Humphries v Shoalhaven City Council

Nature of case 1The plaintiff, Mr Kevin Humphries, brings this claim against the defendant, Shoalhaven City Council ["the Council"], for damages in respect of back and shoulder injuries he claims to have sustained whilst carrying out work for the Council on 22 February 2008. The plaintiff claims these injuries were sustained during the course of his employment with a labour hire company that had assigned his labour to the Council. 2The plaintiff claims the Council's supervisor required him to lift a heavy concrete manhole cover, causing straining injuries to his upper spine and right shoulder. The Council disputed the factual circumstances of the claim. In the alternative, the Council alleged contributory negligence on the part of the plaintiff, as well as notional negligence on the part of the employer. 3The proceedings are governed by the Civil Liability Act 2002 ["CL Act"] and the Workers' compensation Act 1987 ["WC Act"].

Issues 4At the commencement of the hearing the parties were not able to provide a concise statement of the issues. The parties later provided a joint statement identifying 10 matters in issue: MFI "2". For convenience, those issues and the related sub-issues can be condensed into the following formulation: Issue 1 - Whether the injury occurred in the manner claimed by the plaintiff. My findings on this issue are set out at paragraphs [135] to [153] of my reasons; Issue 2 - Whether, having regard to the requirements of s 5B and s 5D of the CL Act, the defendant was in breach of the duty of care owed to the plaintiff, and if so, was the defendant negligent, and did such negligence relevantly cause the plaintiff's injuries. My findings on this issue are set out at paragraphs [154] to [207] of my reasons; Issue 3 - Whether there was contributory negligence on the part of the plaintiff, and if so, to what extent. My findings on this issue are set out at paragraphs [208] to [213] of my reasons; Issue 4 - Whether, and if so, to what extent for the purposes of s 151Z of the WC Act, would the plaintiff's employer, if sued, have been found liable for the plaintiff's injuries. My findings on this issue are set out at paragraphs [214] to [221] of my reasons; Issue 5 - The assessment of the plaintiff's entitlement to damages. My findings on this issue are set out at paragraphs [222] to [297] of my reasons; 5Consequential issues concerning the nature and extent of the plaintiff's injuries, the residual effects of any ongoing disabilities, and the effects of these matters on the plaintiff's earning capacity and his domestic activities, will be dealt with in those portions of my reasons that deal with damages, after I have outlined my findings on credit, and after I have identified the competing factual versions. The defendant no longer relies upon the limitation defence pleaded in paragraphs [13] to [16] of the statement of claim filed on 8 August 2011.

Credit 6Three witnesses gave oral evidence: namely, the plaintiff, his wife Mrs Donna Humphries, and Mr Brian Gillard, an employee of the defendant Council.

Plaintiff 7The plaintiff gave evidence on the first and second days of the hearing: T43 - T124. My initial impression of the plaintiff's evidence was that the entire range and content of his evidence was given without embellishment and was given in a restrained and unexaggerated manner. His evidence was credible on its face, and was not inherently improbable. 8Notwithstanding that initial impression, some of the plaintiff's evidence as to the date on which his injury occurred, and as to the manner of occurrence of his injury, was in conflict with the evidence given by his immediate work supervisor, Mr Gillard. In view of that conflict, it is necessary to weigh the competing factual versions in order to make an assessment as to which, if any of the two accounts, was more probably than not, correct. 9For the reasons that are apparent in my reasons for decision concerning Issue 1, having weighed those competing versions, I am persuaded that the plaintiff's account of the events in question is to be preferred as more likely to be correct, when compared with the competing account provided in the evidence of Mr Gillard.

Mrs Humphries 10Mrs Humphries gave evidence on the third day of the hearing: T125 - T144. Her evidence ranged over topics concerning the plaintiff's pre-injury health, his personality, his work, his domestic activities, her understanding of the events of the plaintiff's injury, and her perceptions and understanding of the changes in the plaintiff's situation and activities since his injury. I consider that Mrs Humphries gave honest, straightforward and credible evidence on these topics. I consider that she did so without embellishment or exaggeration. 11Although Senior Counsel for the defendant challenged the evidence of Mrs Humphries as to the correct date on which the plaintiff had reported to her that he was injured in the circumstances in question, and suggested to her, at T144.14, that she was making her evidence up, I considered that she convincingly denied that suggestion. 12The preceding suggestion put to Mrs Humphries was obviously based upon the anticipated evidence of Mr Gillard, in which he stated his belief as to the accuracy of the plaintiff's claim, and which seemed to be the basis of the liability dispute between the parties. 13Having considered the evidence of Mr Gillard on those matters, and having weighed his evidence as a whole, as explained in the paragraphs that immediately follow, and in my reasons concerning my findings in relation to Issue 1 as to the manner in which the plaintiff's injury occurred, I considered that the evidence of Mrs Humphries was both reliable and truthful. I have preferred her account to the evidence of Mr Gillard as to the timing of the plaintiff's complaints. In all other respects, I also considered the overall evidence of Mrs Humphries to be both reliable and truthful.

Mr Gillard 14Mr Gillard gave evidence on the second day of the hearing: T146 - T168. I formed the view that his evidence was unreliable on the critical matters in contention. I considered that his evidence should not be relied upon as a basis for displacing the evidence of the plaintiff and Mrs Humphries on critical matters. 15I formed that view because it was plain that Mr Gillard has a limited recollection of the events, and his evidence was based upon his belief as to what had or had not occurred, rather than being based upon an actual recollection of the events. 16There was an additional factor that caused me to doubt the reliability of the evidence of Mr Gillard. This was the fact that his evidence on critical matters seemed to be somewhat circumspect. On behalf of the plaintiff it was submitted that this circumspection or restraint may well have been influenced by a perception on his part, which he denied, that he needed to tailor the content of his evidence to avoid disciplinary consequences for himself. This restraint was suggested to be operating on his mind because his evidence was given in the presence of a Council official from the insurance and legal department. It was suggested that Mr Gillard was concerned about the content of his evidence to the effect that he had himself at times carried out heavy manhole cover lifting tasks in contravention of the defendant's manual handling and risk management policies. 17The plaintiff's submission in that regard was in part based on an assessment of Mr Gillard's demeanour. That is a subjective factor to be avoided in making findings concerning the credibility and the reliability of evidence. Recognising this requirement for caution, I have therefore ignored demeanour-based considerations, and I have instead focussed upon an analysis of the content of Mr Gillard's evidence in order to determine its reliability. 18That consideration of factual matters has led me to prefer the evidence of the plaintiff to that of Mr Gillard, as being the more reliable account of the two versions. My reasons for taking that view are set out in greater detail in my reasons for decision in connection with Issue 1 relating to my findings as to the manner in which the plaintiff's injury occurred.

Reports from liability experts 19The parties obtained expert evidence on the safety and foreseeability of harm issues. Mr Lloyd Griffiths had a long and practical industry-based experience in assessing work site safety issues. His report dated 18 April 2012 comprised Exhibit "C". Dr Neil Adams, a safety consultant and ergonomist, prepared three reports for the solicitor for the plaintiff, respectively dated 12 January 2012, 26 July 2012 and 3 November 2012. These formed part of Exhibit "N". The plaintiff also tendered a report from Dr Casey, a mechanical engineer, dated 26 October 2012, and obtained by the solicitor for the defendant. This also formed part of Exhibit "N". Except for Mr Griffiths, none of the authors of these reports were ultimately required to give oral evidence and no credit issues arose from their reports. I shall refer to those reports where it becomes relevant to do so.

Facts 20In the paragraphs that follow I set out my findings on the plaintiff's background circumstances, and his work and health history. Matters of contention which are the subject of issues calling for decision, such as the factual circumstances of the plaintiff's injury, the nature of his injuries, the medical assessments and sequelae, are identified in their competing forms as a precursor to the determination of those matters in the context of the consideration of the issues in which they arise.

Plaintiff's background circumstances 21The plaintiff was born in 1968. At the time of his injury he was in his fortieth year. At the hearing he was aged 44 years. He finished his schooling at the age of 15 years without obtaining any certificates. He pursued a variety of unskilled or semi-skilled occupations in Victoria and New South Wales, including stable worker, process worker, truck driver, painter and labourer. 22In 1999 the plaintiff moved to the Illawarra region of NSW and commenced employment with an entity described as Campbell Page Labour Hire. He remained in that employment until the time of the claimed injury. 23Before the subject injury, the plaintiff said he was in good health. In about November 2005 he sustained an injury of only temporary effect to his right side as a result of having been involved in an altercation in a club when a chair came into contact with his right side. This resulted in him suffering some bruising and discomfort in his right side, right ribs, and back. He went to see his doctor for an x-ray. He lost no time from his work as a result of that incident and was left with no lasting problems. At the time of the claimed injury, which is the subject of these proceedings, he did not have any physical impairments, and had no work restrictions, including with regard to his back or spine. 24In 2005, the labour hire company in question provided the plaintiff with some training for working in confined spaces and on "stop" and "go" traffic control management tasks to enable his labour to be hired out to the Council. It appears from the plaintiff's evidence that his employer had not trained him in safe methods of lifting, before being assigned to work for the Council. 25In early 2008, the plaintiff was assigned by his employer to work for Shoalhaven Water, an arm of the Council, to attend to the opening, inspection and clearing of sewerage main manholes, and if required, choked sewerage mains. The plaintiff received no particular training for this task, and was instead, under the direction of a Council supervisor in charge of the plaintiff's work detail. 26The plaintiff described the methods used in the course of such employment to lift the differing types of manhole covers at the various sites and installations maintained by the Council, and which he was required to work upon from time to time.

Claimed circumstances of injury on 22 February 2008 27As the circumstances of the plaintiff's claim of injury were disputed by the defendant, it is necessary to set out the competing versions of the events as described by the plaintiff and Mr Brian Gillard, his immediate supervisor, before making findings of fact concerning those circumstances, which are the subject of the determination of Issue 1. Plaintiff's account 28The plaintiff claimed that on the morning of Friday 22 February 2008, he and his supervisor, Mr Gillard, were carrying out sewerage inspection and maintenance work in the St George Basin area. He claimed that at about mid-morning they had stopped at a location for "smoko" time. He said that they remained at that property until lunch time and after they had been sitting around for a while Mr Gillard decided they should inspect some sewer mains by removing some manhole covers on the property, as part of preventive maintenance against potential sewer chokes in the area. 29The manholes in question were located on open ground that was considered to be level, having a slight gradient of a 1 metre rise over 40 to 50 metres of distance. The manhole covers maintained by the Council were of several types, weights and sizes. In the circumstances in question, the plaintiff claimed that he was required to lift a large concrete manhole cover that was later weighed by different persons, using different equipment, on different occasions, as being between about 75kg and 85kg. 30The plaintiff described the circumstances in which his injury occurred. He said that after taking their lunch break, Mr Gillard said something to the effect that they should look as if they were doing something, a colloquial expression, which from the context, I took to mean that the break was considered to be at an end, and that they should carry out some manhole inspections. 31The plaintiff said Mr Gillard then told him to lift the concrete lid of the manhole in question. To do so, the plaintiff first went to the truck and obtained a lifting tool known as a T-bar, which comprised a long steel rod with a key-like appearance at one end, and a lateral T-shaped bar section at the other. When the key end was inserted into the slit of a manhole cover, and turned to become engaged, it enabled the manhole cover to be lifted using a vertical manual lifting force applied to the T-shaped handle section of the tool. 32At the time, the plaintiff was a fit and strong man, and accustomed to hard physical work. He said that in compliance with Mr Gillard's request, he placed his feet in a bracing position around the perimeter of the manhole, engaged the key end of the T-bar with the manhole cover, and proceeded to apply an upward lifting force. He said that as he did so, the manhole cover did not dislodge, and during the course of this lifting manoeuvre he strained and felt a painful popping sensation in his spine, accompanied by pain in his right shoulder. At the time, he said he told Mr Gillard that he thought he had pulled a muscle. 33The plaintiff described a difficulty occasionally encountered when shifting such manhole lids because grass roots would tend to grow into the manhole in order to seek out moisture and this could result in the lid becoming tight. It was not always apparent that this would be a problem at a particular site until an attempt was made to lift the lid. 34The plaintiff said that after he encountered difficulty in shifting the manhole cover he told Mr Gillard he may have pulled a muscle, or something along those lines. Following that conversation, the plaintiff said that Mr Gillard, who is a much taller and larger man than the plaintiff, positioned himself over the manhole perimeter and then lifted the cover by himself. The plaintiff suggested the lid seal may have been loosened by his own lifting effort beforehand. The plaintiff said that following these events he did little else, for the afternoon until he went home, because of the discomfort he was feeling in his mid-upper back between the shoulder blades, and in his right shoulder. Mr Gillard's account 35Mr Gillard gave a different version of the events, based upon his belief and his differing, albeit limited recollection of what had occurred. 36Mr Gillard stated that the first he had heard of the plaintiff's claim of having been injured on Friday 22 February 2008 was a week later, on the following Thursday, when the co-ordinator of the Council's treatment plant approached him in the ganger's room and asked him if he knew anything about any injuries that had been sustained by the plaintiff on that particular day. Mr Gillard related his reply to the co-ordinator to the effect that he was not aware of the plaintiff having sustained any injury. Mr Gillard stated that nothing further was said or done about the matter at that point. 37Mr Gillard also stated that on the following Saturday morning, the plaintiff came to his home and had asked him to sign a form relating to the claimed injury. Mr Gillard said he responded by telling the plaintiff he could not do so because he had not seen or witnessed anything. He said he went on to tell the plaintiff that he should have said something to him at the time and the matter could have been taken up through the proper channels at the Council, including fixing up all the required paperwork. 38Mr Gillard confirmed that the Friday on which the plaintiff claimed he had been injured was a flex day for half of the Council's crew, so when he was on his shift, he would have been waiting for emergency calls, and in between times, he would have been going around checking sites by way of preventive maintenance. He described that preventive maintenance as involving the lifting of manhole covers and giving them a "haircut", this being a reference to trimming any infiltrating grass roots. 39Mr Gillard recalled that on the property where the plaintiff claimed he had been injured, there were three manholes. He agreed that in February 2008, he had been to that property with the plaintiff, but could not bring to mind a recollection of the particular day or a recollection of lifting a manhole lid, either as a two man lift or by lifting a manhole cover himself. 40Mr Gillard's recollection of the events of the day he went to the property with the plaintiff was qualified by what he believed had occurred rather than an actual recollection, as is evident from the following extract of his evidence in chief at T148.44 - T149.16: "Q. Do you remember in February 2008 going to any of the manholes on that block of land? A. Yes, one on the eastern corner. Q. Did you go there alone? A. No, not on that day, no. I was with - Kevin Humphries was with me. Q. Can you remember what was done by either you or Mr Humphries on that day when you got to this location? A. Yeah, I believe it was - I believe it was a sewer choke and we went there and inspected it and then we went and got the, the vehicle and brought it back into the - into the yard after getting it - undoing the gates. And once we were all set up, we proceeded to lift the lid. And I believe Kevin took the lid lifter and he set up in the lid while he was - while I was doing something else, getting something else ready. And that was that, so - then we lifted, lifted the lid and proceeded to put the jet washer in it. Q. How was the lid lifted? A. Well, I'm not sure even on, on that day, you know, because there was nothing there to really make me think about the day. I don't know whether Kevin and I lifted it together or when I'd finished what I was doing, saw the lid lifter and I lifted the lid up automatically on my own. I'm not sure. There's nothing that brought my attention to that day to remember." 41Clarification was sought of that evidence at T149.18 - T149.32 as follows: "HIS HONOUR Q. Mr Gillard, a couple of answers ago you began your answer by saying, "I believe I did such and such". Does that mean that you don't have a good memory of these events? A. No, I have a good memory but when, when this particular day in question - I was asked a week later what I did. Well, if, if something would have happened on that particular day, it would have brought my attention right to that point. I would have known at that time then whether both of us lifted the lid together or I did it on my own. That I'm not sure of because I was notified about this incident a week later. Q. Can you explain why you used the expression "I believe" to qualify your answer? A. No, not really." 42In his evidence-in-chief, Mr Gillard went on to state that he could not remember the plaintiff telling him he had hurt himself at that location. 43Mr Gillard gave evidence to the effect that at the site, on the day in question, he and the plaintiff, using the expression "we", had lifted the cover off a manhole, inspected the sewer main below, and used a jet washer, a high pressure gurney blaster, pointed upstream in the main, as preventive maintenance until a repair crew would attend the site on some future occasion. He said that once the main had been water blasted in that way, he was not sure whether they went to another site or stayed and looked around, but once they had finished, they went to another place: T150.43 - T151.15. He later agreed that in addition to the site that had been visited mid-morning, there would probably have been some three or four other sites in the same St George's Basin area which they visited that day and lifted manhole covers to inspect the mains: T152.7. 44In answer to questions put to him in cross-examination, Mr Gillard said he was unsure of the time they arrived at the site, and suggested it was some time between 9am and 11am, or mid-morning, having started work at the depot at about 7am. He was tentative in his answers as to whether this was the only site they had attended on the day in question, and his answers in that regard were based on what he assumed "would've been" the case, apart from the earlier described preventive maintenance runs: T151.24 - T151.40. 45Mr Gillard stated that it was not until some time in 2010 that he had for the first time, been asked to try and recall these events that had occurred in 2008. He denied that the reason he said he could not recall the events of the day was because he was concerned about being responsible for a breach of the safe lifting and occupational health and safety policies of the Council, the suggested implication being that he was reluctant to speak of such matters in his evidence because the officer of the Council who handled the "insurance / legal side of things" was present in court when he gave his evidence.

Initial appreciation and treatment of injuries 46The plaintiff said that at the time he felt the popping sensations in his spine as he described, he thought he had just pulled or strained a muscle. He was not someone who was quick to seek medical advice, and decided to rest and take things easy at home on the weekend. His wife massaged some proprietary liniment into the affected areas. His assessment was, that he had received a muscular strain, which was not uncommon after a hard day's labour and his expectation was that the effects of the strain would resolve.

Medical assessments 47There was medical evidence that pre and post-dated the subject injury. Pre-injury assessments 48On 10 April 2006, almost two years before the injury, the subject of these proceedings, the plaintiff had occasion to undergo an x-ray examination of his chest and thoracic spine at the referral of his general practitioner, Dr Lockhart. That x-ray was reported as showing the presence of some mildly anterior wedge shaped mid-thoracic vertebral bodies, with end plate irregularity and Schmorl's nodes, consistent with what was described as previous vertebral epiphysitis. Only minimal degenerative spondylitic changes were reported to be evident in the mid-thoracic region, and these were considered to be within normal limits for the plaintiff's age, which was then 38 years. 49In view of the plaintiff's evidence that he had no lasting problems from the 2006 incident which led to this x-ray being taken, I find that these x-ray findings were of no significance to the subject accident other than to provide evidence that at that stage the plaintiff had some underlying degenerative changes in his thoracic spine, which was not an unexpected finding in someone who had been performing manual work since his teenage years. 50The context of the x-ray examination on 10 April 2006 was that on 4 April 2006 the plaintiff consulted Dr Lockhart who wrote a note in his records which I interpret to read "Thinks back pain xrays". 51Dr Lockhart's notes contain other entries in the period 2 October 2003 to 23 June 2010. The only matters of apparent significance in those notes was first, an entry on 8 November 2005 involving an injury of the left knee at work which was noted as being a probable strained medial collateral ligament and secondly, a note on 14 November 2005 recording a fall in a boat with injury to the ribs on the left side, and bruising around the right eye. In each instance, the matters were not further explored in evidence. I conclude from this that these matters left the plaintiff with no lasting problems. Post-injury assessments 52Dr Lockhart's invoices indicate that he also saw the plaintiff for his injuries on 26 February 2008, 28 February 2008, 19 May 2008, 2 June 2010, 3 September 2010, 7 September 2010 and 23 September 2010. 53On 11 May 2010, at the referral of Dr Sahar Ibrahim, another general practitioner consulted by the plaintiff, he underwent an x-ray examination of his thoracic and lumbar spines. The thoracic spine was reported to show degenerative change as well as compression fractures in the mid-thoracic vertebrae with 30 per cent decrease of the vertebral body height, which was thought to relate to underlying osteoporosis. The radiologist suggested a CT scan of the thoracic spine. Spondylitic change with disc space narrowing was reportedly seen at the L4/5 and L5/S1 levels. 54On 25 May 2010, Dr Ibrahim provided the plaintiff with a certificate for Centrelink for his back pain due to stated thoracic compression fractures. The plaintiff has since had other intermittent consultations with Dr Ibrahim as well. 55On 7 June 2010, Dr Lockhart referred the plaintiff to Dr Al-Khawaja, a specialist neurological and spinal surgeon. The referral letter to Dr Al-Khawaja recounted a history of the plaintiff having injured his right shoulder and thoracic spine in a work accident in February 2008 when lifting a lid from a manhole. Dr Lockhart indicated that at the time, he considered the injury to have been of a soft tissue nature, for which he prescribed Naprosyn and physiotherapy. The referral letter to Dr Al-Khawaja made reference to the 2006 and 2008 thoracic x-rays and Dr Al-Khawaja was being asked for an opinion on further management of the problem. 56On 29 June 2010, the plaintiff was examined by Dr Al-Khawaja following the referral by Dr Lockhart. The record of the presenting problem was mid-thoracic pain with bilateral shoulder pain worse on the right side, with pins and needles sensation in the fingers of the right hand. Dr Al-Khawaja noted weakness in the plaintiff's mid-thoracic region, with severe limitation of right shoulder movements and decreased strength on the right side. He interpreted the x-rays as showing collapses of the upper thoracic vertebrae. Dr Al-Khawaja referred the plaintiff for MRI scans of the cervical and thoracic spines and the right shoulder. 57On 2 August 2010, the plaintiff underwent the MRI scanning as suggested by Dr Al-Khawaja. 58The cervical MRI scans were reported as revealing subtle disc protrusions at the levels C2/3 and C3/4 without encroachment. At the level C4/5 there was a reduction in disc height without encroachment. At the level C5/6 there was a central disc protrusion and subtle narrowing of the C6 neural exit suggesting the need for correlation with clinical features. 59The thoracic MRI were reported as revealing multilevel areas of decreased anterior vertebral body height between T6 and T9, particularly at T7 and T8.There was no distinct evidence of a fracture. Subtle disc changes were defined, particularly in the region of T9/10. Mild age related costo-vertebral degenerative changes were also seen in the thoracic spine and no significant compression fracture was identified. Investigation of the osteoporosis was suggested by the radiologist. 60On 7 September 2010, Dr Lockhart saw the plaintiff again and provided him with a Workcover medical unfitness certificate to 23 December 2010 for the stated diagnosis of fractures of the thoracic vertebrae with pain and mobility issues. 61On 9 September 2010, the plaintiff was re-examined by Dr Al-Khawaja following the MRI scans. Dr Al-Khawaja identified multilevel degeneration in the plaintiff's spine and stated that there was no evidence of an acute fracture. Dr Al-Khawaja considered that conservative treatment was required and suggested further investigations concerning osteoporosis. He suggested referral again if symptoms increased, as in the interim, he did not recommend a surgical treatment option. 62On 1 December 2010, at the request of his solicitor, the plaintiff was examined by Dr Alan Searle, a consultant orthopaedic surgeon. After reviewing the history, carrying out his own examination and reviewing the imaging investigations, Dr Searle expressed his opinion on the plaintiff's injury and its consequences as follows: "The slight wedging of the bodies of at least two of his thoracic vertebrae is almost certainly developmental, not one of them resembling a healed fracture. This minor developmental variant would be likely to make him slightly more susceptible to a thoracic ligament strain or aggravation of some thoracic spondylosis, and this is what happened in the lifting incident on 22/2/08. The previous incident in November 2005 also caused some temporary minor aggravation of the same area but it appears that recovered completely. The developmental slight wedging of the bodies is usually accompanied by the development of slight spondylosis in that region. The incident on 22/2/08 aggravated the pre-existing condition and this aggravation is persisting and permanent and causes a moderately severe degree of disability. Because of this he is permanently unfit for activities which require prolonged standing, lifting or repeated bending, twisting movements of the trunk, or regularly travelling moderate to long distances. It seems to me these restrictions would preclude any employment for which he is suited by reason of education or training or experience. If he is to obtain some form of sedentary work he would need retraining. With regard to prognosis there will be a gradual increase in the symptoms and disability with the passage of time as degenerative (sic) become prominent and then progress steadily. Treatment will continue to be conservative, as at present, and current treatment costs will continue. He should have a trial of other forms of medication particularly anti-inflammatories. This injury has caused pain and suffering and has impaired his social, domestic and recreational activities, and his employment prospects. ..." 63On 1 June 2011, at the request of the solicitor for the defendant, the plaintiff was examined by Dr Thomas Silva, a consultant orthopaedic surgeon. After reviewing the plaintiff's history, and after examining him and the imaging films of the plaintiff's spine, Dr Silva considered that the plaintiff had pre-existing "Schuermann's" (sic for Scheuermann's) disorder of the thoracic spine with Schmorl's nodes. Dr Silva stated his clinical impression as being that the plaintiff's underlying Scheuermann's disorder was probably aggravated by the work incident on 22 February 2008, but the aggravation had resolved. He considered that any work restrictions on the plaintiff concerning heavy lifting, would be on account of the pre-existing Scheuermann's disorder. 64On 27 October 2011, the plaintiff consulted Dr Bessie Wayoe-Yamba, a general practitioner in Ballarat. She took a history from the plaintiff and expressed the view that the plaintiff's back condition required him to use pain relieving medication on an as need basis. She prescribed Panadeine Forte tablets four-hourly when required. 65On 3 May 2012, at the request of the solicitor for the defendant, Dr Silva provided a supplementary report, in which he answered a series of questions posed to him by the solicitor for the defendant. The letter of request was not included in the tender, so an ambiguity arises in the response, where Dr Silva refers to "statements under paragraphs 1 to 7." Dr Silva stated that in his view, it was more probable than not that the plaintiff did suffer an aggravation of his pre-existing Scheuermann's disorder of the thoracic spine. 66Dr Silva also provided comments on the safety of the plaintiff's system of work. I will give separate consideration to views of Dr Silva on the safety of the system of work that led to the plaintiff's injury. 67Dr Silva expressed the opinion that the plaintiff's pre-existing Scheuermann's disorder would have, in any event, made him unsuitable to perform heavy and/or repetitive labouring duties, and at a time "earlier in his career as a labourer". He went on to state that the plaintiff's current back condition would be the same without the intervention of the incident on February 2008. He said he based that view on his clinical observations that were set out in his original report. In my view, the underlying details of his reasoning for these opinions were not adequately explained according to the requirements of the Uniform Civil Procedure Rules 2005 ["UCPR"] Sch 7, cl 5(c). 68On 5 July 2012, at the request of his solicitors, the plaintiff was examined by Dr Derrick Billett, a consultant orthopaedic surgeon. Dr Billett took a history from the plaintiff and set out those matters and his findings on his examination of the plaintiff, as set out in his report. He also reviewed the relevant imaging films. 69Dr Billett considered that on 22 February 2008, whilst lifting a heavy manhole cover, the plaintiff sustained soft tissue injuries to his neck, right shoulder, upper thoracic region, as well as discal problems in relation to his cervical and thoracic spines. He considered these injuries aggravated underlying age related, pre-existing degenerative changes in the plaintiff's spine. He considered the effects of the aggravation to be ongoing. He expressed the view that the prognosis was guarded, and that the plaintiff was not capable of resuming his pre-injury work duties. 70On 6 July 2012, at the request of his solicitors, the plaintiff was examined by Professor Lorraine Dennerstein, a consultant psychiatrist. Dr Dennerstein took a detailed history from the plaintiff as set out between pages 3 and 9 of her report. After reviewing the medical reports that had been provided to her, which from her discussion at pages 9 to 10 of her report, seem broadly equivalent to the medical evidence tendered in the proceedings, she expressed the view that the plaintiff had a chronic pain disorder and had developed an adjustment disorder with mixed anxiety and depressed mood. She said this was characterised by feelings of frustration, sadness, irritability, anger, anxiety, insomnia, social withdrawal and increased alcohol use. She stated that the plaintiff's psychological symptoms may worsen, as they were secondary to his physical symptoms. 71On 29 July 2012, Dr Searle provided a supplementary report to the plaintiff's solicitor, after reviewing the report of Dr Silva dated 1 June 2011. Dr Searle expressed his disagreement with a number of aspects of the opinion of Dr Silva as expressed in Dr Silva's report. I will return to an evaluation of these areas of disagreement prior to stating my findings concerning the cause of the plaintiff's ongoing disabilities.

Resolution of conflicting medical opinions 72The conflicting expert medical opinions in evidence in this case have to be reconciled as they cannot stand together. This task presents difficulties for analysis where the parties ultimately determined, despite earlier indications to the contrary, that they would not call explanatory oral evidence from the medical experts whose reports were tendered. Notwithstanding, such difficulties, I am required to engage in this task as best I can with the available materials that the parties have tendered. 73The task, which leads to the preference of one body of opinion to the other, involves an examination of the reasoning process of the experts whose reports are tendered: Dasreef Pty Ltd v Hawchar [2011] HCA 21, (2011) 243 CLR 588, at [92]; K & M Prodanovski Pty Ltd v Calliden Insurance Ltd [2012] NSWCA 117, per Meagher JA at [25]. 74In embarking upon this analysis, it is useful to identify the plaintiff's pre-injury baseline condition, which comes from the evidence of the plaintiff and his wife, and from the other tendered medical evidence. 75In this regard, there was nothing within the evidence of either the plaintiff or his wife to indicate that he knew that he had been harbouring a debilitating or work limiting condition of his spine. Neither the plaintiff's work history, the description of his pre-injury domestic activities, nor the evidence of Mrs Humphries, pointed to an awareness of the presence of any underlying problem with his back that might have an adverse impact upon his ability to carry out heavy work, or work requiring strength, mobility and physical dexterity. 76Due to the plaintiff's pre-injury personality, his pre-injury pattern of medical attendances had been sporadic. This may very well have been due, using his own self-effacing words, to his disposition that he "was not a fan of doctors" or because he had very few problems of concern to him. In considering the significance of that evidence, it seems to me that the meaning the plaintiff was seeking to convey was that generally, he was not a person prone to seeking out medical attention for minor ailments or injuries which would obviously heal themselves if nature was left to take its course. 77That said, there were some documented instances of medical attendances by the plaintiff between 2003 and 2008, including referrals for x-ray examinations. None of the notes of the general practitioner consultations relating to those referrals made reference to any pathology of the plaintiff's thoracic spine. One of those earlier radiology reports from those x-ray examinations were tendered in evidence in these proceedings. 78Having accepted that the plaintiff's evidence that he was pain free and disability free in his thoracic spine immediately before the February 2008 incident, where his evidence in that regard was not contradicted by other evidence, and where his evidence on this subject was not otherwise improbable, it is necessary to review the medical opinions in the light of that finding. 79Against that background, it is necessary to identify the polarised opinions within the expert medical opinions. There is a body of expert orthopaedic opinion comprising the reports of Dr Searle and Dr Billett, which relate the plaintiff's current problems to the work incident on 22 February 2008. Against that body of evidence is the expert orthopaedic opinion of Dr Silva, to the contrary. These competing analyses need to be weighed. The following paragraphs summarise and analyse those opinions in the order in which they have evolved. Dr Searle 80Dr Searle's report of 4 December 2010 reviewed x-rays and MRI scans of the plaintiff's spine. Dr Searle made no mention of a diagnosis of Scheuermann's disorder, but referred to pre-existing spondylosis of the thoracic spine, which in his opinion, was aggravated by the incident of 22 February 2008, and that such aggravation was persisting, permanent in its effect, and which continued to cause the plaintiff a moderately severe degree of disability. This opinion serves to explain the plaintiff's ongoing symptoms. Dr Silva 81On 27 May 2011 Dr Silva carried out his orthopaedic assessment of the plaintiff. The essence of his 1 June 2011 opinion provided to the solicitor for the defendant was that the x-ray and MRI scans of the plaintiff's thoracic spine revealed evidence of pre-existing classical Scheuermann's disorder of the mid-thoracic vertebra. 82Dr Silva was of the opinion that the incident of 22 February 2008 probably aggravated that condition. He went on to express the opinion that the effects of the aggravation had since resolved, leaving the plaintiff with a good prognosis. Dr Silva's opinion, which was given 3 years following the plaintiff's injury, did not indicate the actual or likely timing of such resolution. Unlike Dr Searle's report, this report does not explain the rationale for the plaintiff's ongoing symptoms. 83The solicitor for the defendant sought clarification of Dr Silva's opinion. Dr Silva's 3 May 2012 letter of response to the solicitor for the defendant addressed a series of 8 questions that were raised with him by the defendant's solicitor. None of those questions raised the likely timing of the resolution of the aggravation of Scheuermann's disorder, and Dr Silva made no comment on that issue. 84However, Dr Silva went on to state that because of the underlying Scheuermann's disorder, the plaintiff would have been unfit to perform heavy lifting and repetitive bending activities earlier in his career as a labourer, the implication being, this was so before the subject injury. Dr Silva also went on to say that the plaintiff's current back condition would have been the same, without the intervention of the February 2008 incident. Dr Billett 85Dr Billett's report of 5 July 2012 also reviewed the radiological evidence. He described the degenerative changes in the vertebrae of the plaintiff's thoracic spine as being minor. He based his reported conclusions on what he referred to as the evaluation of the objective findings concerning the plaintiff. He described the plaintiff's condition as still presenting with evidence of the ongoing aggravation of the degenerative changes in the thoracic spine. He expressed the view that the plaintiff was not capable of resuming his pre-injury duties, and he should limit his activities. Like Dr Searle's report, and unlike Dr Silva's report, this report also explained the basis of the plaintiff's ongoing symptoms. Definition of Scheuermann's disorder 86Dr Silva was the only medical expert to identify the presence of Scheuermann's disorder of the plaintiff's spine. He described this as a classical presentation. That view was based upon his examination of the radiological evidence. No other medical or radiological report tendered in these proceedings made reference to the presence of Scheuermann's disorder in the plaintiff's thoracic spine. 87Since the term Scheuermann's disorder was not defined in any of the medical evidence, in order to achieve a background understanding of the context of it's use in Dr Silva's reports, recourse was had to a range of standard medical dictionaries in common use, in order to identify a broad commonly accepted definition of the term. Such recourse is not a substitute for, or an augmentation of the evidence: Strinic v Singh [2009] NSWCA 15, at [64]. 88One such definition is osteochondrosis of the vertebrae : Dorland's Illustrated Medical Dictionary, 29th Ed, WB Saunders, 2000, p 1605. In the same dictionary, osteochondrosis is defined as a disease of the bony growth centres in children in the form of a kyphosis, which begins as a degeneration followed by a regeneration or recalcification. In the location of the vertebrae, it is called vertebral epiphysitis: Dorland's Illustrated Medical Dictionary, p 1287. I note in passing, that kyphosis was specifically excluded in the medical examination of the plaintiff in this case. That said, the definitional inclusion of kyphosis in Scheuermann's disease has not been used as a factor for weighing Dr Silva's report: Strinic v Singh [2009] NSWCA 15, at [64]. 89Another definition is epiphysial aseptic necrosis of the vertebral body: Stedman's Medical Dictionary, 26th Ed, Williams & Wilkins, 2000, p 503. In the same dictionary, epiphysitis is defined as an inflammation or excrescence of the epiphysis, which is part of a bony structure developed from a centre of ossification and separated by a layer of cartilage: Stedman's Medical Dictionary, p 586. 90Spondylitis is defined as an inflammation of the vertebrae, a form of degenerative joint disease of the affected portion of the spine: Dorland's Illustrated Medical Dictionary, p 1683. 91These definitions, when read broadly, seem to indicate that where the competing bodies of expert evidence refer to either Scheuermann's disorder on the one hand, and degenerative spinal disease on the other, they are most probably referring to the same entity, but by different nomenclature. Analysis of conflicting opinions 92Each of the medical experts acknowledged the Expert Witness Code: Schedule 7 to the Uniform Civil Procedure Rules 2005. In presenting expert opinions in accordance with that code, a fundamental duty of an expert witness is to provide reasons in the body of the report, or in an annexure, for each expert opinion expressed in the expert's report: UCPR, Sch 7, cl 5(c). 93On behalf of the plaintiff, it was argued that the report of Dr Silva did not comply with that obligation, whereas the reports of Dr Searle and Dr Billett were submitted to be relevantly compliant with the Code. It was submitted that little weight should be given to the opinions of Dr Silva in such circumstances because his opinions were "ipsa (sic for ipse in the case of the opinion of a male) dixit" which in context, and in plain English, essentially means that Dr Silva's views were based upon an unsupported or unexplained assertion. 94In contrast, the defendant argued that since Dr Searle and Dr Billett had been provided with the reports of Dr Silva for comment, and there was no expressed disagreement with some aspects of the views expressed by Dr Silva, such testamentary silence should be taken to mean that Dr Searle and Dr Billett could not relevantly contradict those aspects of Dr Silva's views: Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298. 95I consider that the defendant's submission in that regard is too simplistic for acceptance. Dr Silva's views, and the views of the other experts for that matter, must still be analysed for their cogency in the context of the disputed issues, in accordance with the well accepted requirements concerning the content of expert opinions purporting to be expressed in accordance with the rules: Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705; Dasreef Pty Ltd v Hawchar [2011] HCA 21, (2011) 243 CLR 588. 96Turning then to the examine the opinions of Dr Silva, and assuming that Dr Silva's reference to the presence of Scheuermann's disorder in the plaintiff's thoracic spine is a reference to the same degenerative condition referred to by the other experts, but not by that name, Dr Silva's opinion as to the consequences of the plaintiff's injury must be evaluated. 97The point at which the experts are in agreement is that there has probably been an aggravation of an underlying degenerative condition in the plaintiff's thoracic spine, by whatever name that degenerative condition happens to be described. 98The point at which there is a divergence of opinions amongst the experts is the consequences of the aggravation, including the duration of the aggravation. 99In his first report, Dr Silva simply stated that the aggravation to the plaintiff's thoracic spine has resolved. His reasons for that view are unstated and therefore his reasons for that view are entirely opaque to analysis. Accordingly, I consider that his opinion in that regard has been proffered with disregard to the requirements of UCPR Sch 7, cl 5(c). 100In proffering the view that the effects of the aggravation have resolved, Dr Silva has not dealt with or explained the plaintiff's continuing experience of pain between his shoulder blades, extending from the level T1 to T10 in his thoracic spine. In that context, Dr Silva has not stated that it was not feasible for the plaintiff to be reporting the continuing presence of such pain, in circumstances where he suggests that the aggravation ceased to have effect, especially where there has been no additional trauma, and before the incident in question, the plaintiff did not have these problems. 101Instead, in his first report, Dr Silva made some qualified comments which could be read as implied criticism of the plaintiff's history and presentation. 102In that regard, Dr Silva made reference to the plaintiff having "recent callosities and work staining on both palms suggestive of recent manual activity probably of a heavy nature", and the presence of "significant pain behaviour features ... (with the presentation being) ... essentially non-organic." The defendant relied upon those comments by Dr Silva to suggest the plaintiff was not as severely affected as he has claimed. In my view, those comments should not be read as being critical of the plaintiff without there being some further explanation from Dr Silva as to what was actually discussed with the plaintiff concerning these matters during the consultation: Mason v Demasi [2009] NSWCA 227. 103In my view, without further explanation, those comments by Dr Silva should not be read critically against the plaintiff. Dr Silva's report does not state why he considered the callosities to be of recent rather than of longstanding origin. In this regard, I accept Dr Searle's criticisms of Dr Silva's view, as set out in Dr Searle's commentary dated 29 July 2012. 104Applying a simple logical analysis to Dr Silva's views, the suggestion the plaintiff has been doing manual work does not necessarily mean that such assumed work involved placing strain on the plaintiff's thoracic spine. The mere suggestion that the assumed manual work was probably heavy is necessarily speculative. The observation of stained palms does not necessarily support Dr Silva's conclusion without an understanding of how such staining actually occurred. These are all matters that should have been raised with the plaintiff by Dr Silva as a matter of procedural fairness in order to consider any comments made by the plaintiff, by way of explanation for these findings: Mason v Demasi. Absent evidence of such a discussion, I consider that very little weight should be placed on this aspect of Dr Silva's opinions. 105In Dr Silva's second, or commentary report, without further examination of the plaintiff, and without taking any further history from him, he has expressed two further and significant views in that commentary, which have no identifiable basis in cogent reasoning. 106The first of Dr Silva's such additional views was that the plaintiff had become unfit to do heavy lifting and repetitive bending at a point in time earlier in his career because of the pre-existing presence of Scheuermann's disorder. 107I find myself unable to accept that opinion of Dr Silva because, without further reasoning, it seems inconsistent with the history obtained from the plaintiff, which I accept, of him having in the past carried out such work both at work and at home without difficulty or incapacity before the subject injury. Dr Silva has not cogently explained how the plaintiff could have achieved such activity without debilitating pain when unfit for those tasks in the pre-injury period. A court should not be left to speculate on such an important matter. I therefore place no weight on that aspect of Dr Silva's opinion. 108The second of Dr Silva's additional views, was that the plaintiff's current back condition would have been the same even without the intervention of the February 2008 incident. Dr Silva said he based that opinion on his clinical observations that he had made in his original report. Dr Silva's original report identified his diagnosis to be a clinical impression of aggravation of Scheuermann's disorder, but resolved. 109In order to understand this aspect of Dr Silva's opinion, it is relevant to again refer to his summary of the clinical examination he carried out of the plaintiff on 27 May 2011. It is necessary to do so in order to determine whether the expressed opinion is supported by the products of the examination to which he referred. Dr Silva's summary of that clinical examination is as follows: "PRESENT COMPLAINTS Pain between the shoulder blades and he told me that the pain extends from about T1 to T10 of the spine and over the right shoulder. EXAMINATION Ms (sic for Mr) Humphries stood at 5'9" and weighed 80 kg. He was not in any distress and moved with ease and sat comfortably. He undressed and dressed himself with ease but it was noted that his wife was helping him with the sock later on after the examination. He had recent callosities and work staining on both palms suggestive of recent manual activity probably of a heavy nature. He moved with ease and had a normal gait. He was able to walk on his toes as well as on his heels and squatted fully. However, during the rest of the clinical examination there were significant pain behaviour features and the clinical presentation was essentially non-organic. Although the cervical, thoracic and lumbar curves were normal with no spinal muscle spasm in the cervical and thoracolumbar areas, he restricted spinal mobility in all three sections in a symmetrical fashion to about half the normal range and that was non-organic. Right and left shoulder abduction and flexion were also restricted to 90° but there was no rotator cuff tenderness or scapular tenderness. Straight leg raising was 70° in each leg with a negative sciatic nerve stretch test and there was no neurological deficit in the upper limbs or lower limbs. I think his clinical presentation is essentially non-organic in the context of recent callosities and work staining of both palms. I think his cervical, thoracic and lumbar spines are in DRE Category I." 110If the relevant products of clinical examination Dr Silva had in mind were the callosities and work stained palms, that is clearly a fallacious and unfair means by which to infer that the aggravating effects of the work injury have ceased to have effect. 111Nowhere does Dr Silva actually suggest that the plaintiff's ongoing complaints of pain are not genuine. He does not provide any reasons for the suggestion that, although the plaintiff continues to experience the pain as he described, such pain is not due to the aggravation of the pre-existing condition by the incident in question. Accordingly, I accept Dr Searle's 29 July 2012 criticisms of those opinions expressed by Dr Silva. 112Dr Silva did not explain what he meant by the presence in the plaintiff of pain behaviour features. A court should not speculate on the meaning of such an expression in order to draw an inference that the plaintiff's complaints are not genuine. 113Dr Silva's use of the description "essentially non-organic" to describe the plaintiff's clinical presentation is necessarily ambiguous. It does not directly suggest that the plaintiff is not genuine in his complaints. I therefore do not read that expression as being critical of the plaintiff's presentation in May 2011, especially when, in July 2012, the plaintiff has been diagnosed by Dr Dennerstein as having developed an adjustment disorder, with mixed anxiety and depression, which includes features such as somic anxiety. This is so especially where the unchallenged evidence is that these problems are related to the incident of 22 February 2008. The clear inference is that these problems experienced by the plaintiff were present at the time of Dr Silva's examination. 114On analysing the reports of Dr Silva as outlined above, I consider that the reasons for his opinions that the defendant relies upon as being critical of the plaintiff's claim are not adequately identified, explained or justified. This must necessarily significantly diminish any weight that such reports would otherwise be given. 115Clearly, the opinions of Dr Silva are diametrically opposed to the views expressed by Dr Searle and Dr Billett. Shortly stated, the plaintiff submitted that the opinions of Dr Silva should not be accepted because they are not acceptably explained according to the well known and accepted compliance requirements for expert evidence: Sch 7 cl 5(c); Makita (Australia) Pty Ltd v Sprowles; Dasreef Pty Ltd v Hawchar. 116Turning then to the opinions of Dr Searle and Dr Billett, the essential question to be addressed in assessing their respective reports, is whether the opinions contained in their reports are adequately explained, and whether their opinions are consistent with the known, unchallenged and found facts. 117Dr Searle's opinion clearly stated that the aggravation injury sustained by the plaintiff on 22 February 2008 was persisting in its effects and was permanent, causing the plaintiff to continue to suffer a moderately severe amount of pain. Dr Searle's opinions to that effect made perfect sense when compared to Dr Silva's opinions which failed to adequately explain or deal with the plaintiff's ongoing complaints of pain, in the context of an asserted resolution of the aggravation injury. In contrast, Dr Searle's reasoning was not at all flawed. 118Dr Searle very clearly explained that the underlying pre-injury developmental variant that was evident in the plaintiff's thoracic spine, made him susceptible to a thoracic ligament strain or aggravation of underlying thoracic spondylosis. 119He similarly explained that the earlier incident, which he referred to as having occurred in 2005, in which the plaintiff suffered a temporary minor aggravation in the same area, appeared to resolve completely before the incident which is the subject of this claim. The variation in dates between 2005 and 2006 was not material. From the context of Dr Searle's report, his opinion was obviously based upon the plaintiff's history of having recovered from that earlier incident, an historical account that I have accepted. It is also noteworthy that Dr Searle stated that the plaintiff gave no impression of having exaggerated or over-reacted at the time of his examination. In my view, there were no issues of concern on the face of Dr Searle's report that caused doubt as to the acceptability of his opinions or concerning non-compliance with the Expert Witness Code 120The opinion of Dr Searle, to the effect that the symptomatic effects of the subject aggravation of the plaintiff's spine will continue and get worse with the passage of time, stands to be evaluated according to events that occurred after his December 2010 examination of the plaintiff. 121This then leads to an evaluation of the opinion of Dr Billett, as that opinion was based on a more recent examination of the plaintiff in July 2012, which post-dated Dr Silva's examination by just over a year. 122Dr Billett made no critical comments concerning the consistency of the plaintiff's presentation, or the plaintiff's compliance with the requirements of the physical examination that he conducted. After reviewing his findings on examination and the relevant radiology, Dr Billett identified evidence of ongoing aggravation of pre-existing or underlying degenerative changes, such aggravation being due to the injury on 22 February 2008. Dr Billett clearly based his opinions on the history and his clinical findings, and in particular, on the plaintiff's ongoing complaints of pain, which I have accepted. In my view, there were no issues of concern on the face of Dr Billett's report that caused doubt as to the acceptability of his opinions or concerning non-compliance with the Expert Witness Code. Conclusion on conflicting medical opinions 123Having evaluated the conflicting medical opinions of Dr Silva on the one hand, and the opinions of Dr Searle and Dr Billett on the other, I have concluded that I do not accept Dr Silva's opinions for the reasons I have already identified. Instead, I prefer the reasoned opinions of Dr Searle and Dr Billett. When all these reports are analysed, the opinions of Dr Searle and Dr Billett are consistent with each other over the time span of the respective examinations, and they are consistent with the history provided by the plaintiff. As such, in my view, they preponderantly outweigh the contrary opinions of Dr Silva in an acceptably reasoned manner, in conformity with the Expert Witness Code, unlike the opinions of Dr Silva, as I have identified.

Disabilities 124The fundamental principle of assessment of injury and disability is that the defendant must take the plaintiff as he is found, which includes with any vulnerability or susceptibility to aggravation of any underlying condition from a further tortious injury. 125In a case where a defendant seeks to avoid liability for an aggravation injury to an underlying condition, it is incumbent upon the defendant to show, through acceptable evidence, that any ongoing complaints experienced by the plaintiff are as a result of the underlying condition, and not due to an aggravation of asserted temporary duration: Watts v Rake [1953] HCA 18; (1953) 89 CLR 200; Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164. 126In this case, the defendant has sought to achieve this through the evidence of Dr Silva. For the reasons I have given, I have not accepted that evidence. In my view, based upon the opinions of Dr Searle and Dr Billett, the plaintiff's complaints of pain, discomfort, restrictions and inabilities due to his thoracic injury, have been materially caused by the incident of 22 February 2008. 127Given that I have accepted the plaintiff as a credible witness, I am satisfied that the medical practitioners who have provided reports following their examinations of the plaintiff, have accurately summarised his complaints. I take those summaries to be evidence of his injuries and disabilities: Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25, per Heydon JA at [70]; s 60 of the Evidence Act 1995. 128I am satisfied that the plaintiff continues to suffer from continuing recurring problems which constitute disabilities that are as a result of the injury on 22 February 2008. 129The plaintiff's ongoing physical problems comprise pain, discomfort and restriction of movement in his thoracic spine and in his right shoulder. This pain is aggravated by sitting in an awkward position, standing for prolonged periods, or when leaning forward and carrying out lifting and bending movements. His pain is also aggravated by jolting movements when seated in motor vehicles that are poorly sprung or being driven on an uneven surface. He is no longer able to drive trucks. He also has intermittent paraesthesia in his right arm. His thoracic pain becomes aggravated by relatively minor activities. He is unable to carry out the normal outdoor activities of a domestic nature that he did without difficulty before he was injured. He is unable to resume full physical, social and leisure interaction with his children. 130The plaintiff's ongoing disabilities of an emotional and psychological nature include anger, disappointment, frustration, palpitations, insomnia, disturbed sleep, irritability, impatience, anxiety, lowered mood, social withdrawal, and depression. The perpetuation of these symptoms is linked to the ongoing physical complaints, and the severity of those complaints. There is no end in sight for these problems.

Employment effects 131The plaintiff claims that as a result of his continuing problems, he has been unable to continue working in physically demanding jobs such as his pre-injury employment. He has tried alternative employment and found this too difficult to cope with on account of his back pain. I will return to this topic in my evaluation of the plaintiff's claim for loss of earnings and loss of earning capacity.

Domestic effects 132The plaintiff claims that as a result of his continuing problems he has been unable to continue his pre-injury physically demanding domestic activities. I will return to this topic in my evaluation of the plaintiff's claim for past and future domestic assistance.

Mitigation 133In my view, the plaintiff has taken reasonable and adequate steps to seek out mitigation of his post-injury problems. In the early phase of his post-injury recovery, the plaintiff adopted a stoic approach and did not seek out frequent medical consultations. This was in part due to his stoic disposition, and also because he was embarrassed at not being able to pay for his medical consultations. Neither his stoicism nor his impecuniosity should be held against him in that regard. He has seen doctors who have suggested conservative treatment. He takes pain-killing medications as prescribed. He has sought out alternative employment without sustained success, which is not surprising given his complaints of pain when he had to persevere with work that caused him to suffer back pain to the point that he could no longer cope with that work. In all the circumstances, I am satisfied that the plaintiff has taken reasonable steps to mitigate his losses and damage that flow from the injury in question.

Probable life expectancy of the plaintiff 134In assessing the plaintiff's entitlement to damages, there is nothing from within the evidence that reasonably suggests that the usual statistical median life span would not apply to his circumstances for the purpose of projection of future losses. At age 44 years, the plaintiff has a probable life span of 41 remaining years. There is no evidence that directly indicates the plaintiff's life span would be foreshortened by early mortality. The 5 per cent multiplier for 41 years is 924.8

Consideration of Issue 1 - Facts of accident 135Having considered the differing factual accounts provided by the plaintiff and by Mr Gillard, I consider that the plaintiff's account is more likely to be correct. Due to his limited recollection, I consider that Mr Gillard's account is less likely to be correct. In reaching that view, it is still necessary to determine, on the balance of probabilities, whether the plaintiff's account is correct and should be accepted. 136It was common ground that the plaintiff and Mr Gillard set out to do work at Vincentia, in the St George Basin area on the morning of Friday 22 February 2008, as is evidenced by the Site Specific Risk Assessment document prepared by Mr Gillard at about 8am that day: Exhibit "2". The job to which that assessment related was stated to have involved low manual handling risks, according to the details completed by Mr Gillard in Section 2 of the document. 137In view of the evidence of Mr Griffiths, concerning weight limits for manual lifting tasks, it is difficult to accept that manual handling risks concerning the lifting of manhole lids that were required to be lifted in that job, were correctly assessed as being low, where those lids were of the kind that weighed about 75kg - 85kg. 138Curiously, the risk assessment form in question was ticked to signify that all staff had relevant training. In so far as the form was concerned, this comment was obviously intended to apply to the plaintiff, as he was part of the team on site. However, it transpired that in completing this form, Mr Gillard had incorrectly assumed the plaintiff had been trained in safety procedures, when he had not. The form does not make it clear as to how much time that early job occupied, or at what time the job was completed, but the plaintiff estimated that the last job they did before taking a break may have taken some 5 to 10 minutes to complete. 139Where the respective accounts of the events of the day differ is that the plaintiff has a specific recollection of having an extended "smoko" break which had morphed into the lunch break, following which, at about 1pm, it was decided that there should be inspections of manholes as part of preventive maintenance in the area, and at about this time, in the course of lifting a manhole cover, he injured himself as he described. In contrast, Mr Gillard has no recollection of the plaintiff having injured himself or having made a complaint of injuring himself in the manner he described. This may have been because, it appears, no risk assessment form had been prepared by Mr Gillard in relation to those tasks. 140The plaintiff's account of having had an extended break from mid-morning was not improbable on a day where only a skeleton crew on duty, with few jobs to attend to in the area. The plaintiff's evidence to the effect that Mr Gillard had decided to end the break by requiring that some inspections be carried out of manholes in the vicinity as preventive maintenance in order to look busy, was not improbable either. 141I consider that the plaintiff described the occurrence of the incident in convincing detail. I am satisfied the plaintiff gave a reliable account of the events, which were in relatively short compass. I accept that he was told by Mr Gillard to look busy and to "pop" the manhole in question. This involved the plaintiff applying a lifting force to pull up the lid of that manhole using the T-bar lid-lifting device, which he had earlier obtained from the truck at the direction of Mr Gillard. 142I am satisfied that during this lid lifting attempt, the plaintiff encountered resistance during the attempted lift, and could not cause the lid to "budge", as he put it, and as he tried and exerted significant lifting force as he straddled the manhole, he experienced a sharp popping sensation and pain in the middle of his shoulder blades in his upper back. When he subsequently told Mr Gillard that he thought he had pulled a muscle in his back, Mr Gillard told him to get out of the way, took the T-bar, and then lifted the manhole lid himself, using the same T-bar that the plaintiff had used earlier to try to lift the lid. 143I am satisfied that shortly after he tried to lift the manhole lid, the plaintiff had told Mr Gillard he thought he had pulled a muscle in his back, Mr Gillard then lifted the lid himself as described by the plaintiff. They then reloaded their things into the truck and made their way to the depot as it was close to 3 o'clock, and finishing time. The plaintiff said, and I accept, that when Mr Gillard was told by the plaintiff of his injury, he responded with something like "You'll be right". 144Afterwards, the plaintiff went home on the Friday afternoon and told Mrs Humphries of his injury. He then took it easy during the ensuing weekend. This evidence was confirmed by Mrs Humphries. I am satisfied that Mrs Humphries related her evidence truthfully, which confirms the timing of the plaintiff's injury in juxtaposition to that weekend, as did her evidence of her perception that the plaintiff was in significant pain after work on the Friday, and on that weekend. 145In placing significance on the corroborative evidence of Mrs Humphries, I considered the possibility that she could have given her evidence in a partisan way in order to benefit her husband's interests in the litigation. I discounted that possibility, as my impression was that her evidence was given sincerely, in a matter of fact, and uncontrived manner, and I did not consider it to have been tailored in order to advantage her husband's interests. 146Mr Gillard's evidence did not reflect the detail of the evidence given by the plaintiff. Based on Mr Gillard's non-recollection of the event, the defendant argued that the plaintiff's injury occurred on the following Tuesday, 26 February 2008, at which time he bent down to pick up a hose at the depot, and as he did so, he felt pain in the exact same area he had injured on the previous Friday, following which he reported the further incident to his immediate supervisors, Mr Reed and Mr Conroy. 147It was this latter experience that led the plaintiff to seek medical advice from his general practitioner, Dr Lockhart, as his injury was causing him pain, and it had not resolved on the weekend as he had anticipated: Exhibit "F". 148Shortly after 9.15am on Tuesday 26 February 2008, after the further episode of back pain at work after bending to pick up a hose, the plaintiff filled out an incident report form for the Council, specifying the date of the original injury as being 22 February 2008. In the incident report form, he nominated the address where the 22 February incident had occurred, and providing a consistent account of the nature and the cause of his injury in the content of that form: Exhibit "G". 149Against that evidence is the evidence of Mr Gillard, who based his evidence on his belief of what had occurred, rather than upon his recollection. I am satisfied that Mr Gillard's recollection was incomplete, for whatever reason. When Mr Gillard was asked to explain why he had referred to his belief rather than his recollection he was unable to supply a cogent answer. This led me to doubt the accuracy of his evidence. 150My impression of Mr Gillard's evidence was that he had formed the belief that the incident had not occurred as the plaintiff had stated, and he then related his evidence in accordance with that view. It appears he had based his view on an alleged failure of the plaintiff to raise the fact of his injury with him on the day in question. Whilst it is not possible to conclusively decide the point, it appears that Mr Gillard's recollection was less detailed than the plaintiff's because he thought little of the events of that occurrence, as the plaintiff implied, by the cited comment "You'll be right". This might explain his limited recollection of the event, compared to the plaintiff's more detailed recollection. 151It is possible, as was suggested on behalf of the plaintiff, that Mr Gillard may have related his evidence in a reserved and circumspect manner because if it was accepted that the plaintiff's injury occurred in the manner described by the plaintiff, then this could have reflected inconveniently on Mr Gillard in his role as a supervisor for not properly implementing the Council's safety procedures. Whilst that submitted explanation could be entertained, I do not consider it necessary to decide that issue. 152I simply prefer the plaintiff's more detailed account, which had the ring of truth about it, and because it was corroborated as to timing by the evidence of his wife, and by Exhibit "G", when compared to Mr Gillard's limited recollections of the day in question. 153I therefore accept that the plaintiff was asked by Mr Gillard to lift the heavy concrete lid on his own, without assistance of any kind, whilst using the T-bar device. I accept that in doing so, he suffered a straining injury to his upper spine and to his right shoulder, which he duly reported to Mr Gillard, his immediate supervisor. I do not accept Mr Gillard's lack of recall of such events as a sound basis for rejecting the plaintiff's testimony as to how his injury occurred.

Consideration of Issue 2 - Negligence and causation 154For the plaintiff to establish that the defendant was negligent, and that he has an entitlement to damages from the defendant, he must establish that he was owed a relevant duty of care, that there was a relevant breach of the claimed duty of care so as to amount to negligence according to the requirements of s 5B of the CL Act, and that his injury and claimed losses were caused by the negligence of the defendant, according to the requirements of s 5D of the CL Act.

The duty of care owed 155The situation of an employee of a labour hire company who has been lawfully directed to perform a work task by the client of that labour hire company to whom the employee's labour had been assigned, and where the work in question is within the scope of the hiring, fits comfortably within the category of circumstances where a duty of care to take reasonable care can be reasonably assumed to be present, and requires little further analysis: Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; 205 CLR 254 per Gleeson CJ at [13]. 156In my view, that formulation applies to the Council in this case, in respect of a duty of care owed to the plaintiff. 157This is particularly so where the circumstances under consideration obliged the plaintiff to carry out work tasks at the direction of his immediate supervisor, Mr Gillard, an employee of the Council. Those circumstances identify a sufficient relationship or dynamic of control to justify the implication of a duty of care in the Council to take reasonable care for the safety of the plaintiff in the workplaces where he was required by the Council to carry out his assigned manual work. 158In the present case, I consider that a duty of care of that kind is readily implied in the circumstances. The plaintiff was a relatively unskilled labourer, and he was under the supervision of a more senior Council employee who was not only a tradesman, but someone who had the authority and control over the tasks to be performed, as well as having control over the manner in which those tasks were to be performed, including by the use of particular tools chosen for the purpose. 159In those circumstances, it seems to be a fruitless task to seek to further define the demarcations of a duty of care beyond the obligation to take reasonable care, where not withstanding the labour hire arrangement which was longstanding, the relationship here was very much akin to the relationship of employer and employee, especially given the substantial extent of workplace control exercised over the plaintiff by the defendant, through its employee, Mr Gillard. 160In therefore turn to a consideration of whether the defendant was in breach of the duty of care owed, as has been alleged by the plaintiff.

Breach of duty of care 161In paragraph 11 of his statement of claim, the plaintiff has raised a total of 15 allegations of negligence. Some of those allegations overlap. In my view, the basis of the alleged breaches of the duty of care owed can be conveniently summarised into the following 6 condensed formulated propositions: (a)Failure to maintain a safe system of work. (SOC, paragraph 11.1); (b)Failure to provide adequate manual or mechanical assistance, and a related failure to warn the plaintiff of the risk of injury involved in lifting manhole covers without proper manual or mechanical assistance. (SOC, paragraphs 11.13; 11.14; 11.15); (c)Failure to train the plaintiff in safe manual handling techniques and failure to ensure that such systems were in place. (SOC, paragraphs 11.7 and 11.8); (d)Failure to carry out a risk assessment to identify the risks associated with the duties required of the plaintiff at the work site. (SOC, paragraph 11.6); (e)Failure to ensure the safety of the plaintiff and a related failure to protect him from injury by requiring him to lift a manhole cover using a T-bar without assistance and without adequate supervision. (SOC, paragraphs 11.2; 11.3; 11.4; 11.5; 11.9); (f)Failure to correctly mark the manhole cover and a related failure to provide a tool that was not defective. (SOC, paragraphs 11.10; 11.11; 11.12). 162These propositions are analysed in the paragraphs that immediately follow. As to (a) - adequacy of the maintained system of work 163I do not consider the defendant to have failed to maintain a safe system of work, in the sense that the work in question required the lifting of manhole lids. Those lids were known to the defendant and to the plaintiff to be of several varieties and sizes, from a light plastic construction, to bolted steel, as well as several different types of concrete lids, each of differing weights. 164The system of work required that these lids be lifted periodically for visual inspection of the sewer mains below to deal with possible chokes. A variety of methods were available to lift the concrete lids, depending upon the weight involved. These methods varied from the use of T-bars by one person, two persons, or by a mechanical lifting device attached to a truck. The choice of method was a matter to be decided by the Council's employed supervisor, Mr Gillard, according to the given circumstances that presented. 165On the foregoing analysis, I consider that it cannot be reasonably said there was a failure to maintain a safe system of work. Whether that system was safely implemented in the circumstances involves a separate question. As to (b) - adequacy of manual and mechanical assistance and warnings 166I do not consider that the was a general inadequacy in the provision of manual and mechanical assistance in that such assistance was on hand to be used in the required manner, at the choice and direction of Mr Gillard. That assistance included Mr Gillard's manual assistance if required, and also the availability of the mechanical lifter on the truck, if that was required. 167Nor do I consider that on this particular occasion there was a failure to warn the plaintiff of the risk of injury if assistance was not employed to lift the manhole cover in question. I consider this to be so because as a manual worker, the plaintiff knew enough about the work system to know that lifting of the manhole cover required the application of physical strength. As an experienced manual labourer, the plaintiff needed no warning about the risk of injury caused by the lifting of heavy weights. On the other hand, he was entitled to assume his employer would not require him to lift unreasonably heavy weights. 168On the foregoing analysis, I consider that it cannot be reasonably said that there was a failure to provide adequate manual and mechanical assistance or that there was a failure to warn the plaintiff of the general risk of sustaining injury in a work system that involved lifting heavy concrete manhole lids. Again, the real issue is whether the system that was in place, was properly implemented. As to (c) - adequacy of training and implementation of safe techniques 169The uncontested evidence is that Mr Gillard assumed, without checking, or seeking confirmation from someone who ought to have known, that the plaintiff had been trained in the occupational health and safety procedures involved in safe lifting and materials handling methods specifically used in the defendant's work systems. 170In my view, in the enlightened industrial times of 2008, it was a breach of the duty of care owed to the plaintiff for Mr Gillard to assign to the plaintiff a heavy lifting task without first satisfying himself that the plaintiff had been trained in the safe methods for performing such a task, given the weight or apparent weight of the object to be lifted. This is particularly so when it is understood that the plaintiff was not an employee of the defendant, and Mr Gillard knew or ought to have known that labour hire employees such as the plaintiff who were deployed to work for the Council, were as a matter of course, excluded from the defendant's safety training procedures. 171I am satisfied that it was breach of the duty of care owed to the plaintiff for the Council to assign him to a heavy lifting task without some responsible person on behalf of the Council first taking steps, through some sort of enquiry, to ascertain whether he had been appropriately trained in workplace safety issues and safety procedures peculiarly relevant to the specific tasks the Council would be requiring the plaintiff to perform. As to (d) and (e) - risk assessment, lifting, assistance and supervision 172The question of whether there was a relevant failure to protect the plaintiff from injury by requiring him to lift the manhole cover without assistance is a matter that can be determined on the facts, in conjunction with the expert evidence on the liability issues. 173The plaintiff had not been given the benefit of a work place induction on the safety considerations to be borne in mind when lifting manhole covers of the type under present consideration. 174In my view, an induction of that kind should have been a standard and uncontroversial risk management action that ought to have been provided to the plaintiff before he was assigned to the task in question. 175As the tasks required of the plaintiff were site specific, it fell to the Council to ensure compliance with risk assessment, assistance and supervision issues. 176Little formality would have been required. This could have been achieved on site in a practical setting in a relatively short period of time. This should have involved making the plaintiff aware of the weight of the manhole cover, or at least identifying it as being of such weight that a one-man lift was contraindicated. The Council apparently provided such instruction to its own employees, but excluded the employees of labour hire companies, such as the plaintiff. 177In my view, this involved a failure of adequate supervision of the plaintiff as an untrained labour hire employee, as well as a failure to provide adequate assistance. In this regard, I accept the opinions of Mr Griffiths and Dr Adams that the lifting of any weight over 20kg, and certainly at 75kg, should have signalled the requirement for a two-man lift in the circumstances. 178The failure of risk assessment and supervision that occurred in this instance was that the Council, or more particularly, its delegate Mr Gillard, was apparently unaware of the actual weight of the manhole cover, and therefore unaware that it weighed in the vicinity of 75kg - 85kg, as was readily ascertained by Mr Griffiths and Dr Casey in their field inspections. Had that weight or the approximate weight been known, rather than wrongly estimated by Mr Gillard to involve a low weight and therefore a low risk, a mechanical lift would have obviously been required. In the circumstances it should have been used without question, and without attempting a manual lift which was fraught with risk, even if carried out by two men. The mechanical lifter was on the truck and available for use if required. The terrain offered no impediment to its use. 179In my view, the failure of Mr Gillard to arrange a mechanical lift for a manhole cover of the order of 80kg, was a failure of adequacy of risk assessment and supervision procedures on the part of the Council. This view is compelling from an analysis of the opinions of Mr Griffiths, Dr Adams, and also on a common sense analysis 180A T-bar lift, whether by one man or two men, was plainly contraindicated in the circumstances, having regard to the weight lifting restrictions identified in the expert evidence. 181I therefore conclude that there was a significant breach of the required duty of care owed to the plaintiff in regard to risk assessment, assistance and supervision requirements. The plaintiff should not have been asked to lift the heavy duty manhole cover either with the T-bar, or without mechanical assistance. 182I am satisfied that the foregoing failures on the part of the Council amounted to significant and relevant breaches of the duty of care owed to the plaintiff. As to (f) - markings and adequacy of tools 183In hindsight, in terms of risk assessment, it would have been useful if the Council's manhole covers had been somehow marked, either with paint or engraving, or a suitably affixed label, to indicate their actual weights so as to signify to those who were required to lift such objects that due care should be taken when lifting those manhole covers. However, hindsight is an inappropriate test. Instead, these suggestions should be considered in a prospective analysis: Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 442, at [124]. 184As there was no evidence as to when the manhole covers were installed, and there is no evidence as to how many such covers were maintained by the Council, it is difficult to impute a breach of duty to the Council in respect of the absence of such signage or labels, although it would obviously have been a good idea to implement such a suggestion if the available resources permitted this to be done. 185That said, given that such manhole covers were only required to be lifted by trained staff in the course of maintenance work, it would have been a relatively simple matter for the Council to arrange to ensure that all workers and supervisors were appropriately trained to recognise the different manhole covers, and to therefore recognise the risks associated with the task of lifting them. 186There is no evidence to sustain the allegation that the T-bar tool provided to the plaintiff was defective as alleged. Instead, it was simply inadequate for the assigned task, in view of the weight to be lifted. 187I make no finding to the effect that the manhole covers were not marked, or that defective tools were provided. Conclusions on breach of duty of care 188On the foregoing analysis, I am satisfied that the defendant was relevantly in breach of the duty of care that it owed to the plaintiff in that it failed to ensure that the plaintiff was adequately trained in the implementation of safe lifting techniques for the manhole covers he was required to move. I am also satisfied that the defendant failed to carry out an appropriate risk assessment and as a result, failed to employ an available mechanical lifting device, which also constituted a breach of the duty of care owed. 189It is therefore necessary to undertake the analysis required by s 5B of the CL Act in order to determine whether in this case, a finding of negligence should be made against the defendant.

Negligence - s 5B of the CL Act 190Under the regime of the CL Act, a finding of breach of duty of duty of care alone, is an insufficient basis upon which to make a finding of negligence. Before a finding of negligence can be made, it is necessary for the plaintiff to demonstrate that the requirements of s 5B of the CL Act have been met. In the paragraphs that follow those requirements are reviewed to determine whether they have been met in this case. Section 5B(1)(a) of the CL Act - foreseeability of risk 191As to the first requirement is that it must be shown that the defendant knew or ought to have known that that there was a foreseeable risk of injury associated with the lifting the plaintiff was asked to perform: s5B(1)(a) of the CL Act. That requirement is amply satisfied by the defendant's requirement that Mr Gillard carry out site risk assessments in which handling issues are graded as to risk. There is no reason for doubt that the risk of back injury to the plaintiff was foreseeable to the defendant. Section 5B(1)(b) of the CL Act - risk not insignificant 192As to the second requirement, it is plain that a request that a labourer be asked to lift weights of the order of 75kg - 85kg in a vertical lift, either alone or as a two-man lift, using a T-bar lifter, carries a significant risk of injury to the person required to carry out the lifting: s 5B(1)(b) of the CL Act. 193The expert opinions of Mr Griffiths, Dr Adams and Dr Casey amply demonstrate this. It is accepted that if a lifting force of between 100 to 120kg for a manhole cover weighing around 80kg involves a significant risk of injury to the person or persons carrying out this lifting tasks manually without mechanical assistance that serves to reduce the effective load to be lifted. This is in the context of Workcover recommendations for the load to be lifted by one person to be limited to 16kg - 20kg, as explained by Mr Griffiths in his report dated 18 April 2012 and in his oral evidence. This proposition is also generally supported by the ergonomic opinions of Dr Adams in his reports dated 12 January 2012 and 26 July 2012. 194Furthermore, Dr Adams' opinion, which I accept, is that the provision of the T-bar lifter was insufficient for the manhole cover to be lifted by either one man, or two men, without mechanical assistance. Section 5B(1)(c) of the CL Act - precautions by reasonable person 195As to the third requirement, it must be shown that a reasonable person in the defendant's position would have taken precautions, here being the precaution of providing proper training on how to safely lift the manhole covers by using appropriate and available mechanical lifters: s 5B(1)(c) of the CL Act. 196Here, the Council had a programme of "tool box" instruction of its own employees, but the casuals, or labour hire employees were excluded from this process. That circumstance is difficult to understand, given that "tool box" instruction seemed to be a convenient and practical way of inducting workers into the safety culture of the particular workplaces where work had to be carried out. It would have been a relatively simple matter for the defendant to provide this instruction to the plaintiff on the job in the interests of safety. It is not necessary to speculate as to why labour hire employees were excluded from those sessions. Section 5B(2) of the CL Act - consideration of precautions 197In considering whether, in the circumstances, a reasonable person would have taken precautions against the risk of harm a number of matters arising from s 5B(2) of the CL Act also have to be satisfied. Section 5B(2)(a) of the CL Act - probability of harm occurring 198It must be shown that there was a probability that harm would occur if training and lifting precautions were not taken: s 5B(2)(a) of the CL Act. 199In that regard, it is well known in industry, and in workplaces, that if proper care is not taken with lifting activities, there is a high and not remote probability of back injury occurring. It is plain from the reports of Mr Griffiths and Dr Adams that the precautions of safety training and the provision of mechanical aids would have materially lessened the probability of injury to the plaintiff in this instance. Appropriate mechanical assistance was on hand in the truck anyway. Furthermore, the pulley and chain device employed by Mr Griffiths seems to provide a good example of a practical, portable, effective and safe means of lifting dead weight heavy objects such as the manhole cover in question. 200It is no answer to say, as the defendant argued, that a problem had never before occurred using the T-bar lift method. If that system was deployed, then on the analysis provided by Mr Griffiths and Dr Adams, there was an ever-present risk of an injury of this kind occurring in the work system as adopted by the Council. It was fortuitous that such an incident had not materialised earlier. 201Similarly, it is no answer, as argued by the defendant, that Mr Gillard had no difficulty getting the lid out, as described by the plaintiff. Mr Gillard was a taller, larger, and I infer, stronger man than the plaintiff. Although not the subject of specific analysis by experts, it would be likely from this, that different lifting moments and dynamics would have applied to Mr Gillard's lift, perhaps also influenced by the plaintiff's efforts in possibly loosening the tight fitting lid. This point raised by the defendant does not derogate from the criticisms of the lack of safety in the work system employed by the defendant. It is noteworthy that Dr Casey encountered a similar problem to the plaintiff's experience when attempting to lift the lid, when he attended the site on 25 October 2012. Section 5B(2)(b) of the CL Act - likely seriousness of harm 202It must also be shown that the risk of injury involves serious harm: s 5B(2)(b) of the CL Act. Whilst injuries obviously vary in their extent and seriousness, it is well known that back injury can be potentially very serious, and should be guarded against by taking proper precautions. Expert evidence is not required to sustain this proposition. The law reports of common law cases are replete with examples of cases providing support for this proposition. Section 5B(2)(c) of the CL Act - burden of taking precautions 203A consideration of argued precautions is the nature and cost of the burden of taking precautions to avoid the risk of harm: s 5B(2)(c) of the CL Act. In this regard, in the present case, there seems to have been no true burden in terms of cost, inconvenience or significant extra time in taking the appropriate precautions when lifting the manhole cover using a mechanical lifter. That mechanical lifter was already on the defendant's truck. All that needed to occur was to arrange the appropriate placement of the truck near the manhole to enable the lifter to be deployed. That was not a true burden in the circumstances. It involved no extra expense to the defendant, and to the extent that it involved some additional time, which had a built-in labour cost, in the context, this must be seen to have involved a relatively small and absorbable cost as the labour was already on the job in any event. Section 5B(2)(d) of the CL Act - social utility of the activity 204The final consideration is that of the social utility of the activity that creates the harm: s 5B(2)(d) of the CL Act. In that regard, whilst there was a high social utility in appropriately maintaining sewer mains, this was an activity that was readily capable of being performed safely and in accordance with commonly accepted industrial standards of safety when engaging labour in the tasks involved. These standards are well described in the report of Mr Griffiths and Dr Adams. On an overall view of the circumstances, it was not necessary for the Council to compromise the safety of its labour force on account of the social utility of maintaining the sewer mains. Conclusion on s 5B - negligence finding 205Accordingly, I consider that all of the requirements of s 5B of the CL Act have been met thus justifying a finding of negligence on the part of the defendant in respect of the breaches of the duty of care that I have found to have occurred in the circumstances of the plaintiff's injury.

Causation 206The plaintiff must show that his injury and his resultant claimed damage was caused by the negligence: s 5D and s 5E of the CL Act. In my view, in this case, it is plain that but for the defendant's requirement that the plaintiff lift the heavy manhole cover in question, which request I have found to have involved negligence on the part of the Council, the plaintiff would not have suffered the injury for which he now claims damages. In these circumstances, in my view, the plaintiff has satisfied the statutory requirements for proof of causation: s 5B and s 5E of the CL Act.

Conclusions on liability 207On the foregoing analysis, the plaintiff has established relevant breaches of the duty of care owed to him by the Council. In my view, those breaches satisfy the statutory requirements of s 5B of the CL Act for proof of negligence, and the statutory requirements of s 5D of the CL Act for proof of causation of damage.

Consideration of Issue 3 - Contributory negligence 208The defendant bears the onus of making good the allegation of contributory negligence raised against the plaintiff. That allegation appears in paragraph [12] of the defence filed on 8 August 2011, and comprises a single particular alleging that the plaintiff had failed to keep any adequate or proper lookout for his own safety. In the context in which this defence is raised, I interpret this allegation to involve an assertion that the plaintiff acted without properly considering his own safety. 209I do not accept that the plaintiff failed to adequately keep a proper lookout for his safety, or that he failed to consider his own safety. Nor do I accept that he otherwise contributed to his injury by any neglect for his safety. 210The issue of contributory negligence must be determined by a prospective analysis, not a hindsight analysis: Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 442, at [124]. 211The plaintiff was asked to lift the manhole cover using the lifting tool provided by the Council for the purpose. He placed himself in the appropriate foothold position straddling the manhole in order to obtain a reasonably placed lifting purchase. He had carried out lifting tasks of this nature for the Council on other occasions without injury to himself. He had no actual knowledge of the weight involved, nor was he expected to have such knowledge as a hired labourer whose job involved working according to instructions on the tasks assigned to him by the Council's trained supervisor. It was Mr Gillard, who was in charge of the work system, who decided upon the work task to be performed by the plaintiff, and gave the plaintiff the instruction to lift the manhole lid with the implement provided. Given that Mr Gillard was the plaintiff's immediate supervisor, the plaintiff was entitled to assume that the instruction he was given would not result in him sustaining avoidable injury by negligent means. 212Given that dynamic of control, absent any knowledge on the plaintiff's part to the effect that the work system was unsafe, the plaintiff had no reason to question the task that had been assigned to him. He applied his best endeavours to the task, Beforehand, he had no idea of the actual physical force required to lift the manhole lid. He had no idea of the actual weight of that lid. These were matters of risk assessment that the Council, by its delegated employee, Mr Gillard, had to consider before requesting the plaintiff to lift the lid using the T-bar by himself. At best, all that could be reasonably said in criticism of the plaintiff was that in his application to the assigned task of negligence, there might have been a casual act of negligence on his part. That does not equate to a finding of contributory negligence. 213I see no contributory negligence on the part of the plaintiff in the circumstances in which he sustained his injury. Accordingly, I find that the defendant has failed to sustain the defence of contributory negligence.

Consideration of Issue 4 - Notional liability of employer - s 151Z 214By paragraph 13 of the defence filed on 8 August 2011, the defendant seeks to rely upon the putative negligence of the labour hire company that employed the plaintiff, and which supplied his labour to the defendant. The defendant carries the onus of establishing that defence in order to achieve a claimed reduction in the plaintiff's entitlement to damages in these proceedings on account of negligence on the part of the employer, pursuant to s 151Z(2)(a) of the WC Act. 215The evidence of the plaintiff was that the labour hire company had not trained him in safe lifting techniques. In my view, in this case, that fact, of itself is an insufficient basis upon which to successfully argue for a reduction in the plaintiff's damages pursuant to s 151Z(2)(a) of the WC Act. 216The position might have been different if it could be shown that the employer had been made aware of the Council's intention to deploy the plaintiff's labour to carry out lifting duties. The plaintiff had received training arranged by his employer for working safely for the Council in confined spaces, and in using the "stop" and "go" signs for traffic control safety on the Council's work sites. I infer from the evidence on those matters that the labour hire company knew that the Council expected the plaintiff to have training for the use of those skills in order that he could be deployed to work in areas requiring their use. 217However, in the absence of evidence that the employer either knew or ought to have known the plaintiff's labour would be deployed in heavy lifting tasks, there is an insufficient basis within the evidence to find that the employer either knew or ought to have known that the plaintiff would be asked to carry out tasks involving the lifting of heavy concrete manhole covers. 218In support of its claim for a reduction in the plaintiff's damages pursuant to s 151Z(2)(a) of the WC Act, the defendant referred to Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99 and TNT v Christie [2003] NSWCA 47. I accept the submission made on behalf of the plaintiff that those decisions were site specific and therefore distinguishable from the present case. In TNT v Christie, the employer had ample opportunity to inspect the site and work system which justified the reduction of damages in that case. The plaintiff's employer had no such opportunity in this instance. The employer would have had no power or control over that system: Pollard v Baulderstone Hornibrook Engineering Pty Ltd, per McColl JA, at [37] citing McLean v Tedman [1984] HCA 60; (1984) 155 CLR 306, at p 313. 219Although the plaintiff's employer had a non-delegable duty to ensure the safety of its employees, including when assigned to the Council's labour force, this has to be viewed in context. The employer had trained the plaintiff for safe work in confined spaces and for "stop" and "go" sign operation. In the absence of evidence that the employer was aware that the plaintiff would be assigned to work on heavy lifting tasks, especially in a situation where the plaintiff had a 6 year history of having his labour hired out, including to the Council, I see no basis for a s 151Z reduction. 220In coming to that view, I have considered what the employer might have ascertained if it inspected the work system of the Council. It would most probably have seen a truck equipped with a safe lifting device and Council documents of the kind evident in Exhibit "2", which would have provided reassurance to the employer that the Council had a safe manual handling policy. 221I see no basis for imputing negligence to the plaintiff's employer in respect of the circumstances in which the plaintiff sustained his injury. Accordingly, I find that the defendant has failed to sustain the defence raised pursuant to s 151Z(2)(a) of the WC Act.

Consideration of Issue 5 - Assessment of damages 222The final submissions made on behalf of the plaintiff quantified the plaintiff's entitlement to damages in the sum of $838,706.29: MFI "7". In contrast, on the assumption that the opinion of Dr Silva should be accepted, the defendant's submissions maintained that the plaintiff's damages should be assessed in the amount of $22,274: MFI "3". My monetary assessment of the heads of damages claimed by the plaintiff is set out in the following paragraphs.

Non-economic loss 223On behalf of the plaintiff, it was submitted that the appropriate percentage to be assessed for non-economic loss pursuant to s 16 of the CL Act should be 35 per cent of a most extreme case, which on the applicable table for assessing the monetary amount for a most extreme case under s 16 of the CL Act, cited as the equivalent of $187,500. That amount could not be reconciled with the amount of $161,000 submitted on behalf of the plaintiff: MFI "1" and "MFI "7". In contrast, on behalf of the defendant, it was submitted that the appropriate assessment should be 20 per cent, which is the equivalent of $18,500. 224The physical, emotional and psychological effects of the plaintiff's injury have been summarised at paragraphs [124] to [130] of these reasons, and need not be repeated here, except for the purpose of noting that all of these aspects of the plaintiff's life have been adversely impacted by the effects of the aggravation injury sustained by the plaintiff on 22 February 2008. 225The plaintiff's ongoing complaints of pain and discomfort have led to a diagnosis of chronic pain disorder, with an adjustment disorder, mixed anxiety and depressed mood. The prognosis for these permanent problems remains guarded. His enjoyment of family life, work, and domestic and leisure activities have all been adversely affected. This has led to a significant adverse impact on his ability to enjoy the amenity of his life. 226In those circumstances, I consider that these impairments, in a person such as the plaintiff, who is aged only 44 years, and who has a statistical life span of a further 41 years, should be assessed as being the equivalent of 32 per cent of a most extreme case assessed in accordance with s 16 of the CL Act. This is the monetary equivalent of $160,500. 227I therefore award the plaintiff damages for non-economic loss pursuant to s 16 of the CL Act in the sum of $160,500.

Past economic loss 228A revised submission made on behalf of the plaintiff was that the claim for past economic loss should be assessed in the net amount of $93,241.48 (MFI "7") in lieu of an earlier submitted calculation of $195,800 (MFI "1"), which was based upon incorrectly assumed comparable earnings. These figures included allowances for lost superannuation contributions by the employer, which I intend to assess separately. 229In contrast, the defendant submitted that this component of the claim should be limited to an allowance of 4 weeks loss of earnings, at $3400. That amount was calculated without reference to any identifiable milestone in the plaintiff's post-injury history. It seems to represent an arbitrary allowance made on the premise that the aggravation injury sustained by the plaintiff in the subject incident was of only temporary duration, as was suggested by Dr Silva, a proposition I have not accepted either as a fact or as a reasoned medical opinion. I therefore do not accept that submission. 230The plaintiff's claim for past economic loss is founded upon the following sequence of propositions. First, he was in secure paid employment at the time of his injury deriving earnings averaged at $414.66 per week net. Secondly, but for the injury, he had a capacity for continuing in that work or similar work, absent the occurrence of other injuries. Thirdly, the injury in question put an end to that pre-accident employment, or similar employment. Fourthly, whilst he found some mitigatory employment, this was short-lived and he has been unable to carry out work since, because of his accident related incapacities. 231I find that each of these propositions has been reasonably made out on the evidence. I find that the defendant's position, which was based upon the opinions of Dr Silva, which I have not accepted, is untenable. In the paragraphs that follow, I set out my consideration of the relevant matters relating to the claim for economic loss. 232As to the first proposition, had the plaintiff not been injured in the subject incident, it is reasonably clear that he would have continued in his pre-injury employment or similar employment. I infer from his evidence that he was regarded as a valued and preferred employee whom the Council wanted to keep employed, although he was employed by an intermediary labour hire company. He seemed to be of stable and practically oriented disposition, and he was a good worker. He was clearly able to market his labour without known restrictions on the open employment market in the area in which he lived. The fact that he was employed by a labour hire company indicated he had portability of his employment, and had an employer who actively sought to place his labour. He was not entirely dependent upon his own efforts to find work. 233As to the second proposition, the plaintiff had no known work restrictions. The earlier incident involving an injury to his right side at a club in about 2005 was not a work-limiting factor, as he had no lasting disabilities from that incident. Furthermore, although it has been subsequently ascertained that he had an underlying degenerative condition of the spine that made him vulnerable to injury, if he was to have worked in a safe system of work that incorporated safe lifting and manual handling techniques, that predisposition did not seem involve unusually great risks for injury. 234As to the third proposition, the medical reports of Dr Searle and Dr Billett make it plain that the plaintiff now has a substantial impairment in his earning capacity. This arises on account of physical and psychological factors, as was explained by those doctors, and by Dr Dennerstein. 235Dr Searle stated that the plaintiff is permanently unfit and precluded from employment for which he is suited by reason of his education, training or experience. Dr Searle expressed the prognosis to be for a gradual increase in symptoms with a steady progression of the disability. 236Dr Billett stated that the plaintiff is not capable of resuming his pre-injury duties. He also placed significant restrictions on the plaintiff lifting, working above shoulder level and prolonged standing and repetitive bending. 237These matters do not augur well for the plaintiff finding suitable, albeit limited alternative employment, particularly as he is not academically inclined. I accept his evidence that he is not skilled in reading and writing. These matters suggest that the retraining to which Dr Searle referred in his report, would be of very limited utility in the plaintiff's circumstances. 238As to the fourth proposition, some 4 months after his injury, the plaintiff managed to find suitable alternative work for a short period of time driving a courtesy bus for the local RSL club. Initially, that work was obviously not pressured or demanding, the vehicle was comfortable. However, the job with such limited duties proved non-viable from the employer's perspective and the plaintiff found that the extra duties of a barman and bar useful were too much for him to cope with. That experience, and the difficulties experienced by the plaintiff in driving trucks for Joshua Developments, suggests that the plaintiff's opportunities for mitigatory employment are somewhat theoretical and remote. 239In light of the above analysis, I consider that the plaintiff has made reasonable attempts to mitigate his loss of earnings. To date, he has clearly had few, if any, realistic prospects for mitigatory employment. 240Turning to the assessment of this component of the claim, the period between 27 February 2008, when the plaintiff ceased his pre-injury employment, and the commencement of the hearing, is 245.14 weeks. At the net rate of $414.65 per week, the plaintiff's probable net earnings in that period would have been $101,649.75. 241It is necessary to make an offset from that figure because of the net earnings the plaintiff managed to derive from his mitigatory employment with the Sussex Inlet RSL Club in the amount of $10,223.85, and with Joshua Developments in the amount of $7395.63. After applying these offsets, the net loss is revealed to be $84,030.27. 242I therefore award the plaintiff damages for past economic loss in the sum of $84,030.27.

Future loss of earning capacity 243A revised submission was made on behalf of the plaintiff that damages for future loss of earning capacity should be assessed in the amount of $366,358 (MFI "7"), in lieu of earlier submitted calculations in the amounts of $619,541 and then $575,413.35 (MFI "1"), which were based upon incorrectly assumed comparable earnings. These figures included allowances for lost superannuation contributions by the employer, which I intend to assess separately. 244In my view, the factors that I have reviewed at paragraphs [228] to [242] above in connection with the claim for past economic loss, apply equally with regard to the claim for future loss of earning capacity. 245The medical evidence and the evidence of the plaintiff satisfy me that the plaintiff has substantially lost his pre-injury earning capacity and that this situation will most probably continue into the future and will cause him to suffer financial loss for the remainder of his otherwise normal working life, until the pensionable age of 67 years. 246Given the comments of Dr Searle and Dr Billett, taken together with the opinion of Dr Dennerstein who described the psychological consequences of the plaintiff's injury, I find that the prospect of the plaintiff obtaining steady mitigatory employment within his theoretical residual earning capacity, other than for fortuitous and transient short term periods, to be remote. 247Nevertheless, to allow for such possibilities, I propose to apply a slightly higher than usual discount to accommodate this possibility. 248The plaintiff is presently aged 44 years. He has a remaining working life of 23 years to age 67 years, at which time he would be entitled to receive the aged pension. The 5 per cent multiplier for 23 years is 721.12. 249The projection of the amount of $528.25 per week net at 5 per cent over 23 years, (x 721.12) yields the undiscounted sum of $380,931.64. 250On behalf of the plaintiff, it was submitted that this sum should be discounted by the conventional amount of 15 per cent to yield the sum of $323,791.89. In view of the medical evidence of the plaintiff's degenerative spinal condition, although quiescent at the time of the accident, I consider that a higher than usual discount for potentially adverse vicissitudes should be applied, namely 20 per cent. 251This is because it is possible that in continuing to carry out labouring work, although otherwise fit, the plaintiff would be vulnerable to suffer injury to his spondylitic spine which, could impair his future earning capacity either in part or whole. The discount of 20 per cent should also accommodate the limited prospect of the plaintiff being able to exercise some form of residual earning capacity for transient periods over the remaining 23 years. Accordingly, applying a discount of 20 per cent, this yields the sum of $304,745.31. 252I therefore award the plaintiff damages for future loss of earning capacity in the sum of $304,745.31.

Past loss of superannuation 253I allow an amount for past loss of employer funded superannuation benefits by making the conventional calculation of 11 per cent of the past economic loss assessment of $84,030.27, namely $9243.32. I therefore award the plaintiff damages for past loss of employer funded superannuation contributions in the sum of $9243.32.

Future loss of superannuation 254As with the claim for the loss of past employer funded superannuation contributions, the claim for the loss of such future benefits should be assessed according to the conventional calculation of 11 per cent of the amount assessed for future loss of earning capacity of $304,745.31, which yields the amount of $33,531.58, which after discount by 20 per cent, yields the amount of $26,825.58. 255I therefore award the plaintiff damages for loss of future employer funded superannuation contributions in the sum of $26,825.58.

Past domestic assistance 256On behalf of the plaintiff, initially, in opening, it was stated that there was no claim for the value of past domestic assistance because the claim for the value of the care provided to the plaintiff was below the threshold of 6 hours per week for 6 months, as provided by s 15 of the CL Act: MFI "1". That position was not borne out by the evidence. 257Subsequently, based on an analysis of the evidence given by Mrs Humphries, in final submissions, on behalf of the plaintiff, it was submitted that the appropriate amount to be awarded for past domestic assistance was the amount of $43,225. That amount was calculated from 26 February 2008 until the commencement of the hearing on 13 November 2012 on the basis of 7 hours of such assistance per week, as claimed in the particulars of claim, at the flat rate of $25 per hour. It would appear that the correct commencement date for that claim is 23 February 2008. 258In contrast, the defendant submitted that no allowance should be made for this head of damage as the assistance provided was below the threshold provided by s 15 of the CL Act. 259An award of damages for past domestic assistance is dependent upon an acceptance of the evidence of Mrs Humphries on this topic. In essence, her evidence was to the effect that from the time of the plaintiff's injury on 22 February 2008, until when the family moved to Victoria in August 2011, and from the time of that move and until the present time, she has needed to carry out additional domestic tasks of the order of some 5 hours per day of domestic tasks, namely about 35 hours per week. I accept that the plaintiff would otherwise have carried out these tasks himself if he had not been injured. That evidence exceeded the plaintiff's particulars of claim, which indicated a claim for 7 hours per week for such services, a matter to which I shall shortly return. 260Mrs Humphries said, and I accept, that since the plaintiff's injury, she has taken over the domestic tasks that her husband otherwise used to perform when he was physically able to do so. When the family lived in NSW, Mrs Humphries stated that she and the plaintiff divided domestic tasks equally to the extent that the outdoor work was his responsibility, and all the indoor work was hers. This was an entirely understandable and reasonable arrangement that prevailed in the household, and is a circumstance which the defendant must accept. 261Those domestic tasks comprised lawn mowing, noxious or allergenic weed control, tending to all forms of household maintenance and repairs, windborne sand control, tending to the vegetable garden, and to the chooks. 262After the family moved to Ballarat, Mrs Humphries continued to perform similar domestic activities but there were some changes. The noxious or allergenic weeds and windborne sand were no longer problems that needed to be controlled, but lawn and weed control became a substitute activity. In each instance, Mrs Humphries had to expend approximately 35 additional hours per week to take over from the plaintiff. Some of that time was provided for by the assistance of one of her sons. 263The defendant attacked that evidence and suggested that if the plaintiff had been working, he would not have had sufficient time to carry out all these domestic tasks, and in any event, it was a very full day. I do not accept that argument for three reasons. 264First, if the plaintiff had worked an 8-hour day from 7am to 3pm, between the remaining time on weekdays, and on weekends, there was ample opportunity to attend to the described tasks. Secondly, it is unreasonable to assume that the plaintiff, who was taller and stronger than his wife, and accustomed to manual work, would have taken as many hours as she did to carry out the required tasks. The fallacy in the defendant's argument is that Mrs Humphries was describing the time she took to carry out the tasks. She was not describing the time taken by the plaintiff to perform those tasks. Thirdly, I accept the evidence of Mrs Humphries which described how she was always on the go managing the household, including until late at night, carrying out the required tasks as they needed to be attended to. 265I reject the defendant's attack on this evidence. In my view Mrs Humphries gave credible and persuasive evidence that she performed the additional domestic activities as claimed. I accept her evidence concerning her performance of the domestic tasks she described. 266Furthermore, the claim by the plaintiff finds some support within the medical evidence that I have accepted. The report of Dr Searle dated 4 December 2010 stated that the plaintiff requires domestic assistance with the heavier aspects of household chores: Exhibit "B", page 15. In his report dated 5 July 2012, Dr Billett suggested that the plaintiff be given assistance with gardening: Exhibit "B", page 46. 267Given the brief references to this issue in the reports of Dr Searle and Dr Billett, I read those suggestions as being generic rather than prescriptive. In order to quantify the hours required for these tasks, I consider the factually based evidence of Mrs Humphries provides a much more reliable guide to assessment than the brief passing references made to the issue in the medical reports cited. 268Understandably, the report of Dr Searle does not indicate the nature of the heavier tasks, and does not indicate the detailed matters disclosed in evidence, namely that before his injury, in the division of household labour, the plaintiff attended to all the outdoor tasks. It is plain from the evidence of Mrs Humphries and the plaintiff, that in the main, these were not light tasks, and involved activities that included standing, carrying and physical exertion of a kind that was likely to place contraindicated strain on the plaintiff's spine. 269The defendant's case to the contrary was based on the opinion of Dr Silva. In light of my earlier findings concerning the opinions of Dr Silva, I find his report to be of no assistance to the task of assessing the plaintiff's need for domestic assistance. 270I therefore consider this component of the plaintiff's claim to have been made out. 271In my view it matters not that the plaintiff moved his family to Victoria and onto a larger property in order to be near his frail parents at this time in their lives. Not all vicissitudes operate to detract from the damages otherwise due to a plaintiff. In this instance, I consider that the move to Victoria is a vicissitude that had the potential to operate against the interests of the defendant. 272Whilst the move to Victoria involved the plaintiff and his family making their home on a larger property which involved more outside work, when this issue is examined, it is revealed to be work of the kind the plaintiff would have otherwise attended to himself without assistance. It must be seen as foreseeable to a tortfeasor, and not remote, that a family would need to move interstate to a property that also required significant outdoor tasks to be carried out on a regular basis. 273Having regard to the defendant's submissions, in my view, it is not to the point that some additional time is involved in the outdoor tasks because the family resorted to grazing a few sheep on the property to keep the grass down for safety reasons, as they could not afford to use a sturdy lawnmower beyond the inside fence, and therefore the sheep need to be tended to, which involves some extra time. When the overall claim is viewed in relation to the NSW and Victorian locations, significant outdoor work of a roughly equivalent nature was required in each of these places. 274In any event, the limited claim of 7 hours per week, which I consider to be a very conservative nucleus of a wider and reasonable claim for many more hours, more than adequately protects the defendant from the risk of overcompensating the plaintiff for this head of damage. 275There was no application by the plaintiff to amend the particulars of claim to accord with the evidence given by Mrs Humphries, although attention was drawn to that issue. This may well have been because it was clearly understood at the outset of the hearing that the jurisdiction for assessment of damages in this case was limited to $750,000: T3.10; T43.37 - T44.30. 276In those circumstances, the plaintiff's claim for past domestic assistance must be confined to the particularised claim of 7 hours per week at the statutory rate which cannot be exceeded: s 15 of the CL Act. 277In reviewing the submission made on behalf of the plaintiff concerning this head of damage, the submitted claim of $44,225 exceeds the mandatory statutory rate required by s 15 of the CL Act. Confining the claim to that statutory rate, which is calculated in the Appendix to these reasons, the appropriate amount is instead revealed to be the sum of $32,886. 278I therefore award the plaintiff damages for past domestic assistance in the sum of $32,886.

Future domestic assistance 279On behalf of the plaintiff, it was initially submitted that the appropriate amount to be awarded for future domestic assistance should be in the amount of $65,212: MFI "1". Subsequently, in final submissions on behalf of the plaintiff, the former claim set out in the filed particulars was revived in a revised submission in the amount of $122,073.60: MFI "7". 280In the statement of particulars filed on 25 October 2012, the plaintiff particularised a continuing claim for future domestic assistance of 4 hours per week at the rate of $33 per hour for the remainder of his life. This is the equivalent of $132 per week. The projection of $132 per week at 5 per cent over 41 years (x 924.8) yields the undiscounted sum of $122,073.60. 281In my view, as with the analysis of the claim for past domestic assistance, a similar approach should apply to the claim for future domestic assistance, but with an adjustment to the amount claimed. 282In considering the plaintiff's claim against the evidence, the particularised claim of 4 hours per week, when viewed as an average over the plaintiff's remaining life span, seems inherently reasonable having regard to the evidence. It adequately accommodates the consideration that at present, the plaintiff's need is more likely to exceed the present 7 hours per week allowed for the past (out of the actual 35 hours per week provided), and also properly allows for a potential decrease in the need for so many hours as the size of the plaintiff's dependent family contracts in the future, and possibly moves to more compact accommodation requiring less outside work. 283Accordingly, I consider the claim for 4 hours per week for future domestic assistance to be reasonable. 284However, I consider that an adjustment should be made on account of the plaintiff's pre-existing degenerative spinal condition, but not in the same way and for the same reasons that an adjustment was made for this factor in regard to the claim for future loss of earning capacity, namely a discount of 20 per cent. I consider the present issue to be one that is encompassed by the conventional vicissitudes discount of 15 per cent. Applying that adjustment to the claimed figure of $122,073.60, the adjusted figure is $103,762.56. 285I therefore award the plaintiff damages for future domestic assistance in the sum of $103,762.56.

Future treatment 286On behalf of the plaintiff, it was submitted that the appropriate amount to be awarded for future treatment expenses should be in the revised amount of $50,199. In contrast, the defendant submitted that there should be no allowance for this head of claim. 287I consider that the defendant's submission should not be accepted because it glosses over the reality of the plaintiff's ongoing back pain and his depression, which I have found to have been caused by the injury in question. 288That said, I consider that the claim made on behalf of the plaintiff is not capable of precise assessment in the manner submitted, which included a suggested pattern of consultations and expenses for future consultations with general practitioners, orthopaedic specialists, radiological investigations, physiotherapy, hydrotherapy, pain killing medications, psychological assessments, an exercise rehabilitation program, a pain management program, and associated travel. 289A number of factors require consideration in connection with this component of the claim. 290First, the medical evidence is not prescriptive of such a detailed treatment program as was submitted. Whilst that is true, I consider it would be unreasonable not to allow any amount for future treatment on account of that factor as the plaintiff has a chronic back condition which warrants periodic medical review by a general practitioner in the first instance, likely referrals to specialists for periodic consultations for advice on management, some possible investigations to chart progress from the baseline, some other intermittent therapies, and psychological treatment from time to time for assistance with management of chronic pain. 291Secondly, the plaintiff has acknowledged that he was not one to readily seek out medical assistance through consultations with medical practitioners. That said, it must be assumed he will be taking reasonable steps to seek to mitigate his impairments in that regard, and this requires that some award should be made to provide funding for reasonable mitigatory treatment. 292In my view, these considerations do not support a claim for the projection of a weekly amount as was submitted on behalf of the plaintiff because of the many imponderable factors involved in such an assessment. In these circumstances, I consider that the appropriate method of assessing this component of the claim is to award a lump sum buffer that takes these factors into account. In this regard, I consider that an amount of $30,000 to cover the plaintiff in relation to this likely source of expense over his remaining lifetime would seem to be fair to both parties, and therefore reasonable. 293I therefore award the plaintiff damages for future treatment in the sum of $30,000.

Past out-of-pocket expenses 294On behalf of the plaintiff, it was submitted that the appropriate amount to be awarded for out-of-pocket expenses should be in the amount of $1376.65. The defendant did not accept the amounts were incurred as a result of the injury but accepted the total was mathematically correct. 295The amount in question is relatively modest, and appears commensurate with the limited amount of medical treatment sought out and obtained by the plaintiff comprising the medical assessments he had with his general practitioners, a specialist neurologist, some imaging studies and pain killing medication. Whilst the individual invoices were not tendered, I consider that the amount claimed is reasonable and commensurate with the treatment described by the plaintiff. I therefore propose to allow the amount claimed. 296I therefore award the plaintiff damages for out-of-pocket expenses in the sum of $1376.65.

Summary of damages assessment 297My assessment of the plaintiff's entitlement to damages is summarised as follows: (a) Non-economic loss $160,500.00 (b) Past economic loss $84,030.27 (c) Future loss of earning capacity $304,745.31 (d) Past loss of superannuation $9,243.22 (e) Future loss of superannuation $26,825.58 (f) Past domestic assistance $32,886.00 (g) Future domestic assistance $103,762.56 (h) Future treatment $30,000.00 (i) Past out-of-pocket expenses $1,376.65 Total $753,369.59

Disposition 298The plaintiff has succeeded in her action against the defendant without discount for alleged contributory negligence or the claimed negligence of his employer pursuant to s 151Z of the WC Act. He is entitled to a verdict and judgment in his favour in the amount of $753,369.59. 299The judgment amount exceeds the $750,000 jurisdictional limit of this Court. I was informed by the parties that the extended jurisdiction that might otherwise have been available pursuant to s 51(2) of the District Court Act 1973 was not engaged because the defendant made a timely objection to the availability of extended jurisdiction. Accordingly, although the judgment to be entered in this case exceeds the jurisdictional limit, the plaintiff is only entitled to recover the amount of that limit: Richards v Cornford [2010] NSWCA 99, per Basten JA, at [12]. This fact was known to the plaintiff at the outset.

Costs 300As the plaintiff has succeeded in her claim, she is entitled to have her costs of the proceedings paid by the defendant. Those costs should be paid by the defendant on the ordinary basis, unless some other entitlement can be shown in which case, liberty to apply for further orders will be granted, if required.

Orders 301I make the following orders: (1) Verdict and judgment for the plaintiff in the amount of $753,369.59; (2) The defendants are to pay the plaintiff's costs of the proceedings on the ordinary basis unless otherwise ordered; (3) The exhibits may be returned; (4) Liberty to apply on 7 days notice if further orders are required. APPENDIX CALCULATION OF VALUE OF PAST GRATUITOUS DOMESTIC ASSISTANCE / CARE ACCORDING TO CIVIL LIABILITY ACT 2002, s 15 (7 hours per week between 8 February 2008 and 24 September 2012) PERIOD WEEKS WEEKLY HOURLY AMOUNT FOR s.15 s.15 7 HOURS PER RATE RATE WEEK

1. 23.02.2008 to 16.05.2008 11.85 $937.80 $23.44 $1944.34
2. 17.05.2008 to 15.08.2008 12.85 $921.60 $23.04 $2072.45
3. 16.08.2008 to 21.11.2008 13.85 $933.50 $23.34 $2262.81
4. 22.11.2008 to 20.02.2009 12.85 $938.50 $23.46 $2110.23
5. 21.02.2009 to 15.05.2009 11.71 $946.40 $23.66 $1939.41
6. 16.05.2009 to 21.08.2009 13.85 $939.00 $23.48 $2276.39
7. 22.08.2009 to 20.11.2009 12.85 $959.90 $23.99 $2157.90
8. 21.11.2009 to 19.02.2010 12.85 $969.40 $24.23 $2179.49
9. 20.02.2010 to 21.05.2010 12.85 $989.90 $24.74 $2225.36
10. 22.05.2010 to 20.08.2010 12.85 $986.90 $24.67 $2219.07
11. 21.08.2010 to 19.11.2010 12.85 $985.50 $24.63 $2215.47
12. 20.11.2010 to 18.02.2011 12.85 $996.40 $24.91 $2240.65
13. 19.02.2012 to 19.05.2012 12.85 $1054.70 $26.36 $2371.08
14. 20.05.2012 to 13.11.2012 25.28 $1054.50 $26.36 $4664.67 TOTAL $32,886.32

Amendments 26 November 2012 - Typographical error. "... None of those earlier radiology reports ..." should read "... One of those earlier radiology reports ..." Amended paragraphs: [77] 27 November 2012 - Typographical error: "… None of those earlier radiology reports from those x-ray examinations were tendered in evidence in these proceedings." should read "… One of those earlier radiology reports from those x-ray examinations were tendered in evidence in these proceedings." Amended paragraphs: [77] 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: 27 November 2012