant been so placed they can only escape from inconvenience by taking a risk, the question whether his action in taking the risk is unreasonable is to be answered by weighing the degree of inconvenience to which he will be subjected against the risk that he takes in order to escape from it. Thus, a plaintiff placed in the emergency of having to choose between alternatives will only be adjudged guilty of contributory negligence in failing to make the correct decision, if a man of ordinary nerve and presence of mind would have done so. Usually, where the plaintiff relies on the dilemma principle to escape a charge of contributory negligence, the issue will be one for the jury. Occasionally, however, it may be so clear that the opportunity afforded the plaintiff of choosing a safe alternative was illusory, that the issue should not be submitted to the jury at all."
Here, if the plaintiff perceived that he might misstep, about which he was not cross-examined, then he had a choice. He could continue his progress down the stairs, taking a risk which he may have run before, or he could go back up the stairs into the function centre, take the long way around to the cool room and cellar to lock it up, and perhaps putting in danger the requirement that he complete his duties before midnight and make sure that all others, employed with him by the defendant, finish their duties before midnight that evening. In the circumstances I believe that the plaintiff was not guilty of contributory negligence by continuing down the staircase as he sought to do but unfortunately the injury which befell him did occur. I, therefore, find that the plaintiff has not been guilty of any contributory negligence.
The judgment is stood over part heard to this place at 10 o'clock on Friday 15 December 2017.
PERRY: I won't be here. It's likely that Ms Robinson is here.
HIS HONOUR: Counsel will not be required. Counsel may be excused.
PERRY: Can I foreshadow that there will be an application by my people for a 28 day stay because of the question of--
HIS HONOUR: Then you can turn up on Friday.
PERRY: I'll make the best chance I can to get here.
ADJOUNRED TO FRIDAY 15 DECEMBER 2017
I turn now to the assessment of the plaintiff's damages. In a work injury damages claim, all that the plaintiff can reclaim is his past and future economic loss. Therefore it is generally, strictly unnecessary to consider in any detail the plaintiff's background and the injuries which befell him and the extent of his pain and suffering and the like. However a consideration of the plaintiff's work history is important in the current proceedings because it helps inform me of some relevant matters.
The plaintiff was born on 20 November 1954. He is currently 63 years old. He obtained the School Certificate in 1970 at Taree. He left school then and in 1971 commenced working for the State Rail Authority of New South Wales. He started as a station assistant and worked his way up to being an assistant stationmaster until he was made redundant in April 1984. Between June 1984 and February 1986 he was the transport coordinator for Paramount Pictures. Between April 1986 and January 1987 he worked as the sales manager for Palms Galore at Nerang in south-east Queensland.
In March 1987 he opened his own business which is described as a butchery but the plaintiff was not qualified as a butcher. I understand he sold what is referred to as "boxed meats". He held that self-employment until April 1993.
He then entered the hospitality industry. In May 1993 he became the manager of the Moonee Tavern & Bottle Shop at Moonee Beach near Coffs Harbour. He held that job until May 1997. On 12 September 1997 he commenced working as the licensee manager of the Lithgow Hotel in Main Street, Lithgow.
On 23 December 1998 he noticed the onset of left-sided sciatica after moving kegs of beer in the cellar. For that back pain he came under the care of Dr K Dunstan. Dr Dunstan referred the plaintiff to Dr Michael Ryan, an orthopaedic surgeon. The plaintiff first saw Dr Ryan on 20 January 1999. He remained under Dr Ryan's care, and initially conservative management was prescribed. The plaintiff however still had ongoing back problems. His services were terminated by the owners of the Lithgow Hotel on 24 October 1999. In February 2000 he commenced work as the manager of the Bushland Tavern at Taree. As I understand it that was part-time employment. He held that job until September 2002. It appears he gave up that work in order to undergo spinal surgery at the hands of Dr Ryan. On 20 September 2002 Dr Ryan performed an L5/S1 discectomy. After that the plaintiff did a course in occupational health and safety with a view to trying to pursue a career in that field, which would enable him to care for his back. However he obtained little work as an occupational health and safety advisor. In late September 2003 the plaintiff commenced his employment with the defendant.
I outlined the nature of his work with the defendant and his hours of work in the reasons given on Wednesday. The plaintiff later obtained concurrent employment. The evidence does not tell me exactly when the plaintiff obtained that concurrent employment although one question on p 46 of the transcript seems to indicate that it is thought he commenced this concurrent employment on 3 October 2008. The concurrent employment was with the Lakeside Tavern at Forster, an establishment near the major shopping centre of that town. His wife was the licensee of the Lakeside Tavern and there was a "package deal" in which his wife worked as the licensee and the plaintiff did administrative work. The plaintiff worked there from about 5am each morning for three hours, five days a week. After doing work at the Lakeside Tavern at Forster where the plaintiff and his wife were living, the plaintiff would then travel to Taree to do his work with the defendant. The plaintiff's work at the Lakeside Tavern was, "to do the tills, reconcile the poker machines, reconcile banking for the previous day, [and] do up the banking to be taken to the bank.". The plaintiff was, accordingly at the time of the incident on 18 September 2009, working 25 hours per week as a general proposition for the defendant and 15 hours per week for the Lakeside Tavern.
Antecedent to the injury on 18 September 2009, the plaintiff injured his left shoulder whilst working for the defendant. That occurred on 28 August 2008. The injury appears to have been a tear of the rotator cuff of the left shoulder. This issue only arose late in cross-examination. It needs to be considered later.
After the injury on Friday 18 September 2009, the plaintiff saw Dr Ray Worley at Forster on Saturday 19 September. He was referred for a CT scan which was carried out on Monday 21 September 2009. That is reported to show early degenerative changes at L1/2, early degenerative changes at L2/3, minor degenerative changes at L3/4, no abnormality at L4/5 but at L5/S1 there was, "Some slight left posterolateral broad-based bulging of the disc. This is bulging into the left lateral recess. ".
The plaintiff was referred by his usual general practitioner at Forster, Dr Nazrul Islam, back to Professor Ryan. The plaintiff saw Dr Ryan on or shortly before 16 November 2009. The plaintiff described his pain to Dr Ryan as being similar to that which he had experienced prior to surgery in 2002. On inspecting the CT scan, Dr Ryan thought that the report was, "quite understated". Dr Ryan thought that there was a large recurrence of the lumbosacral disc protrusion on the left-hand side which was displacing the left side of the thecal sac and in particular the S1 nerve root. The plaintiff had a left-sided antalgic gait and complained of symptoms in the left S1 distribution. Straight leg-raising on the left was positive at 20 degrees. Dr Ryan diagnosed a recurrent disc protrusion at the lumbosacral level as a result of the plaintiff's fall on 18 September 2009. That diagnosis is not disputed. Eventually the plaintiff underwent a further discectomy at L5/S1 at the hands of Dr Ryan on 18 December 2009.
The operation performed on 20 September 2002 was said to be an L5/S1 discectomy and there is no doubt that it was. When doctors perform "discectomy" it is very rare for them to remove the whole disc. Sometimes only the protruding nucleus pulposus of the disc is excised. Some surgeons try to excise the whole of the nucleus pulposus and leave the annulus fibrosus in situ as a form of residual shock absorber or space occupier between the two vertebrae involved. It would appear that in the discectomy of 20 September 2002, Dr Ryan only excised protruding nucleus pulposus. The disc was still there. Further nuclear material extruded from the previously torn disc on 18 September 2009 and that was what was excised by Dr Ryan on 18 December 2009.
Generally those undergoing spinal surgery take at least three months and usually six months before they return to work. The plaintiff however returned to work on 11 January 2010, about four, if that many, weeks after surgery. That is a remarkable achievement and is strong evidence of the plaintiff's work ethic. He returned to work initially doing 15 hours per week. On 16 June 2010 he increased his hours to 20 hours per week and on 26 July 2010 he returned to working 25 hours per week for the defendant and returned to his work with the Lakeside Tavern doing his usual 15 hours of work per week work there.
There is no dispute that the plaintiff is entitled to his economic loss from 19 September 2009 to 25 July 2010 for both his work with the defendant and for his work for the Lakeside Tavern. There is no claim for economic loss until 3 October 2012. On 3 October 2012 the plaintiff stopped working for the Lakeside Tavern. He and his wife had given notice to the Lakeside Tavern approximately one month prior to that time.
During the period of over two years that the plaintiff had returned to work with both the defendant and the Lakeside Tavern, he noticed a deterioration in his condition. He gave this evidence which is recorded on p 22 of the transcript:
"Q. Between 26 July 2010 and approximately September 2012, how was your back?
A. In that time at the start, my back felt reasonably good and then it started to - the pain went back down my leg. There was like a large - like, felt like a large football size pulsating thing in my back and it deteriorated from there. It went down, down, down as I went along the pain - the tablets, my drugs went up and yeah, it just became a misery coming down through there.
Q. How did you find working the two jobs, Lakeside Tavern and with the defendant between that period of time?
A. It became more and more difficult and my wife and myself, we spoke about it quite a bit that it is getting too much, should I - should we stop. We thought with exercise and so forth, with swimming, that, okay, we'd maybe strengthen it. I did lose a lot of weight to try to get that core strength back. I lost 14 kilograms and - but no, it did not - it just slowly got worse. It just slowly by slowly it got worse.
Q. Do you remember getting to the stage where you gave notification to the Lakeside Tavern that you were ceasing your employment?
A. Yes, we - my wife and myself decided that we would cease, give notice in September, one month's notice so they'd get another licensee and we could finish on the first, or the weekend finishing the third, I think it was, 3 October."
Later, in answer to a question I asked, the plaintiff said that after doing the work for the defendant, he just felt as if there were, "No fuel left in the tank" to do this other job with the Lakeside Tavern, even though it might physically have been easier than the work for the defendant.
That the plaintiff's condition was deteriorating can objectively be measured by the fact that on 23 November 2012, he was referred by Dr Islam to Dr Brian Hsu, a spinal surgeon. Prior to that referral, Dr Islam had arranged for a further CT scan to be performed on 27 September 2012 and that showed a continuing L5/S1 disc protrusion. Indeed it is suggested that there was extruded disc material abutting the nerve root now on the right-hand side and extending into the right lateral recess. Dr Hsu saw the plaintiff on 23 November 2012 at the Mayo Health Care Centre at Taree. Dr Hsu expressed the view that the plaintiff had "significant discogenic back pain and lumbar radiculopathy". Dr Hsu arranged for the plaintiff to have CT-guided epidural injection at L5/S1 as well as a MRI scan of the lumbar spine.
The plaintiff told Dr Hsu that the L5/S1 epidural steroid injection relieved him of about half of his symptoms which was good diagnostic information as far as Dr Hsu was concerned. He felt the plaintiff needed an L5/S1 fusion. That was indeed performed by Dr Hsu in a two-stage approach. That is referred to by Dr James Bodel, who was qualified by the plaintiff's solicitor, in this fashion:
"He was then referred to Dr Brian Hsu and he subsequently had two surgical procedures, an anterior interbody fusion at L5/S1 level on 13 June 2013 and then a week later on 18 June 2013 he had the posterior stabilisation with pedicle screws and rods."
After that major piece of surgery the plaintiff got back to work according to the histories I have read in a period of between four and six weeks, again a remarkably short period of convalescence.
The plaintiff initially returned to working for the defendant for 20 hours per week, being five hours on four days each week. By 1 October 2015 he managed to return to work with the defendant working 25 hours per week. However he has not returned to work with the Lakeside Tavern. The plaintiff's claim for economic loss can accordingly be seen to be the claim for loss of wages from both the defendant and the Lakeside Tavern up until 26 July 2010 then a continuing claim for loss of income from the job at the Lakeside Tavern since 3 October 2012. There was, of course, a further period off work when the plaintiff was undergoing spinal surgery at the hands of Dr Hsu. The parties have agreed about the total amount of the plaintiff's loss of wages whilst he was working with the defendant. There is no dispute about that. There is no dispute about the plaintiff's entitlement to his loss of wages from inability to do the job with the Lakeside Tavern up until 26 July 2010.
During the period between September 2009 and October 2015 the plaintiff was having ongoing problems with his left shoulder. Eventually he was advised by Dr Stuart Kennedy, an orthopaedic surgeon, to undergo arthroscopic acromioplasty with rotator cuff repair and biceps tenodesis. That advice was given to the plaintiff on 8 September 2014. However the defendant, through its insurer, denied liability for that surgery after arranging for the plaintiff to be reviewed by Dr Anthony Smith, an orthopaedic surgeon. Eventually the plaintiff's solicitors commenced on his behalf proceedings in the WCC seeking relief under s 60 of the Workers Compensation Act 1987.
For that purpose the plaintiff's solicitors prepared a statement which was executed by the plaintiff on 3 November 2016. It became exhibit 2. The statement has been carefully drawn. In general it refers to the injury to the plaintiff's left shoulder on 28 August 2008 as his "injury" using the singular. In [44] of the statement, the plaintiff has said that his condition steadily deteriorated over time without any additional accident or injury since 23 December 2008. [60] of the statement of this is:
"On 3 October 2012 I ceased work at Lakeside due to pain and discomfort from my injuries. I have not worked for Lakeside or any other employer with the exception of the respondent since this date."
In [14] of his statement the plaintiff described his back injury whilst working at the Lithgow Hotel. In [20] of his statement, the plaintiff described injuring his low back whilst working for the defendant. The only way of understanding [60] is to infer that it refers not only to the injury to his left shoulder which is always described using the word "injury" but also to include the various injuries the plaintiff has had to his low back.
Further in his statement the plaintiff says this:
"73. If not for my injuries, I would have continued to work at Lakeside for 15 hours per week. I have been unable to work at Lakeside or any other employer with the exception of the respondent since October 2012 due to my injuries.
74. Due to my injuries I'm only able to work for 25 hours a week. I want to be working a total of 40 hours per week with the respondent and another employer."
When giving oral evidence at Port Macquarie the plaintiff told me that he had undergone the surgery proposed by Dr Kennedy when the defendant admitted liability to pay for it and that it had been performed 13 weeks, that is, three months, prior to his giving evidence before me on 3 November 2017.
However no medical evidence has been put before me as to the plaintiff's left shoulder condition, other than what is contained in his statement, and I do not know the prognosis for the shoulder condition. The defendant says that the inference to be drawn from the statement is that the inability to do work with the Lakeside Tavern results from the injury to the shoulder. The plaintiff says on the contrary that his inability to do the work at the Lakeside Tavern results from his back injury because it was more disabling than his shoulder condition. With great respect to each side, the only proper inference to be drawn from exhibit 2 is that both conditions were contributing to the plaintiff's inability to do the work with the Lakeside Tavern. Accordingly, I believe it appropriate not to award the whole of the plaintiff's economic loss as far as the Lakeside Tavern is concerned from 3 October 2012 to the plaintiff but only half of that loss.
The question then becomes what ought I allow for the future. Exhibit Y tells me that the plaintiff's claim is based on a weekly loss of $375 per week calculated until the plaintiff's retirement age, 66 years. That has been discounted by learned counsel for the plaintiff by 5% because as I pointed out earlier this morning, the plaintiff is now 63 years old and it will not be long until his 66th year. The plaintiff still maintains that I ought award him all that is claimed for the future, that is his entire future loss of earnings referrable to his inability to do the work at the Lakeside Tavern. That is a matter that is clearly contested by the defendant. Mr Willis for the plaintiff referred me to the decision of Smith v Alone [2017] NSWCA 287 where Gibson DCJ discounted an award of damages by 35% for vicissitudes based upon the plaintiff's alcohol addiction. The Court of Appeal held that the extent of the discount was too great and reduced the discount to 25%: see [65] in the reasons of Macfarlan JA.
One would expect in the normal course of human affairs that the low back injury and problems resulting from it would be more disabling than the left shoulder condition. The fact the plaintiff worked on after the left shoulder condition until injuring his low back on 18 September 2009 is consistent with that. The plaintiff told me that the surgery performed at the end of July 2017 had improved his condition greatly. Also, as I understand it, the plaintiff is right-handed. Following the amelioration of the plaintiff's left shoulder by the surgery practised by Dr Stuart Kennedy I believe the extent of his symptoms would have abated as indeed the plaintiff said in his evidence.
However I cannot ignore the possibility, indeed the probability, that the plaintiff's inability to do the work with the Lakeside Tavern might still be affected by his left shoulder condition. I have formed the view that the proper way to approach the current case is not to apply the 5% discount suggested by Mr Willis but to apply a 25% discount to account for a competing cause for the plaintiff's inability to do the work with the Lakeside Tavern.
Those findings together with exhibit Y enable me to calculate the plaintiff's damages. The plaintiff's past economic loss of earnings with the defendant, which is not disputed, is $56,330. The part of the plaintiff's economic loss with the Lakeside Tavern that is not disputed, his loss until 26 July 2010, is $15,400. The remaining past economic loss with the Lakeside Tavern is $84,600. I halve that to $42,300. The total for past economic loss is $114,030.
I allow 11% of that for loss of past superannuation. That amounts to $12,543.
The plaintiff's future economic loss with the Lakeside Tavern but discounted at 25% rather than at 5% is $53,250.
11% of that sum is $5,857.
The Fox v Wood amount is $11,485.
The total of those sums is $197,165. The defence under the Workers Compensation Act 1987 is $63,804. The remainder is $133,361.
HIS HONOUR: Are any further reasons for judgment required on the question of damages?
VORBACH: Not from the defendant's point of view just costs your Honour.
GILBERT: In terms of reasons, no.
HIS HONOUR: For those reasons I give verdict and judgment for the plaintiff against the defendant for $133,361.
[SUBMISSIONS ON COSTS]
I order the defendant to pay the plaintiff's costs.
VORBACH: Your Honour I'm instructed to ask for a request to stay of the judgment for 28 days.
HIS HONOUR: Why?
VORBACH: So that my client can consider the prospects of An appeal.
GILBERT: It's opposed your Honour.
HIS HONOUR: There has to be evidence.
VORBACH: Your Honour I'm bereft of that unfortunately.
HIS HONOUR: The defendant asks for a stay. More than two decades ago, Kirby P, as he then was, pointed out that in order for a stay of proceedings to be granted there must be some evidence to support such an application. His Honour pointed out that in a workers compensation matter, an averment on oath of a claims manager that he feared that, if the award were paid but the award were eventually set aside, he would not be able to recover the award from the worker, such might be sufficient, if the worker was unable or did not put on any evidence to suggest otherwise. Here the defendant has sought a stay but tenders no evidence. In the circumstances the application is refused.
[2]
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Decision last updated: 06 April 2018