Kearney v Ballyfore Engineering & Excavations Pty Limited

Background 6Mr Kearney was born on 10 August 1971 in New Zealand and is currently aged 39 years: he was 32 at the date of the incidents. He left school at the equivalent of Year 10 and worked as a courier, a farm hand, in retail and later as a forklift driver, excavator and truck driver. 7In 1995, Mr Kearney migrated to Australia, after which he worked as a labourer and then truck driver in Brisbane. He then moved to Melbourne with his first wife and son Jacob, where he drove trucks for an average of 80 hours per week. For three to four years during the period in which Mr Kearney was living in Melbourne, he was self-employed in a landscaping and lawn mowing business, however, he had a strong preference for truck driving (Transcript, p 25). 8In 2000, Mr Kearney moved to Benalla and later Shepparton where he continued to work as a truck driver. In early 2002, Mr Kearney settled in Sydney with his second wife, Kristen. Initially, Mr Kearney worked on a casual basis driving forklifts for 60 hours per week. He later worked for various companies as a truck driver and excavator operator, averaging between 50 and 100 hours per week up until October 2003. 9Mr Kearney's evidence was that he had acquired a high level of competence in truck driving and that "it's something that I love doing. It's, yeah, it wasn't just work" (Transcript, p 24). He described his work as his "dream job". (Transcript, p 25).

Employment with Ballyfore 10In October 2003, Mr Kearney began working for Ballyfore on a full-time basis, averaging between 60 and 70 hours per week. Primarily, he worked at the Water Point Development Site (although Mr Kearney did some work for Ballyfore with the Lane Cove Tunnel construction). At the time of the accident, Mr Kearney was living at 17 Booker Road, Hawkesbury Heights. Generally, he would leave home at 4.00am to commence work at 5.30am, and return between 4.00pm and 8.00pm. His duties ranged from being a truck and dog trailer driver, performing maintenance on the trucks, directing the excavator operators when loading the trucks, and acting as the excavator operator when relief was required, for example, when the operator went on holiday or sick leave (Transcript, p 31). 11Mr Kearney gave evidence that the principal of his employer, Ballyfore, was Mr Brendan Cronin, with whom he got on well. Mr Cronin was also the foreman of the site, engaged through Ballyfore by Billbergia, although there is some doubt as to the level of Mr Kearney's knowledge of this status.

Work conducted at the Billbergia building site 12For three or four months leading up to the accident, and while employed by Ballyfore, Mr Kearney was working on a large Hino truck and dog trailer combination owned by Billbergia, and he took his instructions from Billbergia. There was a large amount of sandstone that needed to be excavated out of the Billbergia site in order to allow for the further construction of industrial complexes, in addition to three towers of 10 to15 storeys already built there, so that the site resembled a quarry (Transcript, pp 27-28). Mr Kearney's predominant function was carting excavated 13There were six trucks, an 85 tonne excavator and at times, two 20 tonne excavators working at any one time to remove the material, which Mr Kearney recalled totalling 6 million tonnes of sandstone. 14The truck and dog driver was operated in conjunction with the 85 tonne Hitachi excavator. A large bucket or claw was attached to the excavator. It was used to pick up spoil and rocks and place such material in the individual trucks which would remove the material from the site. The claw was able to lift 6 tonnes of material. Ordinarily, the material that Mr Kearney was responsible for removing was spoil, consisting of sandstone rocks crushed into smaller pieces, and sometimes large round boulders.

The incident of 22 February 2004 15On 22 February 2004, Mr Kearney was instructed to work with large sandstone flat boulders (hereinafter "flat-faced boulders") that had been separated out from the spoil to allow for their separate transportation. Mr Kearney had completed one day's delivery (or possibly two days' delivery at a maximum) of the sandstone boulders, which may have occurred the day or so before the accident. These large sandstone boulders varied in shape and size, but were as large as three metres by two metres in size and weighed four to five tonne each. There was no additional crushed material or other spoil in these loads. 16The Hino truck, driven by Mr Kearney, was being used for these boulders not crushed material. The large boulders were flat on their faces and would not, therefore, roll. They were large, and, the combination of those two factors, meant that it is far more likely, as Mr Kearney attests, that these particular boulders needed to be placed in position. While crushed material (and boulders/rocks that were not flat-faced) would be evenly distributed by gravity (i.e. move or roll into position), that is not so in this case. 17The two or three days on which Mr Kearney transported these boulders were the only days that the Hino truck was used for that purpose. Other drivers, with other trucks (which had previously been used for other boulders), attempted, but failed, to manoeuvre into the more tightly confined areas at which this loading occurred. 18The operator of the aforementioned 85 tonne excavator was Mr Keith Haslip, with whom Mr Kearney had been working "every day ... [with] about eight loads a day". Mr Kearney and Mr Haslip would work together without any other person participating in that particular process. 19Mr Haslip was lowering the load of his excavator bucket into the back of the truck that Mr Kearney was driving. Mr Kearney gave evidence that the size, weight and shape of the boulders created potential difficulties, in that, if the boulders were not evenly distributed, they could become jammed when being unloaded, or could cause the truck to become unstable, when being driven. Mr Kearney was particularly concerned about this due to the windy roads to the delivery point at Dural and difficulties in manoeuvring at the Dural site on delivery. Due to the size and shape of the bucket, Mr Kearney said that it was not possible to retrieve or rearrange the boulders once they were inside the truck. There were between 12 and 20 rocks per load (Transcript, pp 29-30, 36, 41-42; Exhibit B, pp 7-8).

The positioning and use of the truck 20There was some evidence, relevant not only to the method of loading the truck and the circumstances of the incident, as to the position of the truck relative to the excavator, for the loading of the large boulders. 21The uncontroverted evidence is that no other truck could accommodate these larger flat-faced boulders. Other trucks (and on other occasions the truck Mr Kearney was driving) were used to transport crushed material and, when the trucks were to be loaded with crushed material, the truck driver would drive forward to the spot where the loading was to occur. The loading, in that situation, was from the side. 22For the loading of these large flat-faced boulders, the bucket of the excavator was placed into the truck, so that the boulders were not dropped, but placed in the truck. The truck was loaded from the rear because, if loading were to occur from the side, the bucket, with the boulders, did not fit into the truck (Transcript, p 89 et seq.). 23The rear of the truck (and trailer) was slightly higher than the sides. There were three stockpiles of fill and, at least while loading crushed material, the excavator was on a base (usually created from fill or rock) about 1.5 metres above the ground level where the truck being loaded was situated. According to Mr Haslip, the excavator operator, the same system was used for loading rock and for loading crushed material. Mr Kearney did not agree that the base under the excavator was 1.5 metres higher than ground level, when the large sandstone boulders were being loaded. However, he did agree that the excavator was slightly higher than the truck in such circumstances.

The giving of directions 24Mr Kearney and Mr Haslip both agreed that, in the ordinary course of deliveries, that is, with the loads of crushed material, the excavator was positioned 1.5 metres up on a stockpile, so that the excavator operator could see into the back of the truck. The trucks would queue as they waited and would be loaded sideways. There was a system of signalling to the queued trucks by sounding the horn of the excavator in order to direct the drivers, and the drivers remained in their trucks (Transcript, pp 90 and 154). Mr Kearney gave evidence that the bucket of the excavator was "very, very fine, very easy to operate" with, ordinarily, manoeuvrability and ample visibility (Transcript, p 32). This evidence is uncontroverted and uncontroversial. 25Because the sides and rear of the Hino truck were about two metres high and were solid metal, and the base of the tray was also made of metal, one could not see into the rear of the truck from the ground level (Transcript, p 39). Because of this, according to Mr Kearney, the only way he could ensure the large sandstone boulders were evenly distributed and not placed such that jamming or instability would occur, was to climb a fixed ladder adjacent to the driver's side cabin of the truck, which was approximately three metres above the ground, and give directions as to the positioning of the boulders in the bucket to Mr Haslip from this position (Transcript, pp 39, 95-97). 26On the day in which Mr Kearney was injured, Mr Haslip said that he followed his usual procedure: "as I always do. As I say, they pull up, I barp the horn, I load the truck, barp the horn, and they drive away." He did not recall seeing Mr Kearney on the side of the truck giving him directions about how to load the truck. Nor did he recall speaking with him about loading the sandstone, and him giving directions, in the days preceding the incident. Mr Haslip also stated that the drivers "know they are not allowed up there [on the truck ladder]"; he had never used hand signals with any of the other drivers nor could he recall seeing any drivers standing on the trucks' ladders during loading (Transcript, pp 159 and 163).

The discrepancies in evidence 27While Mr Kearney has a clear interest in the success of his proceedings, he answered questions candidly and often against his own interest. If there were exaggeration by Mr Kearney, it related to the significance of his injuries, which will be considered later in these reasons, and, even then, not because of any desire to mislead and not to any significant extent. 28Mr Haslip has no direct interest in the outcome of the proceedings and, therefore, is an independent witness. His manner and attitude, more by demeanour and tone than otherwise, disclosed that he did not want to be considered as having acted (however inadvertently) in a manner that caused such injuries, and, for that reason, may have reconstructed with an explanation that minimised his role. Further, and far more importantly, for Mr Haslip, this was not a particularly memorable or significant event and his evidence of the conduct was derived by assuming that this particular occasion was an example of the general practice that he usually undertook. But this occasion was not usual. 29Both Mr Kearney and Mr Haslip were, to the best of their abilities, on the foregoing issues (and the question of "hand signals" with which these reasons will shortly deal), being truthful. The differences between them were related to reliability. 30Both Mr Kearney and Mr Haslip accepted that the trucks had to be loaded evenly. Mr Haslip suggests that the boulder fell or moved into place evenly (or sufficiently so). While accepting that generally this would occur, for all of the foregoing reasons, I do not accept it would have occurred on this occasion, and, whether or not it would, I accept that in loading the Hino truck some guidance was necessary. 31Mr Kearney stated that, on the previous day (or possibly the day before) when Mr Kearney was first loading the sandstone boulders, Mr Haslip said he could not see the floor of the truck because of the tailgate. Mr Haslip then told Mr Kearney: "Well, hop up on the ladder and give me a hand, hand signals" or words to that effect. Mr Kearney said that he followed the instructions given by Mr Haslip (Transcript, pp 38-39, 95-97). 32By contrast, Mr Haslip's evidence was that no direction was required from the driver when loading the crushed material, and that "there [was] no real difference" when it came to the sandstone boulders. Mr Haslip said that his job was to ensure that the weight was evenly distributed with both the crushed material and the boulders. With the boulders, "you pick them up one at a time and place them on the truck and they roll into the position. When you are used to it, there is no real problem" (Transcript, p 156). It should be noted that boulders, other than flat-faced boulders, were loaded from time-to-time in various trucks. 33Mr Haslip's evidence was that the excavator loaded the trucks from the same position, using the same procedure, regardless of whether crushed material or sandstone boulders were being loaded: "If the load was sandstone, you would rebuild the platform and level it out, and you would get on top, and then you pulled the sandstone up to yourself and you loaded it out" (Mr Haslip, examination-in-chief, Transcript, p 154). 34However, Mr Kearney gave evidence that a different procedure was adopted for the flat-faced sandstone boulders. Mr Kearney's truck was the only truck being loaded with the sandstone flat-faced boulders (one or more other trucks had tried unsuccessfully) and, due to the size of the boulders, the truck had to be loaded with the bucket coming in from behind, as it would not fit sideways. The excavator was positioned only "slightly higher" than the truck or was more or less level with the truck (Transcript, pp 88-89, 98). 35Moreover, on the estimates of distances and heights given by each of Mr Haslip and Mr Kearney, I do not accept that all of the internal base or floor (tray) of the back of the truck could have been seen by Mr Haslip and some guidance would have been essential. 36I prefer, in this regard, the evidence of Mr Kearney and find that, in accordance with his evidence, directions were sought and given and that Mr Kearney was required to climb the truck ladder for that purpose.

Circumstances of the incident of 22 February 2004 37The truck ladder from which Mr Kearney says he gave the directions was 20-30cm from the top corner of the back of the truck. From this position, Mr Haslip could clearly see Mr Kearney's directions in his line of sight. There was no elevated platform or other site from which Mr Kearney could properly direct the excavation operator, and Mr Kearney assumed the truck ladder was there for the purpose of checking the load (Transcript, pp 33-34; Exhibit B, pp 6-8). 38In the usual course of events, including earlier that day and on a previous day, the bucket would be brought down close to the tray of the truck or on top of any boulders already unloaded, and gradually Mr Haslip would open the bucket so the rock was slowly and gently unloaded. 39On the occasion when Mr Kearney was injured, Mr Haslip had already placed a number of boulders into the truck safely by allowing the boulder to move slowly out of the bucket into the truck from a very small height and with little impact (Exhibit B, p 8). Each boulder was lifted separately. Mr Kearney said he felt safe on the truck ladder while this was occurring: "I didn't have a problem. Every rock was put down within probably 10, 15 millimetres of where I said. It was gently put down". Mr Kearney was in no danger from the bucket itself, as it was not passing near him (Transcript, pp 39-40). 40Mr Kearney gave evidence that a sandstone boulder was then dropped a metre or a metre and a half above where it was meant to go so that it landed at a high speed and with a heavy crash, causing severe reverberations. Mr Kearney said that he had experienced reverberations from impacts before, which were negligible in comparison with this. Because of the intensity of the reverberations, Mr Kearney was unable to hold onto the truck ladder and was shaken from the truck, falling from the truck ladder to the ground. His right foot was caught in the truck ladder and he landed on his left ankle and his buttocks then struck the ground. Mr Kearney stated that: "my left foot hit the ground first. It didn't even slow me down" (Transcript, p 99; Exhibit B, pp 6-8). 41Mr Haslip simply denied dropping a large rock into the back of Mr Kearney's truck causing him to fall (Transcript, p 166). I accept the evidence of Mr Kearney on the occurrences on the day, for the reasons already given. 42Mr Kearney gave evidence that as he landed he heard a snapping sound in his ankle, and his right leg was vertical while his trunk was twisted. He was stunned and thinks he blacked out or was "very badly dazed". He felt severe pain in his left ankle, which quickly became swollen. He was also aware of some, albeit lesser, pain to his lower waist, pelvis and buttocks (Transcript, p 100; Exhibit B, p 10). 43Mr Kearney said he remained on the ground while Mr Haslip checked to see if he was all right, and Mr Kearney says that Mr Haslip then telephoned Brendan Cronin, the manager of Ballyfore. Mr Cronin attended the scene and inquired as to Mr Kearney's health (Transcript, p 100; Exhibit B, p 10). 44Mr Haslip gave a similar account. He recalled seeing Mr Kearney "beside the truck, or behind the truck, and he was holding his leg", standing up rather than on the ground and probably on the passenger's side. He got out of the excavator and went down to see Mr Kearney, who said "he had fallen off the truck and hurt himself". For that reason, Mr Haslip notified Mr Cronin (Transcript, pp 158-159, 167). 45Mr Kearney gave evidence that he told Mr Cronin "I'm a bit groggy. Give me a bit and I will see if I can drive". Mr Kearney did not mention that he had been on the truck ladder. Nor did he mention that he had been loading the sandstone boulders. 46After resting for some time, Mr Kearney resumed work. Once the boulders were all loaded, Mr Kearney proceeded to drive his truck to the delivery site. After 10 minutes, he experienced severe and increasing pain in his left ankle, with some lesser pain in his back. Mr Kearney informed his manager that he would deliver the load and then attend his personal doctor due to the severity of the pain (Transcript, p 100; Exhibit B, p 10).

Treatment following the injury on 22 February 2004 47Mr Kearney then went to see his general practitioner, Dr Hesham Rezk, on either 22 or 23 February 2004, but in any event on the day of the injury, and/or immediately afterwards. Dr Rezk was based at the Springwood Family Medical Centre. Mr Kearney's left ankle was very swollen by this stage, and Dr Rezk sent him for x-rays on his left ankle. Mr Kearney also gave evidence that he mentioned his back pain to Dr Rezk, but that Mr Kearney was more concerned with treatment to the left ankle. Mr Kearney returned to see Dr Rezk the next day, and continued to see him on a number of occasions (Transcript, p 43; Exhibit B, p 11). 48In late February 2004, Dr Rezk referred Mr Kearney to Dr Sherif Rizkallah, an orthopaedic specialist at Nepean Private Hospital. The referral was for treatment of Mr Kearney's left ankle, and Mr Kearney did not receive any treatment in relation to his lower back. He was provided with a Rocketsoc for stability and advised to keep off his ankle in order to avoid surgery. Mr Kearney gave evidence that he then spent the next four weeks on his back with his left foot elevated, while his lower back continued to ache constantly during this period. Mr Kearney also attended physiotherapy for his left ankle three to four times per week (Exhibit B, pp 11-12).

The incident of 5 April 2004 49On or around 24 March 2004, Mr Kearney returned to work on full duties. He was working on the "gofer" truck moving bits of road base or clay and dumping it, in preparation for removal by the other trucks. He gave evidence that he was in significant pain; he had substantial bruising to his buttocks; and that he could barely sit on his seat while driving the truck. Mr Kearney said that at this time "probably about ninety per cent of my body was in a heck of a lot of pain". He mentioned the pain to one of his bosses. He was aching from his back to his knees, but he was able to manage performing these duties, at least initially. 50On 5 April 2004, Mr Kearney lifted the draw bar of the truck trailer for the first time since returning to work. During lifting, his back pain intensified and he felt an "immense ... almighty burning pain" in his back. Mr Kearney said that he had performed this task "hundreds or thousands of times before with no problem". 51Mr Kearney was cross-examined on the lifting of the trailer's draw bar. The draw bar was required to be lifted as it had dropped down approximately 10-15cm, because the block on which it was resting had sunk in the mud. He conceded that it would be difficult to lift the draw bar from ground level. He estimated that the weight of the bar would be 80-100kg, and lifting by an individual was not impossible, but in fact performed regularly if it had not dropped too far. There is no jack for lifting the draw bar in the truck (Transcript, pp 103-105, 114). It was suggested to Mr Kearney in cross-examination that the bar weighed 200kg. 52The injury was not reported, but Mr Kearney informed one of his co-workers, who was the son of one of the bosses, of the injury (Transcript, pp 44-45, 100). 53Mr Kearney cannot accurately recall whether he worked for the rest or some further part of the day, or whether he went immediately to the doctor before he realised that his back injury required specific medical attention (Transcript, pp 44-45). There is conflicting evidence on the precise timing, but it is peripheral to any issue on which the outcome of these proceedings depends. 54Some significant submissions were put by Billbergia based on the "impossibility" of lifting the draw bar and that, as a consequence, the evidence of Mr Kearney (that he had lifted it "thousands of times") lacked credibility. It was suggested in questioning of Mr Kearney that the draw bar was 200kg. Mr Kearney estimates that it was 80-100kg. It may be that Mr Kearney's estimate refers to the effective weight, that is, the weight he was required to lift. 55Further, it was suggested in questioning that the draw bar was too heavy to lift. Mr Kearney conceded, firstly, that the weight of the draw bar did not change; and, secondly, that he would find it extremely difficult to lift the draw bar from ground level. 56No expert evidence was adduced on these issues. While the Court is not entitled to utilise its own expertise in this area (if it had any), the Court nevertheless rejects the criticism of the evidence. It does so on two bases. 57First, if it were seriously contended that the lifting of the draw bar in the manner described was impossible (or even extremely difficult), some expert (or other) evidence to that effect could have been adduced. Secondly, while the weight of an object does not change (leaving aside for present purposes different gravitational forces at extreme heights), the force required to lift a constant weight will alter. This is common experience of anyone who has used a wheelbarrow. Like the draw bar, a wheelbarrow uses a fulcrum to bear part the weight of the goods being transported. A draw bar has a fulcrum (i.e. it is hinged at the trailer) and the force necessary to lift the bar will depend on the length of the bar, the distribution of the weight along the bar and the height of the end being lifted relative to the height of the hinged end. 58As explained by Mr Kearney, the height of the bar will, at least, determine the capacity to lift using safe methods such as lifting primarily using one's leg muscles. Mr Kearney's evidence, while not in those terms, was to that effect. On the foregoing basis, the Court rejects the view that it was "impossible" or "near impossible" to lift the draw bar in the manner described. The Court accepts that such lifting occurred on many previous occasions without difficulty or injury. 59To the extent that counsel for Billbergia seeks to have the Court rely on "common knowledge" that the effective lifting weight of a bar does not fluctuate, I have no such knowledge. Further, I have knowledge to the opposite effect. I thought it was "common knowledge" that the effective weight in such a situation was determined by dividing the total weight of the bar by twice the value of the cosine (cos) of the angle from the horizontal. In other words, a towbar, hinged 1 metre from the ground, 1.5 metres long, weighing 100kg, would be: an effective weight at horizontal of 50kg; an effective weight after dropping 15cm of approximately 50.25kg; and an effective weight at ground level of approximately 66.67kg. If the towbar were to weigh 200kg, assuming other factors remained constant, the effective weights would be 100kg, 100.5kg and 133.34kg respectively. The foregoing assumes even weight distribution and lifting at the end of the bar. 60It is sufficient for my purposes to note that common experience is that lifting one end of a heavy weight, fixed or hinged at the other, is that it is significantly less than the weight of the whole object and is progressively more difficult as the end to be lifted gets lower. Anyone who has carried a heavy object up or down stairs appreciates that the lower level of the object is heavier than when the object is horizontal or if one were carrying the higher end. Mr Kearney's evidence accords with common experience, even amongst those who have not studied basic applied mathematics!

Treatment subsequent to 5 April 2004 61The treatment Mr Kearney received after the further injury of 5 April 2004 has been extensive and is ongoing. 62On 6 April 2004, Mr Kearney saw his GP, Dr Rezk, for his back. On 7 April 2004, Dr Simmons conducted a CT scan of Mr Kearney's lumbar spine. Physiotherapy on Mr Kearney's back commenced on 8 April 2004 with Janette Krzystzton of Spinal and Muscle Solutions, Springwood (Exhibit B, p 13). 63On 28 April 2004, Mr Kearney was referred to Dr Charles New, an orthopaedic and spinal surgeon, based at Penrith. Dr New arranged an MRI scan on Mr Kearney's lumbosacral spine. 64Mr Kearney changed his General Practitioner from Dr Rezk to Dr Ha Tran of Sefton, on 5 May 2004, because he moved house to Chester Hill and then to Bass Hill. Almost immediately, Dr Tran referred Mr Kearney to see a neurosurgeon, Dr Simon McKechnie, who ran further tests including EMG, an MRI, CT scans and x-rays. Mr Kearney made numerous visits to Dr McKechnie during May to July 2004, and also saw another orthopaedic specialist, Dr Derrick Billett (Exhibit B, p 14). 65Following these consultations, Dr McKechnie advised that, with Dr Tran's permission, Mr Kearney could return to part-time light duties with a 5kg lifting restriction for a maximum of four hours per day, three times per week. However, Ballyfore's workers' compensation insurer, Vero Workers Compensation, informed Mr Kearney that there were no positions available which were suitable (Exhibit B, p 14). 66Mr Kearney continued to have problems with his left ankle during this period. He had x-rays in August 2004 and was then referred to an orthopaedic specialist in Bankstown, Dr Kalnins, on 16 September 2004 and 15 February 2005. Dr Kalnins recommended certain exercises and that Mr Kearney minimise pressure on his ankle (Exhibit B, pp 15-16). 67Dr Tran then sent Mr Kearney for hydrotherapy and physiotherapy on his lumbar spine, lower limbs and left ankle from Mr Harry Touma at Hydroworks Physiotherapy and Hydrotherapy Centre at Bankstown. 68A pain medicine specialist, Dr Manohar, treated Mr Kearney from 14 December 2004. Subsequent visits occurred on 25 January 2005, 1 February 2005, 8 February 2005, 12 February 2005, 5 April 2005, 12 April 2005, 13 May 2005, 7 June 2005, 21 June 2005, 4 July 2005, 25 July 2005, 15 August 2005, 17 August 2005, 29 August 2005 and 12 October 2005, and Dr Manohar provided a report to the plaintiff's solicitors on 9 January 2006. Dr Manohar sought to give Mr Kearney assistance through spinal injections carried out by Dr Lim on 20 May 2005, 10 June 2005 and 15 July 2005, but little relief was achieved. Mr Kearney estimated that he received approximately 17 or 18 injections during this period. 69Because no progress was made with the injections, and because Mr Kearney was experiencing severe pain, he was sent to another neurosurgeon, Professor James van Gelder, on 24 March 2005. Mr Kearney also saw Professor Fearnside, a neurological surgeon, on 20 May 2005, 28 September 2006 and 9 October 2008, Dr Bernie Kwok, a neurosurgeon, on 12 August 2005, and Dr Dennis Cordato, a neurologist, on 20 October 2007 (Exhibit B, p 16). At this time, Mr Kearney was on a range of medications, including Endone, Valium, Oxycontin, Epilim and Endep. Dr Henry Stenning, a musculoskeletal specialist, also assessed Mr Kearney on 15 February 2005. 70After a number of consultations with Dr Manohar and Professor van Gelder on 10 June 2005, 17 August 2005, 18 October 2005 and 6 December 2005, it was decided that Mr Kearney would undergo surgery on his lumbar sacral spine. Mr Kearney gave evidence that before the operation, he was experiencing very severe, but fluctuating, pain in his lower back, which was "impacting on me financially, in relation to the amount of physical work I could actually do, as well as psychologically". Professor van Gelder and Dr Crosier performed the operation on 20 March 2006. The surgery was an anterior lumbar fusion operation. Mr Kearney was discharged on 24 March 2006, and follow-up consultations occurred on 28 March 2006 and 7 July 2006. While Mr Kearney experienced some initial improvement in his back pain, his condition has since deteriorated such that he requires significant amounts of medication. Mr Kearney gave evidence that: "since the surgery, my condition has basically got worse. I am able to do less and I found I needed to consume increased analgesics to control the pain" (Exhibit B, pp 22-24). By October 2008, Mr Kearney was using a walking stick for mobility especially when out of the house, and was "simply unable to cope with even the lighter requirements of the work" (Exhibit B, p 26). 71Mr Kearney also saw Dr John Stephen on 13 November 2006 and Dr A Bhattacharyaa on 13 November 2006 and 8 May 2007, both of whom are orthopaedic specialists. Mr Kearney also saw Dr M Eagleton, surgeon, on 1 August 2007 and Dr J Matheson, neurosurgeon, on 8 August 2007, qualified by the first and second defendants respectively. 72Mr Kearney saw Cathy Glanville, physiotherapist, on 15 August 2007; Dianne White, occupational therapist, on 15 August 2007; Nick Ratcliffe, regarding domestic care needs, on 24 September 2007; Dr E Matalani, occupational therapist, on 14 July 2008; and Dr Clive Kenna, an assessor from the Motor Accidents Authority, on 18 September 2009. Mr Ratcliffe recommended levels of ongoing care that Mr Kearney will require.

Occupational rehabilitation and employment prospects 73From August 2004, Mr Kearney had also been receiving assistance from Injury and Occupational Health ("IOH"), which was nominated by Mr Kearney's workers' compensation insurer, and which was funded by Vero Workers Compensation. Reports and letters of advice were prepared by IOH on 7 September 2004, 11 October 2004, 28 January 2005, 5 March 2005, 24 March 2005, 30 April 2005, 30 June 2005, 29 July 2005, 1 August 2005, 2 September 2005, 21 October 2005, 28 November 2005 and 30 December 2005, which detailed attempts to prepare Mr Kearney to re-enter the workforce. These reports include vocational assessments (Exhibit B, p 15). 74During this process, Mr Kearney attempted to gain employment. He commenced a small business management course at Rydalmere two days per week from April to 21 July 2005. Mr Kearney applied for a number of sales jobs, which IOH had been suggesting he pursue, but was unsuccessful. Mr Kearney was offered a job selling house cladding, security shutters and guttering but gave evidence that "because of severe back pain and ankle problems I was unable to manage this type of work which would involve a lot of travelling and walking and being on my feet" (Exhibit B, p 17). 75Instead, Mr Kearney decided to purchase a lawn mowing business in April or May 2005. This type of business had not been recommended by IOH, however, as noted above, Mr Kearney had had previous experience in Victoria, in conducting a lawn mowing business. IOH assisted Mr Kearney in developing a business plan for the lawn mowing business. Mr Kearney was aided in the lawn mowing business by a number of subcontractors, and he used a ride-on lawn mower. 76Mr Kearney gave evidence that: "I believed I would be able to undertake a lawn-mowing business where I worked on the administrative requirements of the business within the limits of my physical abilities and I could also attend lawn mowing on a ride-on mower, with the capacity to employ my wife and other workers to attend the activities involved which I could not undertake myself because of my disabilities". 77At the request of IOH, Dr Tran certified that Mr Kearney could safely complete the work required in the lawn mowing business without aggravating his injuries, provided the work was primarily of an administrative character. In agreement with IOH, Mr Kearney worked in the lawn mowing business for no more than eight hours per day for four days per week. His duties were limited to lifting up to 10kg and had to avoid prolonged sitting or standing or movements likely to strain his back. IOH were to monitor and review Mr Kearney's work (Exhibit B, pp 18-20). 78Mr Kearney also gave evidence that he: "had an offsider who did the manual work. I was able to operate a ride-on lawn-mower and drive the utility and trailer from jobsite to jobsite. I did no heavy lifting of any of the mowers although I was able to drive the ride-on onto the rear of the trailer. I did assist with some of the lifting, but I was really little use and my offsider was taking most of the weight. I had a Walker brand (USA) Ride-on Lawn-mower which had a comfortable suspension seat and arm-rests and I ran the mower at 1/3 to 1/2 speed. I was working by this stage 14 to 20 hours per week in my business." (Exhibit B, pp 25-26.) 79However, because of the significant pain Mr Kearney was experiencing in mid to late 2005, Mr Kearney realised that he "may have been too optimistic as to what my capabilities were to operate the lawn-mowing business" and wished to re-evaluate his decision to operate his own business following the operation (Exhibit B, pp 23-24). Mr Kearney had problems working for any length of time, which he reported to IOH. However, in late 2005, Mr Kearney gave evidence that he was informed that his case was no longer considered as requiring further monitoring by IOH. 80After the operation, Mr Kearney said that he "felt it was not really possible for me to continue as the proprietor of the lawn-mowing business as, because of my level of pain, I was not improving in my ability to work, and was not making any real profit in running the business. I did not see any prospect of my pain improving" (Exhibit B, p 24). 81As a result of these realisations, Mr Kearney sold the business in June 2009. The sale price was $35,000, which included all equipment and good will. The net income from the lawn mowing business, given the overheads and costs of subcontractors, was negligible, and there was almost no capital gain (Exhibit B, p 29). 82Mr Kearney moved to the Ringham area where he lives with his wife and child on a large, 270-acre property, 48 acres of which is cleared land. Mr Kearney and his wife are able to live there as it is a deceased estate belonging to his wife's relatives. The property is worth $100 per week in rent. In exchange for living rent free, Mr Kearney performs physical work on the property when able so to do (Transcript, pp 9-18).

The relative effect of the two incidents 83The Court has earlier discussed the submission that the lifting of the draw bar by 10-15cm on 5 April 2004 was "impossible" or "nearly impossible". This submission was an aspect of the broader proposition that the cause of the injury was, substantially or wholly, the "lifting" on 5 April 2004, and not the "fall" on 22 February of that year. 84Another aspect of that broader proposition relied on the medical treatment to which Mr Kearney was subject, and the content of the doctors' notes. It was submitted by the defendants (to varying degrees) that the damage, if any, was caused by the later incident and not the earlier one. The defendants submit that Mr Kearney did not suffer a back injury from the earlier incident. For that proposition they rely on the statements to the workers' compensation insurer, after the earlier incident, which only referred to an ankle injury and the specialist treatment received after that ankle injury. There was also an absence of any reference to an injury to his back in the immediately contemporaneous notes of his doctors. 85There is no doubt that following the fall from the truck, Mr Kearney suffered pain in his ankle. This was the source of Mr Kearney's most acute pain. It was the subject of referral by Mr Kearney's general practitioner to a specialist. But Mr Kearney described his fall from the truck as falling on his ankle, hearing a "snap", and continuing through to fall on his backside. He described the pain as "everywhere" and "all over his body" (Transcript, p 114). While it is true that reference was made to bruising on his right buttock, that bruising is consistent with the description of the manner in which Mr Kearney fell and is not inconsistent with back injury. I accept Mr Kearney's evidence in this respect. 86Ultimately, the notes of his general practitioner corroborate the injury to his back, arising from the earlier incident. In those notes, Dr Rezk, on 7 April 2004, long before the initiation of any proceedings and shortly after the later incident, describes Mr Kearney as suffering: "lower back injury following a fall about 6 weeks ago that was exacerbated by lifting his toebar [sic]". 87Dr Rezk accurately describes the cause of the injury. His reference to the later incident "exacerbating" the earlier back injury shows, independently, and contemporaneously, that the back injury was a known effect of the earlier incident. This is independent evidence. Further, as the Court has sought to make clear, were it not for the injury to Mr Kearney's back from the fall on 22 February 2004, then Mr Kearney would have been able, without injury, to lift his draw bar (probably an effective lifting weight of about 50kg), as he had done many times previously. But for the injury on 22 February 2004, there would have been no later injury and, further, the injury on 22 February 2004 is the overwhelming cause (and substantial cause) of all of the back injury. 88The notes from the McKenzie Institute arising from the examination on 8 April 2004 confirm that Mr Kearney's history included the fall from the truck on 22 February 2004 and his current symptoms included a continuation of the lower back pain which had been present from 22 February 2004 (Exhibit C, pp 25-26). Associate Professor Fearnside, neurological surgeon, opined: "As a result of the accident on 22/02/04 and the subsequent aggravation a month or two later, Mr Kearney sustained injuries to his back and on the former occasion, an injury to the left ankle. He has continued to experience back pain symptoms consistent with a right lower limb radiculopathy. There are no focal neurological signs to allow the diagnosis of radiculopathy and I have assessed him as having a non verifiable lower limb radiculopathy." (Exhibit C, p 232, opinion dated 20 May 2005.) 89On 28 September 2006, Associate Professor Fearnside provided a further report in which he said: "Mr Kearney's condition has deteriorated since last seen and following the surgery. His functional capacity has decreased and he has needed to consume increased analgesics to control the pain. ... Prognosis for resolution of his pain is poor. I anticipate that he will continue to experience significant discomfort. There may be some improvement in his pain in the next six months." 90By 9 October 2008, Associate Professor Fearnside had come to the following opinion: "Since last seen Mr Kearney's condition has not improved. He sustained what is most likely a minor injury to the low back of a musculoligamentous and soft tissue nature as a result of the incident on 22/2/04 but went on to have a spinal fusion which has not provided any relief. He continues to be significantly disabled with restrictions on his activities of daily living. He has been unable to return to full-time pre-injury work as a truck driver. He struggles to maintain a part-time job in the lawn mowing business of which he is the proprietor." 91Dr John Stephen, orthopaedic surgeon, in a report of 14 November 2006 diagnosed Mr Kearney in the following terms: "Mr Kearney's situation has deteriorated from a simple back strain producing mechanical back symptoms to one of a chronic pain syndrome with no prospects of improvement in the long term. ... Mr Kearney initially sustained a back strain. The expectation from such a back strain is that recovery would have been complete. Mr Kearney has gone the other way. His back pain has worsened. He has received intensive treatment which has not only failed to relieve his symptoms but is, in all likelihood, largely responsible for the symptom magnification that has accompanied the development of a chronic pain syndrome. Thus, there remains a relationship between the incident of 22 February 2004 and Mr Kearney's current incapacity. This relationship, which normally would have ceased, has been perpetuated in large part by the treatments that Mr Kearney has received." (Exhibit C, pp 264-265.) 92Dr Matheson, consultant neurosurgeon, qualified by Billbergia, in his report of 8 August 2007, considered that: "The first event to be the one that strained his back and lifting of the bar to be an irrelevant event." 93While Dr Matheson, in his report of 31 January 2008, qualified that opinion, he did so only to the extent that it was established that Mr Kearney had no pain in the back from the first incident on 22 February 2004. Since that latter condition is not established, his initial opinion continues and accords with the view and conclusion of the Court. The Court accepts that the symptoms suffered by Mr Kearney, and continuing, arose from the injury on 22 February 2004.

Facts relating to the proportionate liability of Ballyfore and Billbergia 94As already stated, the second defendant, Billbergia, was the principal contractor and occupier of the construction site at which Mr Kearney was injured on 22 February 2004. Further, also as already stated, Mr Cronin, a principal of Ballyfore, Mr Kearney's employer, was engaged by Billbergia, through Ballyfore, as the site foreman. 95There is no evidence to suggest that Mr Cronin, the site foreman, devised any system for the loading of crushed material or rock. The evidence of both Mr Kearney and Mr Haslip, while differing as to the system invoked for loading flat-faced boulders, did not suggest that Mr Cronin, personally or otherwise, was involved in devising the system of loading that was employed for that material, or any other. Ballyfore was not a labour only subcontractor or body hire company. Nevertheless, in some respects, on this site, its operations were intertwined with Billbergia. Mr Kearney was driving a truck provided by Billbergia, on a site occupied by Billbergia, which truck was loaded by an employee of Billbergia, who, according to Mr Kearney, gave the directions as to the system to be employed, and dropped the boulder, which directly led to the accident of 22 February 2004. 96As just stated, Mr Kearney was employed by Ballyfore, whose proprietor or principal was Mr Cronin (Transcript, pp 25, 27). Mr Kearney asserted he took instructions from Billbergia (Mr Haslip), Billbergia being the occupier of the site (Exhibit B, p 4). 97There is some alleged conflict in the evidence of Mr Kearney as to his awareness of the role of Mr Cronin. At one point, Mr Kearney gave evidence that during the proceedings he was not aware that, for the months of work at Water Point Development Site, Mr Cronin was engaged as the foreman of the project. Mr Kearney says he became aware of that "way after" and was not aware that Mr Cronin was providing general supervision in relation to the work conducted by both the Ballyfore and Billbergia workforce. What is clear is that Mr Kearney's understanding was that he was just contracted to drive and that Mr Cronin did not supervise him during the time he was there from late 2003 to February 2004 (Transcript, p 87). 98There is some reference in examination-in-chief, as distinct from the statement (Exhibit B), that Mr Kearney's instructions came from one of Bill Bergia's sons or John Bergia, Bill Bergia's brother, and "very rarely" from Mr Cronin (Transcript, p 35). Mr Kearney does state that he may have been told information about the purpose of the excavation by either Mr Cronin or Mr Bergia (Exhibit B, p 4). 99However, this apparent discrepancy is not an inconsistency. Mr Kearney's evidence that he did not receive instructions from Mr Cronin related to the detailed tasks being undertaken on the site. His evidence as to being given instructions "very rarely" by Mr Cronin related to other matters such as where to work. That certainly is the manner in which the evidence should be understood. 100The "system" implemented for loading the large flat-faced boulders was implemented in relation to the truck Mr Kearney was driving for what seems to be a maximum of three days, including the day of the incident. Moreover, the loading of Mr Kearney's truck occurred approximately eight times per day (Transcript, p 29). Otherwise trucks were loaded with crushed material or round boulders using a significantly different system. 101The evidence before the Court establishes that the truck ladder at the side of the truck was on the driver's side and that, therefore, Mr Kearney was, given the position of the truck, in a position that could be seen, and should have been seen, by the excavator operator. 102There can be little doubt that Mr Kearney fell from the truck. The only part of the truck on which a person could stand (other than in the cabin) and from which a person could fall would be the truck ladder. The undisputed circumstances immediately after the fall, together with the other evidence, render any explanation other than a fall from the truck in the manner described by Mr Kearney to be significantly less probable. The Court has dealt with most of the foregoing earlier. 103Mr Haslip gave evidence of Mr Cronin's supervisory role at the site. While Mr Haslip was, initially, unaware of Mr Cronin's name, in evidence, Mr Haslip identified him from a picture. Mr Cronin's supervision was confined to informing Mr Haslip "what to do in the morning, how many trucks were coming, that kind of thing". The kind of conversation that would occur would be: "Mr Haslip: What are we up to today? Mr Cronin: The surveyor has marked out certain areas for you to rip. When you have got a stockpile, give me a whistle and I will organise the truck to cart it away." The kind of instructions given by Mr Cronin to Mr Haslip, according to Mr Haslip, included the particular type of rock that required transportation (Transcript, pp 156-157). 104Mr Haslip maintained that, on a day-to-day basis, he did not really receive instructions from anyone other than Mr Cronin, but there was a supervisor who, from time-to-time, asked if Mr Haslip needed an extra level and the like (Transcript, p 157). 105Mr Cronin's function as the foreman on the site seems to be quite separate from his functions as principal of Ballyfore. In that sense, Billbergia has subcontracted Ballyfore to perform two quite distinct functions, one as foreman of the site, and the other as driver of one or more of its trucks. Nevertheless, Ballyfore, through Mr Cronin, must have been aware of the system employed by Mr Haslip, but not necessarily the system employed for the flat-faced boulders. Plainly, Mr Kearney was aware of each, as was Mr Haslip. 106Further, the system employed involved the placing of the flat-faced boulders, relatively delicately, whereas, on the evidence before the Court, the particular rock that caused the reverberation of the truck and the fall from the truck was dropped a considerable (in relative terms) distance. This was a variation in the system as it was understood by Mr Kearney and a variation in the system as understood by Mr Haslip (albeit that the understanding of each, according to the evidence, was different). In other words, whether or not Mr Haslip directed or required Mr Kearney to give hand signals and, for that purpose, be in a position at the top of the truck ladder of the truck to observe the placing of the rock, each agreed that the system involved Mr Haslip, as the excavator operator, placing, as gently as possible, each boulder into the truck. 107Mr Kearney gave evidence that Mr Cronin did not instruct him as to how to give the hand signals (Transcript, pp 38, 95-97). 108At the time of the accident on 22 February 2004, insofar as Mr Kearney knew of Mr Cronin's whereabouts, he was out of sight, approximately 100 metres away and 60 metres down a further excavation, where the underground car park of the building was being constructed (Transcript, p 35). 109However, immediately following the accident, and as noted above, it was Mr Cronin who was called by Mr Haslip to attend the scene. Mr Cronin spoke with Mr Kearney and asked him how he was (Exhibit B, p 10).

Conclusions of fact 110The Court, as is obvious from the foregoing, has reached a number of conclusions of fact. 111First, Mr Kearney and Mr Haslip had a conversation in which Mr Haslip requested Mr Kearney to provide guidance as to the placement of flat-faced boulders that were being loaded by Mr Haslip on 22 February 2004. Secondly, that function was performed by Mr Haslip operating an excavator and placing, relatively gently, each boulder into the back of the truck for which Mr Kearney was the driver. Thirdly, for the purpose of giving those directions and/or hand signals, Mr Kearney climbed the truck ladder on the driver's side of the truck almost adjacent to the cabin. Fourthly, in the course of loading the truck, Mr Haslip, instead of gently placing a boulder in the truck, dropped the boulder from a distance of between 1 metre and 1.5 metres. The aforesaid drop caused significant vibrations in the truck and caused Mr Kearney to fall from the truck. 112Further, the second defendant, Billbergia, employed Mr Haslip. Mr Haslip devised the particular system that applied to the flat-faced boulders, which system was a variation on the system that generally applied to the loading of other material. At the time of the accident, Mr Kearney was "lent labour", employed by the first defendant, Ballyfore, to work for the second defendant, Billbergia, driving Billbergia's truck on, to and from a site occupied by Billbergia. 113On 5 April 2004, Mr Kearney aggravated the earlier injury suffered on 22 February 2004, damage from which would not have occurred but for the earlier injury. During the course of these proceedings, questions have arisen as to whether the circumstances that gave rise to the aggravation on 5 April 2004, were circumstances that disclosed negligence on either or both Ballyfore or Billbergia. It may well be that the absence of a jack in the truck to lift the draw bar, and the failure to provide a surface that would prevent the support or block for the draw bar from sinking, were both a breach of the duty of care by Billbergia either in its capacity as the owner/provider of the truck or the occupier of the site. Nevertheless, in the view that I take of this incident, no negligence is disclosed because no damage was caused by the breach of duty. The presence of a jack (or other lifting device) would not, on the evidence, cause Mr Kearney to use it to perform a task performed in similar circumstances many times previously. Further, and for the same reason, no damage was caused by either breach of duty, if there were breaches. 114Because of the operation of the Civil Liability Act 2002 and the need to apportion the respective liabilities of an employer and an occupier of premises, certain other conclusions are needed: Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99 at [33] to [51] inclusive; Hoad v Peel Valley Exporters Pty Ltd [2008] NSWSC 981 at [152] to [159] inclusive. 115Even though Ballyfore was not a labour hire company, or seemingly not, the relationship between Billbergia and Ballyfore, at least insofar as it concerns the operation of Mr Cronin and Mr Kearney, is not dissimilar to that of a labour hire company. In Maricic v Dalma Formwork (Australia) Pty Ltd & Anor [2006] NSWCA 174, the position of a supervisor employed by a labour hire company and hired to the occupier of the premises on which the injured worker was employed was considered. Harrison J also discusses it in Hoad , supra. Similarly to the situation in Maricic , supra, Mr Cronin had, as previously explained, dual roles. As the foreman on the site, he was not solely, or even predominantly, exercising his responsibility on behalf of Mr Kearney's employer. Previous cases are not authority on findings of fact. Nevertheless, the findings in Maricic , supra, confirm that the findings of fact to which the Court would otherwise have come are not outside principle. 116In the circumstances of the incident on 22 February 2004, an employee of Billbergia devised the particular system of work that was operating. As far as the evidence discloses, no employee of Ballyfore, apart from Mr Kearney, was aware of this particular system (which is distinguished from the general system which applied to crushed material and other boulders). 117Secondly, while the system itself involved risks to safety, because the driver of the truck was placed in a position that was potentially dangerous, the injury was caused, not by a failure of the system, per se, but predominantly by the fact that the system was operated negligently, namely, by dropping the boulder rather than placing it. 118The foregoing ought not be taken to suggest that the system was not problematic or a breach of duty. On the contrary, if a different system were operating then the dropping of the boulder would not have caused injury. Nevertheless, the far more substantial cause of the injury was the negligent operation of the system, rather than the risks associated with the system itself. 119Both the employer and the occupier (i.e. Ballyfore and Billbergia), had seemingly unlimited access to the premises. Ballyfore had the opportunity to inspect them. However, as previously stated, there is no evidence to suggest that the particular system implemented for large flat-faced boulders was known to Ballyfore (other than through Mr Kearney himself). Ballyfore had no capacity to discover the negligence associated with the dropping of the boulder. 120There is no direct evidence of Ballyfore's ability to avoid the hazard or shield the employee from the negligence, other than the ability, which I infer, to refuse to undertake the work or to direct Mr Kearney not to leave the truck under any circumstances. Each of those directions would have avoided the accident and each of the latter inferences is available from the nature of the employer's general capacity to direct an employee and the contractor's general ability to refuse work. The contracts between Billbergia and Ballyfore are not before the Court. 121In relation to the foregoing, as also previously stated, the particular system was in operation for a maximum of three days and Mr Kearney's truck (being the only one loaded in this manner) had been loaded some 16 times over the course of two prior days. That circumstance leaves little time for Ballyfore to be aware of the particular system, even in circumstances where Mr Cronin, a senior person within Ballyfore, was the foreman on the site. Further, no previous person had been injured, it seems, by use of such a system or any similar system on that site or in the employ of Ballyfore or Billbergia. Certainly, the Court has no evidence of any previous injury. 122Moreover, if Mr Cronin, or any other senior person in Ballyfore, inspected the process of loading trucks, the vast majority of the time, those trucks would have been loaded using the system that generally applied, rather than the particular system applicable to Mr Kearney's truck for the loading of the flat-faced boulders. It would therefore have been unlikely, even on inspection, for Ballyfore to discover the system as it operated. 123It must also be noted that the direction from Mr Haslip required Mr Kearney to perform his work in a manner that was different from the manner in which it was normally performed and, if Mr Kearney were to have complained about the system or the risks associated with it, that complaint would have much more easily been drawn to the attention of Mr Haslip, and Billbergia, than his own employer. 124While this is not a case where Ballyfore, as the employer, could satisfy its non-delegable duty of care by doing nothing at all, as has been stated, it was the occupier, Billbergia, not the employer, which devised, instituted and maintained the particular system of work. Further, it was Billbergia that controlled the premises and it was Billbergia that supplied the truck, the excavator and Mr Haslip, the employee that operated the excavator. 125The foregoing, amongst other things, seeks to address the factors, addressed by Harrison J in Hoad , supra, at [152].

Continuing disability 126Mr Kearney was aged 32 at the time of the incidents. He suffered, at that time, a number of injuries, including shock, psychological injury, injury to his back, left ankle, left leg, and sexual organs. He has a whole person impairment that has been assessed variously, the minimum level being 20%. Those injuries caused disabilities, including: pain and restricted movement in all injured areas; an inability to work; restricted mobility and agility; inability to participate in social, domestic and recreational activities; insomnia; nervousness; anxiety and depression; deterioration of relations with family and friends; loss of enjoyment of life; inability to stand, sit or lift without aggravation; headaches; the necessity to take medication regularly; and sexual incapacity. 127The level of disability and the level of continuing symptoms is disputed by the defendants. Arising from those injuries, Mr Kearney claims damages for non-economic loss, past economic loss, past superannuation loss, future economic loss, future superannuation loss, adjustment to the compensation reimbursement under the principles in Fox v Wood [1981] HCA 41; (1981) 148 CLR 438, past medical expenses, future medical expenses, past gratuitous care, future paid care and future voluntary care. To the extent of apportionment, the damages, once calculated, need to be adjusted in accordance with s 151Z of the Workers Compensation Act 1987. 128Ballyfore's workers' compensation insurer referred Mr Kearney for testing for functional capacity. A number of reports as to his functional capacity are before the Court. 129On 11 October 2004, he was evaluated and tested. I do not extract all of that report but it is appropriate to reiterate the following summaries: " Critical Functional Limitations: Mr. Kearney exhibited difficulties with the following activities and restrictions should be placed on these accordingly: Walking and Kneeling were rated limited and can only be tolerated safely for periods of less than three minutes, occasionally (less than three times an hour). Crawling was not recommended due to significant increase in reported pain levels to 10/10. Squatting and Stooping were unable to perform by Mr. Kearney due to limited range of movement in his lower back and legs. Lifting and carrying weights greater than the safe maximum limits set out on page 4 of the Results Sheets. Summary of Test Results: The Functional Capacity Evaluation revealed that: + Aerobic fitness was Good and has been well maintained despite lack of activity since the injury. Aerobic fitness levels did not negatively impact on the results of the FCE. + Working positions of sitting was better tolerated than standing and walking . + Loaded or unloaded dynamic activities of lifting and carrying were better tolerated at the bench and shoulder level than below the waist level. + The grip strength of both hands was above normal ; it had a positive impact on the results of FCE. + The pain levels remained at 5/10 or above and showed signs of functional limitation at 7/10 or above. + Manual handling skills were good above the waist level . His skills was unsatisfactory below the waist level due to his pain and limited range of movements of his low back and legs. Conclusions: Mr. Kearney showed significant functional limitation, he was assessed as unfit to return to his pre-injury work duties as a truck driver. Recommendations: 1.Mr. Kearney is suitable to perform sedentary light duties with constant change of postures. 2.Mr. Kearney is suitable to work 2 hours per day, 2 days per week. The working hours could be upgraded gradually as tolerated and as per medical certificate. 3.Mr. Kearney is able to lift up to 3.8kg at the bench and shoulder level; carrying load up to 2.5kg. The repetition is 3 times per hour. 4.Mr. Kearney is not fit to assume posture below waist level such as kneeling, crawling, stooping and squatting. 5.Mr. Kearney is not fit to perform manual handling tasks below waist level. 6.A workplace assessment should be conducted of any identified position prior to place [sic] Mr. Kearney in this position." 130These limitations on work continue. From the available reports, the Court concludes that Mr Kearney had difficulty in adjusting to the limitations on his lifestyle. 131He continued to suffer pain and continued to be treated for it, extensively. Ultimately, on 20 March 2006, he underwent an anterior lumbar fusion. As earlier stated, at least some of the difficulties under which Mr Kearney now suffers are the direct result of the operation, performed for the purpose of trying to ease his pain levels arising from the accident. 132He was referred by Professor Sundaraj of Nepean Pain Management to Dianne Whyte, occupational therapist, who, in a report dated 24 August 2007, referred to Mr Kearney's employment situation in the following terms: "He started up his own lawn mowing business about 2 years ago and minimizes the need to lift the mower by using ramps which pull out from trailer. He uses a ride on mower with an ignition start and is able to mow between 2 and 8 properties per day, depending on the level of pain. He admits, though that if he mows 8 lawns he is unable to walk the next day. He has an assistant who helps him but he is considering selling the business as he finds that he is in too much pain to be able to continue and he is losing money. He tries to work 2-4 days per week, depending on the level of pain. ... Functional Assessment Dynamic Activities 6 minute walk - covered 60m in 2mins He perceives his limit to be about 500m though asked to cease the assessment after 2mins. He walked quickly. He favoured his left leg when walking as he was concerned that his left ankle may 'give way'. He was observed to press on his right groin and there was significant pain behaviour of wincing, limping etc. Stair climbing - Not formally assessed as Mr Kearney was indicating severe pain. Noted to use alternate feet slowly with support of hand rail when descending steps following assessment. Postural Tolerances Definitions as per Dictionary of Occupational Titles Unlimited - able to tolerate over an 8 hr day with regulation breaks. Reduced (Restricted) - can be safely performed with frequent postural changes. Limited - safely performed for less than 3 mins and less than 3 times per hour in 8 hr day. Unable - unable to be safely performed. Not recommended. Sitting (reduced) Reported a tolerance of about 10mins and limited tolerance was confirmed during assessment when he stood and sat frequently during the assessment. Frequent postural readjustment was also noted. He preferred to stand to complete the questionnaires. Standing (reduced) Reports a tolerance of between 10-30mins and most of his weight is taken on his right leg though he alternates between the right and left. Bending (limited) Minimal active movement noted in any direction. Kneeling/Squatting (limited) Not willing to demonstrate. Lifting From waist level Able to lift and carry up to 10kgs for a short time. Floor levels Not assessed. Not able to use correct technique. Grip Strength As measured on Jamar dynamometer right (dominant) hand strength was 54kg/cm and left hand was 52kg/cm. Both results are above average (as per Australian age averages). Pain Behaviour - Mr Kearney was co-operative during the assessments and appeared to put in a maximum effort, though for reduced periods of time. Self limiting was noted and some pain behaviour such as limping and wincing was evidence. He expected increased pain following the assessment. He reported that remaining in any position for more than about 15mins 'destroys him'. DISCUSSION AND RECOMMENDATIONS Mr Kearney presents as a reasonably young man who appeared 'fed up', angry and despondent. He continues to experience constant pain in his lower back and both legs. Right groin is also very painful. He is able to attend to basic self care and a few very light domestic tasks but tends to avoid tasks which he believes may increase his pain. He is very motivated to care for his family financially but is having increasing difficulty working within his lawn moving business. He is considering selling it but has no plans for the future if this occurs. To assist him to manage his pain more adequately it is suggested that he return for 4 individual sessions of Occupational Therapy which will focus on: 1.Practical pain management strategies such as pacing in order to increase his overall level of activity and to target problem employment areas. 2.Structured programme to increase dynamic, postural and lifting tolerances." (Exhibit C, pp 286-288 inclusive.) 133During the course of proceedings a video recording of Mr Kearney performing lawn mowing functions was tendered (Exhibit 2). The recording was taken on or about 3 October 2007. Those functions included utilising a ride-on mower and the operation of a weeder and edger "whipper snipper" with a long arm. During the course of those operations Mr Kearney did not bend or lift heavy weights. It seemed that the weeder/edger was extremely light. Mr Kearney was able to lift the machine in one hand but required two hands to operate it. It is obvious that Mr Kearney had some difficulty with his back during the course of these operations. 134It is also obvious that Mr Kearney is capable of performing some work at least for a short duration and on occasion. It is also clear that during the course of the operation of the ride-on mower Mr Kearney was having some difficulty with his back and was holding it from time-to-time. None of the activities were performed for any considerable length of time. The activities on 3 October 2007 seem to have occurred over some time less than one hour. The next recording was of activities on 16 October 2007 and then on 19 October 2007. On each later occasion the activity performed is not absolutely certain but seems to be gardening/clipping activities. Assuming, as I must, that the surveillance of Mr Kearney extended for a significant period, the proposition that he could perform lawn mowing operations, with some limitations, for less than one hour on one occasion and on two other occasions perform gardening/horticultural activities, also for limited periods, over a two-week period (i.e. three days for one hour each over two weeks), is not inconsistent with the assessment of residual work capacity that is otherwise before the Court. 135In the activities of daily living report by Mr Nick Ratcliff of Total Care Costings, the continuing disabilities of Mr Kearney are recited, as are a number of issues associated with the need for care and a different environment. 136The continuing disabilities suffered by Mr Kearney include pain in his right leg from the hip to the knee; left leg pain from the hip to mid thigh; groin pain on left and right sides; lower back pain; abdominal pain; pain in both buttocks; pain in left ankle; weakness in left ankle (which "gives way"); pins and needles sensation from right knee down leg into foot and toes; pins and needles sensation from above ankle into foot and toes; pins and needles sensation on outer edges of both hands; pain and stiffness in neck (which extends across both shoulders and into shoulder blades); headaches; impaired sleeping pattern; loss of sexual function; problems with bowel; and slight leakage of bladder with severe lower back pain. Mr Kearney describes the pain in his lower back as constant. (Exhibit C, pp 306-307.) 137Mr Kearney's limitations on capacity include: standing tolerance - 10 minutes before the pain in his lower back, groin and legs is elevated and he has to sit and rest; sitting tolerance - 10-15 minutes before his back pain is elevated and he experiences pins and needles sensation in his legs; walking tolerance - 10 minutes on flat even ground before his back, groin, hip and leg pain is elevated, uneven ground avoided due to his left ankle injury; bending forward - can slowly manage to bend but with pain and cannot repetitively bend or remain in a bent position; kneeling/squatting - with difficulty and pain getting up from a kneeling or squatting position; chair in/out - a need to 'push up' with his arms and/or only with assistance; reaching/lifting - no difficulty in reaching but can only reach and lift light items and not repetitively and cannot lift more than 10kg even without reaching; stairs - avoided wherever possible. 138The foregoing is a recitation of the reported disabilities by Mr Kearney. Some of the foregoing would need to be qualified by what can be observed in the DVD recording of his activities on 3, 16 and 19 October, 2007, in circumstances where the report, to which reference is made, was compiled on 28 September 2007. Nevertheless, the testing that was performed for the purposes of the report corroborate generally the reporting of Mr Kearney. 139Further, it is not suggested that Mr Kearney is disabled from all of these activities all of the time. The report itself details much of the continuing disabilities and the circumstances of which complaint is made. The report opines (apparently consistently with an earlier report by Dr Robyn Horsley of 1 April 2005) that "given the length of time since the injury and ongoing nature of the symptoms that the symptoms are likely to persist". 140Associate Professor Fearnside, in his report of 9 October 2008, part of which has already been quoted, traced his history including his capacity to work. On examination, Professor Fearnside descri bed Mr Kearney's disabilities in the following manner: "4.2 On examination, lumbar spinal movements were made almost immobile and he was able to flex his lumbar spine only to touch his knees and with difficulty. There was moderately severe paraspinal muscle guarding although the lumbar lordosis was normally preserved. Straight leg raising was limited to 10 in the right leg and at 30 in the left leg, supine. Pain was reported in the back and in the right leg on raising the right leg. 4.3 Neurological examination of the lower limbs revealed normal tone and power. There was perhaps some weakness of plantar flexion of the left ankle but this was likely due to the left ankle injury rather than a true neurological impairment. There was no measured wasting. The knee and right ankle reflexes were normal, the left ankle reflex decreased when compared with the right. As previously, there was sensory loss on the dorsum of the right and the left foot and along the lateral border of the right foot. There was a lso some minor non-dermatol sensory loss below the knees bilaterally. 4.4 Mr Kearney was able to sit on the edge of the examination couch with his hips flexed to 90 and extend his knees to 0 although there was a complaint of back pain. Dorsiflexion of the ankles did not increase the pain." 141Professor Fearnside then discussed a number of reports and examined documents. He concluded with the opinion already quoted earlier in the judgment, which opines that Mr Kearney "continues to be significantly disa bled with restrictions on his activities of daily living." Further Professor Fearnside said: "6.2 While I accept that Mr Kearney would require some domestic and handyman assistance for the heavier household chores such as cleaning floors and baths, moving furniture and the like, I do not think that he requires the degree of assistance as suggested in the [Ratcliff report]. Were it not for the gratuitous assistance of his wife, he would reasonably require assistance of the order of 3-4 hours per week for activities of daily living and 1-2 hours per week for garden maintenance. 6.3 The equipment costs as recommended ... appear reasonable and necessary. 6.4 Like Dr Cordato, I have concerns about Mr Kearney's capacity for long-term employment. At the present time he is coping to maintain his part-time work as the proprietor of Econo Lawn Care. If he is able to continue his work in this job, he should do so but as the years advance, he may find increasing difficulty. He commented that he was thinking that he may have to stop the lawn mowing business because he was simply unable to cope with the even light requirements as described above. It is therefore more likely than not that Mr Kearney will need to retire from the workforce several years before he would have normally anticipated doing so, aged 65 years. 6.5 Mr Kearney will require future treatment. At the present time he is having regular remedial massage. This should continue on a needs basis, the frequency to be determined by his nominated treating doctors. Similarly, on a needs basis, physiotherapy and hydrotherapy may be of value for exacerbations of pain. Generally, unless there is a deterioration or change in his condition, further radiological investigations such as CT scans or MRI scans would not be necessary. I doubt that he would require any counselling in the future but he may need some psychiatric assistance if his depression worsens or recurs. 6.6 Retraining is an option for Mr Kearney. If he is not able to work in a manual capacity, and this has been his pattern of work since he left school, as a forklift operator or truck driver, he may need to consider retraining for a more sedentary type of job. It would not seem likely he will return to his other pre-injury occupation of landscaping. 6.7 Further operative treatment is not indicated. 6.8 As indicated above, it would be reasonable for him to be provided with domestic assistance from a cleaner or handyman as necessary if he does not have future assistance from family members." (Exhibit C, pp 254-255.) 142The foregoing reports and the evidence accepted by the Court are consistent with the submissions of counsel for Mr Kearney as to the need for future medical care, future paid care and future voluntary care.

Extent of liability 143Ballyfore have a non-delegable duty of care as Mr Kearney's employer. That duty of care, as the description implies, is incapable of being delegated and requires the employer to provide a safe system of work to address any foreseeable risk of injury: Boral Resources (NSW) Pty Ltd v Watts [2005] NSWCA 191. On the other hand, the common law does not impose a duty of care on principals for the benefit of independent contractors engaged by them of the same kind as that which applies to the employees of such principals: Leighton Contractors Pty Ltd v Fox; Calliden Insurance Limited v Fox [2009] HCA 35 at [20]; (2009) 240 CLR 1. 144The employer must, as part of its duty of care, require that reasonable care be taken of its employees, even by others, over whom it has control. In this case, however, Ballyfore had no control over the conduct of Mr Haslip. This is not a case in which Ballyfore has failed to provide suitable plant and equipment to enable the task to be carried out safely: Forstaff Blacktown Pty Limited v Brimac Pty Limited & Anor; Brimac Pty Ltd v Johnston & Anor [2005] NSWCA 423. Nor is it a case where the employer, Ballyfore, knew of the loading procedure for flat-faced boulders and that it was dangerous: Tolhurst v Cleary Bros (Bombo) Pty Ltd & Anor [2008] NSWCA 181. 145The general system of work that was operating was a system that was safe and satisfied the duty of care imposed upon Ballyfore as the employer of Mr Kearney. On the other hand, the particular system of work applicable to flat-faced boulders was, as previously explained, in place for a maximum of two days prior to the accident and something over 16 loads had occurred. 146The common law duty of care imposed on an employer is not one, which requires the employer to guarantee the safety of every employee. Nevertheless the duty does require that the employer sufficiently train the employee and implement a system of work that is safe. In that respect, this employer has breached its duty. It could, quite reasonably, have trained and/or directed Mr Kearney to make clear that, at no stage during the loading of rock, should he be out of the cabin of the truck. 147Nevertheless, it must also be said that the system of work was not the cause of this injury. The injury was caused by the failure to place, as distinct from drop, the boulder into the truck. A safer system of work would have required Mr Kearney not to be on the truck at the time of the loading and would have prevented the injury. There has been no evidence before the Court as to whether, if Mr Kearney were not able to direct the placing of the flat-faced boulders, the task could have been performed, or could have been performed in a different manner. I ignore, for present purposes, the evidence of Mr Haslip that the system of work was identical to the system for general loading, because of the non-acceptance of that evidence based, inter alia, on the conclusion, on the balance of probabilities, that the flat-faced boulders would not have "rolled" into position (see earlier discussion). 148The issue as to liability for negligence and apportionment between the tortfeasors is a matter that must be dealt with pursuant to the terms of the Civil Liability Act , save as to its exemption by operation of the Workers Compensation Act . 149The Court has applied the principles in s 5B, 5C and 5D of the Civil Liability Act in determining the existence of a duty of care, whether there has been negligence and the factual causation. It should also be made clear that the task of loading the truck performed by Mr Haslip was not a task delegated or entrusted to Mr Haslip by Ballyfore, but a task delegated or required by Billbergia. As such Ballyfore is not, pursuant to the terms of s 5Q of the Civil Liability Act , responsible for the manner in which Mr Haslip carried out the task performed. 150There must be an apportionment between Ballyfore and Billbergia. Part 4 of the Civil Liability Act does not regulate such an exercise (see the proviso in s 34(1)(a) of the aforesaid Act). The Court has not been addressed (subject to the capacity to estimate same on the basis of the Fox v Wood claims) on the amount, if any, that is required to be reimbursed to the workers' compensation insurer and therefore the final calculations necessary for the purposes of s 151Z of the Workers Compensation Act will not be dealt with in this judgment. The parties have agreed that the Court should determine the necessary elements of the calculation and the parties would, subject to argument on any minutes that are forwarded, calculate the effect of that on each of the defendants taking into account the provisions of the Civil Liability Act and s 151Z of the Workers Compensation Act . 151From the foregoing and bearing in mind what is a just proportion between the defendants and a just proportion in relation to contributory negligence, the Court will assess the proportion that each party is liable for the damage, and the level of damages will be set out. 152The High Court in Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492 at 494 said: "[10] The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, i.e. of the degree of departure from the standard of care of the reasonable man (Pennington v. Norris [1956] HCA 26; (1956) 96 CLR 10, at p 16) and of the relative importance of the acts of the parties in causing the damage ... . It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case; for example, the circumstances of some cases may be such that a comparison of the relative importance of the acts of the parties in causing the damage will be of little, if any, importance." (References omitted.) (Per Gibbs CJ, Mason, Wilson, Brennan and Deane JJ.) 153In terms of the liability or proportionate liability of the employer, Ballyfore, it is necessary to understand that a perfect system is unnecessary. What must be imposed is a reasonable system. The particular system utilised for flat-faced boulders was not a reasonable system of work and did not satisfy the non-delegable duty imposed upon the employer. Ballyfore did not take reasonable care to avoid the real risk of injury to an employee in the performance of this task by the provision of adequate safeguards or the elimination of the risk. Appropriate training and supervision (by which I do not mean the supervision of every single task) would have eliminated the risk by ensuring that the employee, Mr Kearney, did not leave the cabin of the truck. Moreover, if Ballyfore were to have enquired properly into the system for flat-faced boulders, it would have been informed of the system and, in not seeking to be informed, or requiring Billbergia to inform it, Ballyfore left its employee exposed to what was unknown: Watts , supra, at [69]. 154Bearing in mind the relative culpability for the damage, and the different duties imposed, the Court assesses the liability of Billbergia at 70% of the damage and the liability of Ballyfore at 30% of the damage. Further, the Court takes the view that the lack of care of Mr Kearney, himself, was more than mere inadvertence, but that he had a minor role in accepting the directions of Billbergia as to the particular system of work and/or in reporting any alteration in the general system of work to his employer. The Court assesses Mr Kearney's contributory negligence at 15%, bearing in mind that the overwhelmingly predominant cause of the damage was in the operation of the excavator. Mr Kearney had no role in the casual negligence which occasioned the dropping of the flat-faced boulder thereby causing the injury.

Quantum of damage 155As earlier stated, the Court generally accepts the evidence of Mr Kearney as to the extent of his disabilities. The medical evidence generally supports that proposition and, in particular, the Court accepts the evidence of Associate Professor Fearnside as to the ongoing need for care and capacity to work. Generally, the medical evidence supports the disabilities claimed by Mr Kearney. 156In some cases, the medical opinion is based upon chronic back pain, rather than physiological changes to the spine, but in all cases, with the exception of Dr Matheson, there is an acceptance of the validity of the disabilities claimed. Dr Matheson doubted the genuineness of the claims, but conceded that, at least from a psychological point of view, the chronic back pain probably caused the disabilities claimed. 157No medical testimony suggested that the video recording of Mr Kearney, to which earlier reference has been made, was inconsistent with the disabilities claimed or the assessment given by medical practitioners. 158The maximum amount allowable for non-economic loss is $473,500 and, in the circumstances of Mr Kearney, and his level of pain and suffering, I assess the non-economic loss at $180,000. The Court reiterates that Mr Kearney was born on 10 August 1971 and his life expectancy is agreed. A number of the other matters are agreed, save for the calculations. The agreed gross rate at the time of the accident was $24.10 per hour and I accept that Mr Kearney was working 50-60 hours per week. The calculation should be based on an average of 55 hours, which is $1,325.50 gross per week or $935 net per week. In terms of past residual earning capacity, I assess an average of $200 per week for the period commencing 7 September 2004 and no residual earning capacity between 22 February 2004 and 6 September 2004 inclusive. I would award damages for superannuation on the net past loss at 11%. 159Further in relation to future economic loss I assess earnings at $1,106 net per week and a continuing residual earning capacity of $250 per week from the date of judgment. This is a very slight adjustment to take account of the prospects of employment evidenced by the video (Exhibit 2). Future superannuation must be awarded at 11% of net wage and Fox v Wood taxation adjustment must be calculated on the basis of the workers compensation payments that have already been made. Likewise past medical expenses, all of which have been paid by the workers' compensation insurer, must be added. 160I accept that future medical expenses ought to be calculated by reference to the average s 60 expenses paid by the workers' compensation insurer over the last 3 years and I award past gratuitous care at 10 hours per week at the statutory rate of $21 per hour. 161As to future paid care and future voluntary care, I accept the assessment of Associate Professor Fearnside, and I award damages being compensation for a handyman for 2 hours per fortnight and domestic care of 2 hours per week and that calculation should be based on, in that regard, $40 per week for the handyman and $70 per week for the domestic care. I further award damages for future voluntary care based on 7 hours voluntary care per week at $20 per hour (i.e. 1 hour per day). 162The parties shall discuss the calculations based upon the foregoing and the plaintiff shall file short minutes reflecting agreement on that calculation. If agreement has not been reached within 21 days, the plaintiff shall file short minutes that he proposes, and the Court will list the matter for short submissions thereon. Obviously, the plaintiff is entitled to his costs and to interest. 163The Court orders:

1. Judgment for the plaintiff.
2. The plaintiff file minutes of orders reflecting these reasons within 21 days of the date hereof.
3. Leave reserved to each party to address on any issue affecting the calculation of damages, including any adjustments necessary to account for the time between the hearing and the date of judgment, and on costs and interest.

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: 29 June 2011