Kemble v Gate Gourmet Services Pty Ltd [2012] NSWDC 52 | Case summary

Kemble v Gate Gourmet Services Pty Ltd [2012] NSWDC 52 | Case summary | Zoe

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Introduction 1The plaintiff by amended statement of claim filed on 3 August 2011 seeks damages for an injury he suffered on 2 April 2007. When he attempted to move a trolley heavily loaded with fruit juice containers, it fell over. While attempting to grab the back of the trolley to prevent it falling on him, he suffered the injuries set out below. 2The first defendant (Gate Gourmet Services Pty Ltd, hereafter "Gate Gourmet") is the occupier of the premises, which included the cool room where the plaintiff suffered his injuries. The second defendant, Blue Collar Airport Services Pty Ltd ("Blue Collar"), is the labour-hire firm which sent the plaintiff to work at the first defendant's premises. 3The plaintiff particularises his injuries in the amended statement of particulars as follows: (a)Continuing pain and restriction of movement of the left hand; (b)Inability to use pinch grip between thumb and index finger of left hand; (c)Complex Regional Pain Syndrome of left hand; (d)Stiffness and swelling of left hand; (e)Intolerance of touch to left hand; (f)Intolerance of repetitive gripping or any sustained grip; (g)Continuing interference with social and domestic activities; (h)Difficulty performing tasks such as opening lids, handling implements, tying shoelaces; (i)Difficulty managing domestic chores; (j)Inability to drive a motor vehicle with manual transmission; (k)Reliance on pain medication; (l)Anxiety and stress; (m)Inability to undertake pre-injury employment; (n)Requirement of chronic pain management programme; (o)Stomach and digestive problems due to ingestion of pain killing medication; (p)Loss of libido; and (q)Loss of enjoyment of life. 4The plaintiff pleads the following particulars of negligence against the first defendant: (a)Requiring the plaintiff to work in a confined space in the circumstances; (b)Failing to provide a place with sufficient room for the plaintiff to safely undertake the work task provided to him; (c)Failing to undertake an inspection of the workplace so as to ensure its suitability and safety for the performance of the work task; (d)Failing to warn the plaintiff as to the dangers of moving trolleys in the cool room area, especially trolleys which were not safe or suitable for such use; (e)Failing to ensure that the offending trolley was easily and safely moveable in the circumstances; (f)Failing to ensure that the offending trolley was not heavily loaded so as to render it dangerously heavy in the circumstances; (g)Failing to provide appropriate and properly maintained trolleys; (h)Failing to direct the plaintiff not to perform the task of moving fully laden trolleys in the cool room; and (i)Failing to ensure the existence of adequate shelf space for storage purposes so as to minimise the use of trolleys in the cool room as storage facilities. 5The plaintiff pleads the following particulars of negligence against the second defendant: (a)Failing to exercise care in undertaking an inspection of the workplace as to its suitability and safety for the performance of the work tasks; (b)Failing to exercise care in undertaking an assessment of the safety or suitability of the workplace for the work task; (c)Failing to exercise in devising, instituting or maintaining a safe and proper system of inspection of the workplace with respect of the suitability and safety of the place of work for the work task; (d)Failing to exercise care in devising, instituting or maintaining a safe and proper system for assessment and review of the premises, including the cool room area, with respect to the suitability and safety of the place of work task; (e)Failing to warn the plaintiff as to the unsafe system of work he was required to undertake in the circumstances; (f)Failing to inspect the plant and equipment that plaintiff was required to use, including the trolley located within the cool room; (g)Failing to exercise care in failing to change the place of work or the place for items to be stored on trolleys within the premises including the cool room; (h)Failing to exercise care in failing to direct the plaintiff not to perform the work task in the work place provided in the circumstances; and (i)Failing to ensure the plaintiff was provided with any or any adequate assistance to ensure his safety in all the circumstances. 6The defendants have cross-claimed against each other. On the first day of the trial, I granted leave to the first defendant to cross-claim against the second defendant, as well as to file an amended defence incorporating a s 151Z(2) Workers Compensation Act 1987 (NSW) pleading. I also granted leave to the second defendant/first cross-defendant to file in court a defence to the first cross-claim (T 1-3).

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The plaintiff's accident 7The circumstances in which the plaintiff came to suffer injuries are as follows. About two weeks before the accident, the plaintiff took up duties at Gate Gourmet by arrangement with his employer, Blue Collar. On 2 April 2007, while carrying out his work duties, the plaintiff was required to enter the cool room in order to fill an order for butter products. When he went into the cool room, a trolley which was loaded with containers of orange juice blocked his way. The plaintiff needed to move the trolley in order to get to the dairy products. These were stacked in boxes against the wall behind the trolley. When the plaintiff tried to move the trolley, it began toppling towards him. He attempted to push the wire frame at the back of the trolley to stop it from falling, but was unsuccessful. In the course of attempting to push the wire frame at the back of the trolley, he grabbed the back through the mesh with his hands and, as a result, his left hand suffered injury. 8The trolley initially came to rest on the plaintiff's knees and then fell completely to the ground. The plaintiff called out for help and his supervisor, a man known to him only as "Sonny", and the leading hand, a man called "Parnell", came running in. He told them both what had happened. At Sonny's request, he completed an entry in a registry of injury form which he and Sonny both signed. He was told by Sonny to go straight to the company doctor, a Dr Kyriazis, at Green Square, which he did. Dr Kyriazis put his hand in a splint, and he was issued with a WorkCover certificate. That WorkCover certificate, which is contained in Exhibit A, states that the injury occurred when the trolley fell onto his hands, identifies the plaintiff's employer, and certifies him as being unfit for work. 9Dr Kyriazis also referred him to Dr Myers, a hand specialist. Dr Myers similarly records the injury to the left finger at work, the trolley falling on his hand, and the development of immediate pain at swelling. He recommended surgery. 10The circumstances of the plaintiff's accident and injuries are dealt with in more detail below.

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The plaintiff's evidence 12The plaintiff, who is now 48 years of age, attended school to year 9 and did not obtain his school certificate. He obtained a forklift driver's licence and a heavy vehicle driver's licence, and carried out manual labouring work for most of his working life. He became interested in traffic control and obtained a traffic control certificate from WorkCover so that he could work in a business set up by a friend, which consisted of monitoring and supervising road closures. After about three years, as this business was not a success, he returned to manual work, registering with Blue Collar at the beginning of 2007. Blue Collar sent him to work at the airport and, about two weeks prior to the accident, to Gate Gourmet, where he was required to pick up orders, drive a forklift, unload trucks and generally assist in the assembling of food products for Gate Gourmet for use in relation to airport food orders. 13When the plaintiff first went to the premises of Gate Gourmet, no one from Blue Collar accompanied him. He was shown around the premises by two Gate Gourmet employees, Sonny and the leading hand, Parnell. Once he had been shown the premises by them, he was left to do whatever he thought was right in relation to filling the orders he had to fill (T 28). 14The premises at Gate Gourmet contained a cool room for products which had to be kept under refrigeration. These products, as well as the other products which were being assembled in accordance with the orders, and were moved around the premises on trolleys. The plaintiff was asked at T 30: "Q. Did you on any of those occasions experience any difficulties with the movement of any trolleys? A. Yes. Q. What did you notice in that respect? A. They were all off balance, wonky, half of them were caved in, just the back of them was all caved in and bent, and when you pushed them like they'd wobble like that, and Q. Well, you're meaning they wobbled laterally? Is that what you're trying to describe? A. Seven out of ten were bad, yeah, yeah." (T 30) 15The plaintiff said that many of these trolleys were "just rubbish" (T 30), but that it was no use complaining about their conduction: "Q. When you noticed that some of these trolley were in the shape that you've described, did you do anything about it? A. You just - you were just told to use it or find a good one. If you couldn't find a good one, deal with it. So you just dealt with it." (T 31) 16Part of the premises were set aside for maintenance and repairs. This was a section of Gate Gourmet about 20 metres on the left of the storeroom. Prior to his accident, the plaintiff had taken several trolleys there because they were "just no good" (T 31). He said that the maintenance yard was simply a big yard full of broken trolleys and shelving (T 32). 17On the day in question, the plaintiff was told by Parnell to start filling orders, as there were no trucks to be unloaded. The plaintiff took one of the order forms, which required him to fetch dairy products, and went into the cool room. At the time, Sonny was in his office and Parnell was picking up another order. 18When he arrived, the plaintiff was unable to get to the dairy product section because there was a trolley loaded with orange juice in front of him. He described the trolley and its location on T 36 as follows: "Q. The box, the size of the box, did it - were they to the back of the trolley, to the forward of the trolley, in the centre or sort of all over the place or can't you remember? A. They were just stuck to the - all I saw was the back of them. They were two stacks high at the top and the bottom was all stacked up. Q. So was it fully laden or were there gaps on it? A. Fully laden, yeah. Q. Fully laden? A. Yeah, yeah. Q. Was there one trolley or more than one trolley that was like this? A. There was a couple of trolleys in there. There was. Q. In relation to the dairy products that you were after, where were the trolleys? A. In front of it. Q. So that to get to the dairy products, did you have to do something to at least one of the trolleys? A. Had to move - had to move it. Q. Move it in which way? A. To the left. Q. So you mean sideways? A. I just grabbed it. Yes. Just touched it to the left to move it. Q. So was the trolley positioned so that it appears in the photograph in front of you length to length, parallel with the wall with the dairy products? A. Parallel to the - yes, yes, yes." (T 36) 19As it was necessary to move the trolley in order to get to the dairy products which were necessary to fill his order, the plaintiff had needed to move the trolley, which he commenced to do: "Q. You've told us that the dairy products were on the shelving behind the trolley. A. Yeah. Q. How far from the shelf was the trolley positioned? A. About half a metre. Q. When you came into the cool room, what did you do? A. Moved the trolley to the left to get behind it and it just fell on me. Q. Well, what physically did you do to try and move the trolley to the left? A. I just touched it. I didn't move the trolley, I just-- Q. Did you apply some force to try and move it? A. Just a bit, yeah. Just to the left, yeah, just walked in and grabbed it - moved it to the left. Q. When you tried to move it to the left, did it move, or not? A. It just fell straight on me." (T 37) 20The plaintiff explained what happened in more detail at T 37 line 42: "A. Tried to push it back up, because of the weight of it, it was pushing me backwards. So I leant it on me shoulders to get me hands under it, because I knew I couldn't get it back up. So I got it from here and me hands behind the mesh and it dropped and it just took me hands with it. Then it fell on it to me knees to like this and then I had to try and let it go and just back, and that's what I did, because otherwise it would've got me head as well. So this is on me knees, then I just moved me hands and just back and it's dropped to the ground." (T 37) 21The plaintiff was able to jump back so that the trolley could drop to the ground but his hand had been caught in the mesh. There was a "big bang" (T 39) and Sonny and Parnell came running into the room. Sonny said, "What happened?" and the plaintiff replied, "The trolley just fell on me". Parnell said, "Who loaded that trolley?" and Sonny said, "The trolley's faulty, it should never ever [sic] been loaded." 22Sonny said to Parnell, "Can you go in and take the boxes off it?" and then asked the plaintiff to go out, get into the forklift truck and take the faulty trolley down to the maintenance section. Parnell, however, put the trolley onto the forklift, which was parked outside the dock about 15 metres away, as the plaintiff's hand was "killing me" (T 41). He did not have a chance to look at the trolley when it was loaded onto the forklift. He managed to drive the forklift as far as the maintenance section, where he left it against the wall, along with all the other broken trolleys. 23The plaintiff then went back to the storeroom, where he spoke to Sonny, who said, "You'll be off to go the doctors [sic]" (T 42). Sonny also said, "Your hand looks bad. You'll have to go and get it looked at" (T 43). The plaintiff said, "Where do I go?" and Sonny replied, "Green Square" (T 43). Sonny gave the plaintiff the address of the company doctor by writing it down and also gave him an accident report. He asked the plaintiff to tell him what had happened and he saw Sonny writing on a piece of paper which appeared to be a notepad or pad. The plaintiff repeated what he had earlier said in the cool room and after Sonny had written it down, the plaintiff signed it. He then went to the nominated doctor at Green Square. He had been there once before, for a physical assessment, when he was first employed by Blue Collar, but otherwise had not previously attended this doctor's surgery. 24The plaintiff saw Dr Kyriazis, who examined his hand, put a splint in place, wrote a prescription for Panadol Forte and gave him a medical certificate, which the plaintiff took back to Gate Gourmet. The medical certificate gave the plaintiff five days off work. This was effectively a week, as the day of the accident had been Monday, so this meant that he needed to take the rest of the week off work. 25The plaintiff's hand was still "killing" (T 47) him, but he managed to drive to and from the doctor, and then to drive home. He was told to return to the doctor later that week. The doctor sent him for an x-ray and as soon as the doctor had seen the x-ray, he telephoned Dr Myers and arranged for the plaintiff to see him immediately (T 48). The plaintiff then went to see Dr Myers at Prince of Wales Hospital who said that the hand "needed operating on straightaway" (T 49) and arranged for the operation to take place the following Tuesday. Dr Myers considered it so urgent who tried to get him in earlier, but he was unable to cancel any prior surgery (T 49). 26The plaintiff was suffering from what he called "shocking pain" (T 49) until the day of the surgery. He was unable to sleep or indeed to do anything. He could not drive his car, although on one occasion he did manage to drive back to Dr Myers because his wife was unavailable to drive him. He filled out a workers compensation form in order to advise Blue Collar that he had suffered an injury (T 50-51). He was admitted to hospital and underwent surgery. The plaintiff's surgery and medical condition are described in more detail in the section of this judgment concerning quantum. 27The plaintiff continued to receive worker's compensation payments. He underwent physiotherapy (T 54), took Mersyndol Forte (T 55), which cut the pain out "for a little while" (T 55), and remained at home. He was "no good" (T 56) emotionally at this time. He had nothing to do apart from looking for employment; his spent 12 months at the CRS trying to find employment. 28The plaintiff was anxious about money, as he had a wife to support. His wife was working, and an son just out of his teens also lived at home with them. The worker's compensation payments were less than his salary. On or about 20 September 2007, about five months after his accident, the plaintiff was caught by police carrying a substantial amount of drugs and money in his car. On 2 February 2009, the plaintiff was sentenced to imprisonment for two years commencing 20 September 2007. There is little information about the circumstances in which the crime was committed, save that when he was apprehended, there was $26,000 in his car, $11,000 of which he claimed to police was his, although he told the court in these proceedings that in fact he was only going to be paid $1,000 for delivering both this money and the substantial amount of drugs also found in his vehicle. I note, in relation to this sentence, that the plaintiff had a juvenile conviction, and in 1993 received a fine for possessing and self-administering a prohibited drug, but he was otherwise unknown to police. The circumstances in which he was arrested for this offence are of relevance in relation to his future economic loss and create problems for his claim for past domestic care. 29The plaintiff received some treatment while in jail, although this was limited, and this has impacted upon his condition, in that he was unable to obtain physiotherapy or take the medication he had taken before his incarceration (T 58). 30Following his release, the plaintiff endeavoured to obtain employment and completed the 12 months CRS course, but developed regional pain syndrome, which is discussed in more detail in the section of this judgment on quantum below.

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The evidence of the defendants 33The first defendant, during the plaintiff's evidence in chief, raised an objection to hearsay evidence from the plaintiff concerning statements made by its employees "Sonny" and "Parnell". I deferred ruling upon this until the evidence from the defendant was led. The defendant did not call either of these witnesses, or indeed any witness, and I was not asked to rule upon the exclusion of the plaintiff's evidence of what they said. No objection was taken pursuant to s 69 Civil Liability Act to the plaintiff's evidence of admissions by Sonny as to knowledge of the faulty trolley. 34In addition to calling no evidence from Sonny or Parnell (or any other employee), the first defendant failed to answer two subpoenae (9-10, 14-15, 70-74). The first of these was issued by the plaintiff on 9 July 2010 (Exhibit D1) and sought the following documentation: (1)All plans, sketches, diagrams, photographs, reports, service books, brochures, instruction manuals, publications and films in relation to the process the Applicant was engaged in at the time of the accident. (2)All plans, sketches, diagrams, photographs, reports, service books, brochures, instruction manuals, publications and films in relation to any machine the Applicant was working on or with at the time of the accident. (3)All instructions, memoranda, books, publications, notices, notes, reports, documents, films and correspondence relating in any way, wholly or partly, to safety aspects of the process the Applicant was engaged in at the time of the accident. (4)All memoranda, notes, reports, correspondence and other documents in relation to any visit by any representative of the Department of Industrial Relations and Technology in respect of the accident to the Applicant. (5)All memoranda, notes, reports, correspondence and other documents relating to any alterations, after the accident to the Applicant, of the manner in which the process in which the Applicant was engaged at the time of the accident operated or was carried out. (6)All memoranda, notes, reports, correspondence and other documents in relation to any prosecution by the Department of Industrial Relations and Technology in respect of either the accident to the Applicant or the manner in which the Applicant was engaged at the time of the accident operated or was carried out. (7)All memoranda, notes, reports, correspondence and other documents in relation to any other accidents occurring: (i)in a similar manner to that in which the Applicant was injured; and (ii)on the same work process as the Applicant was engaged upon at the time of the accident. (8)All reports of injury, claims for compensation, statements by the Applicant, statements by witnesses, other statements, investigative or other reports, films, plans, sketches, diagrams, photographs, accident report books, notes, memoranda, correspondence, medical certificates, medical reports and all other documents in relation to the Applicant's accident, disabilities and employment. (9)All memoranda, notes, reports, correspondence and other documents in relation to the Applicant's employment and any terminating of, or resignation by, the Applicant from that employment. (10)All copies and drafts of any of the documents referred to in paragraphs 1, 2 and 3 above. (11)All correspondence or copy correspondence between you and your workers compensation insurer or any other person or company in relation to the Applicant's accident, injuries, disabilities, employment or fitness for work. (12)Details of weekly earnings of the Applicant (including ordinary wages, overtime, bonuses, penalty rates and all other allowances and payments) and of all deductions. (13)Details of weekly earnings of three (3) employees engaged in similar wage terms, in similar categories and positions of employment, and undertaking similar duties to the Applicant (including ordinary wages, payments for overtime, bonuses, penalty rates and all other allowances and payments) and of all deductions. (14)Details of all absences from work of the including particulars of reasons, if any, ascribed therefrom by the Applicant, or any one on his behalf, and of all certificates or other documents relating thereof furnished by or on behalf of the Applicant or any one on his behalf. (15)All books, cards, files and other records of First Aid attendance upon and medical reports relating to the Applicant while in your employ. (16)Your entire personnel file in relation to the Applicant. (17)The register of injuries required to be kept under Section 90 of the Workers Compensation Act, 1987. 35This subpoena was served on Gate Gourmet Property Pty Ltd. That was in fact another company in the group, and not the defendant. However, the same solicitors acted for both companies, and responded to this subpoena, stating that no documents were produced. The documents sought included records the first defendant was required to keep, such as the register of injuries required to be kept under s 90 Workers Compensation Act 1987 (NSW) and the form signed both by the plaintiff and Sonny on the day of the accident. 36A second subpoena for these documents was issued on 17 January 2012. This time, it was addressed to the correct company, namely the first defendant. It sought the following documents: (1)All reports, records, files, documents, invoices etc; in relation to the repair, maintenance, replacement of trolleys at the defendants premises at 263 King Street, Mascot NSW 2020. (2)Any documents in relation to the system of repair and recording of any defects of the trolleys. (3)Staff roster for the date of the Plaintiff's accident and duties allocated to each member of staff and their job description. 37Apart from some pro forma signs for faulty trolleys, none of these documents were produced. 38A notice to produce was called upon during the trial (T 72). It was mentioned on a number of occasions. At the opening of Mr Kettle's closing submissions (T 177), he produced documents he said were provided in response to the call, but those documents were conceded to be of no relevance to the categories of documents sought by the plaintiff or to the issues in these proceedings. 39Mr Kettle said (T 178) that he was "not going to dwell on liability" but that he still made a substantive case on the evidence (T 178). 40The first defendant also tendered a report of Dr Nathan Kinkaid (Exhibit 1). Dr Kinkaid's report is, however, limited to the mechanics of the accident, namely the force needed to move a trolley, and differing scenarios of a trolley toppling with one locked wheel, one broken wheel, two locked wheels, locked wheels where it is pushed to the side, locked wheels being pushed directly to the left and misaligned force and the location of the overturned trolley. 41The second defendant called no oral evidence. 42The first and second defendant also tendered medical and other reports concerning the plaintiff's injuries which are discussed in more detail below. The second defendant called no oral evidence. 43I also note that the defendants relied upon evidence in the proceedings generally in support of the issues relevant to the cross-claim.

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The liability of the defendants 44The second defendant made concessions as to the non-delegable duty of care (T 200) and drew my attention to labour-hire cases such as Maricic v Dalma Formwork (Australia) Pty Ltd [2006] NSWCA 174 in relation to the liability of the first defendant. Mr Campbell, for the plaintiff, and Mr Robertson, for the second defendant, submitted that the first defendant owed a duty to the plaintiff analogous to that of an employer, which duty included the obligation to provide a safe system of work and safe plant and equipment in accordance with s 5B Civil Liability Act 2002 (NSW). In the course of discharge of that duty, a reasonable person in the position of the first defendant would have foreseen a risk of injury likely to result from the failure to maintain that equipment, given the necessity to use the trolleys for persons working at the premises, whose job it was to collect goods to fill orders by using these trolleys. A reasonable person would, for the purposes of s 5B(2), respond by implementing an appropriate system of detection of trolleys with problems and maintenance with respect to defects, visible problems and problems reported by staff. 45In relation to the failure of the first defendant to lead any evidence at all concerning any system of maintenance, inspection or the like, and where documents in relation to this were not produced under subpoena, counsel for the plaintiff submitted that the evidentiary burden was far lighter than in Strong v Woolworths Ltd [2012] HCA 5. He submitted that the total absence of evidence from the first defendant was significant. As the High Court in Hampton Court Ltd v Crooks (1957) 97 CLR 367 noted, information such as (in the present case) the poor state of maintenance of the trolleys is a fact peculiarly within the knowledge of the defendant, whose responsibility it was to maintain control of the premises. In such circumstances, "slight evidence may be enough", as Dixon CJ noted in Hampton Court Ltd v Crooks at 371: "[A] plaintiff is not relieved of the necessity of offering some evidence of negligence by the fact that the material circumstances are peculiarly within the knowledge of the defendant; all that it means is that slight evidence may be enough unless explained away by the defendant and that the evidence should be weighted according to the power of the party to produce it, in accordance with the often repeated observation of Lord Mansfield in Blatch v. Archer [1774] Eng R 2; (1774) 1 Cowp 63, at p 65 [1774] Eng R 2; (98 ER 969, at p 970) : cf. Parker v. Paton (1941) 41 SR (NSW) 237; 58 WN 189 ; Ex parte Ferguson; Re Alexander (1944) 45 SR (NSW) 64; 62 WN 15 . (at p372)" 46The absence of the first defendant's records for the accident is surprising. Section 90 Workers Compensation Act 1987 (NSW) requires the keeping of a register of injuries, and it should have been produced whether the plaintiff's name was there or not. No documents were produced relating to the plaintiff, or any injuries suffered by him, or any circumstances concerning his injury, yet the plaintiff, in unchallenged evidence (other than in relation to the hearsay component) stated that not only did he report that injury to the two men he named, but that when he went back to the office he saw one of those men filling out a form in a notebook, which was then signed. Counsel for the plaintiff invited me to infer that not only did the first defendant have a haphazard system for the recording of injury, but also for the carrying out of maintenance, and that the plaintiff's description of what was said, namely to just get on and use the equipment and stop complaining, was an accurate description of the lack of system of the first defendant. 47What inferences, if any, should be drawn from failure to produce documents in answer to subpoena or discovery? In LJP Investments Pty Ltd v Howard Chia Investments Pty Ltd (1989) 24 NSWLR 490 at 508, Hodgson JA stated that the court should adopt a "robust" approach to proof where the actions of a party "whose actions have made an accurate determination so problematic", citing Armory v Delamirie (1722) 1 Stra 505; 93 ER 664. 48Where the party who does not produce the documents is asserted to be a wrongdoer, the inference may be more readily drawn. In Houghton v Immer (No 155) Pty Ltd (1997) 44 NSWLR 46 at 59 Handley JA founded the "robust" assessment on the defendants' wrongdoing, as well as on their failure to keep records: "The defendants, having improved common property without lawful authority, and attempted to effect a fraud on the minority, are wrongdoers, and their failure to keep and produce proper accounts of their actual expenditure on the common property has made it difficult to assess the compensation due to the plaintiff: compare Armory v Delamirie (1722) 1 Stra 505; 93 ER 664. In my judgment the Court should assess the compensation in a robust manner, relying on the presumption against wrongdoers, the onus of proof, and resolving doubtful questions against the party "whose actions have made an accurate determination so problematic": see LJP Investments Pty Ltd v Howard Chia Investments Pty Ltd." 49These principles were restated in Tyco Australia Pty Ltd v Optus Networks Pty Ltd [2004] NSWCA 333 at [246] per Giles JA. The High Court, in Murphy v Overton Investments Pty Ltd (2004) 216 CLR 388 at [74], footnoted these decisions for the proposition that the trial judge "may think it proper to draw inferences in favour of [the plaintiffs] if it is concluded that the respondent's wrong itself made quantification difficult", as Giles JA noted in McCartney v Orica Investments Pty Ltd [2011] NSWCA 337 at [156]. 50It is not clear whether there is one rule for omission (failing to produce the documents without offering any explanation) and another for commission (admitting to having destroyed a document). In the above cases, the wrongdoings included fraud and failure to keep (and produce) proper accounts, which appear to blur the line between commission and omission. In all these cases, the compulsory process of discovery and interrogatories was also available, rather than the uncertainties of documents produced in answer to subpoenae, a significant feature of personal injury litigation, where discovery is not available and the party issuing the subpoena or notice to produce is dependent upon the honesty and competence of the party answering the call. 51McCartney was handed down shortly after the Court of Appeal's dismissal of an appeal in a case raising the same problem, namely Palavi v Radio 2UE Sydney Pty Ltd [2010] NSWDC 332, where a partial failure to comply with a request for further and better discovery (as opposed to total failure to produce documents) had more drastic results. These were defamation proceedings where discovery and interrogatories had already been used by both parties, who were about to go to trial. Shortly before the trial, the defendants sought additional discovery of the plaintiff's "mobile phone and/or Facebook and/or Myspace pages" (at [8]). The plaintiff produced Facebook and Myspace pages but only discovered one of the five mobile phones she had owned, and then only in Part 2 of the relevant list. One of the mobile phones clearly contained evidence relevant to the case (at [20]). The trial judge was satisfied that the plaintiff had deliberately disposed of two mobile phones for the purposes of evading her discovery obligations (at [67]), and struck out part of her claim. This decision was affirmed on appeal: Palavi v Radio 2UE Sydney Pty Ltd [2011] NSWCA 264. Another action brought by the same plaintiff was dismissed (as an abuse of process) in its entirety on this basis: Palavi v Queensland Newspapers Pty Ltd [2011] NSWSC 274. 52Another, although less extreme, step, is the stay of proceedings where a party refuses to cooperate in the production of relevant records: Merkuloff v Yalisheff [2003] NSWSC 1183. A stay was ordered in those proceedings even though discovery and interrogatories were (as Young CJ in Eq noted) also available as a means of compelling production. Such a remedy would have particular force in personal injury actions, where discovery is not available, but stays have rarely been sought, and generally only in the case of plaintiffs who withhold pension entitlement details: Attard v Hore [2002] QSC 437; El-Helou v Smith [2009] NSWSC 741. In El-Helou, Harrison J ordered a plaintiff to provide authority to a defendant in relation to Centrelink claims made both by herself and by her husband, on the basis that they were relevant to claims for economic loss and home care claims. Harrison J noted specific references to s 56 Civil Procedure Act 2005 (NSW) by Gzell J in Wray v Wray [2007] NSWSC 164 (at [12]) and by the New South Wales Court of Appeal in Hans Pet Constructions Pty Ltd v Cassar [2009] NSWCA 230 at [36]. In particular, her Honour noted the statement of Young CJ in Eq in Merkuloff v Yalisheff at [17]: "[17] When a person does bring proceedings in this Court, he or she is under an obligation to assist the court in coming to a fair conclusion. If a person deliberately says to their opponent and to the court "I will not co-operate" then the usual consequence is that their action is stayed until they do co-operate." 53This suggests that plaintiffs, rather than defendants, are most at risk from such orders, which may have been a factor in Palavi. However, the more significant difference ought to be that in all these non-personal injury cases, both plaintiff and defendant had other remedies for failure by an opponent to produce documents, including, as Young CJ in Eq noted in Merkuloff v Yalisheff, discovery and interrogatories. In none of these cases was there total failure to provide documents by a defendant who was a large corporate entity with statutory record keeping obligations, as is the case here. 54In the present circumstances, there has been failure to answer a subpoena on at least one occasion before the trial, and to provide the relevant documents pursuant to a notice to produce during the trial, even though the solicitors for the first defendant were aware (in that they responded in relation to the first subpoena to the wrongly named company) that these documents had long been sought, and were relevant to the claim. Those documents, if obtained, could have enabled the plaintiff to: (a)Identify who "Sonny" and "Parnell" were, so that they could be interviewed and, if necessary, called to give evidence; (b)Assist the experts in the case to analyse the mechanics of the collapse of the trolley; (c)Provide information about the system of maintenance of the trolleys, any prior complaints or injuries and any steps taken following the plaintiff's accident. 55These documents may also have been significant to the issue of causation. In considering the provisions of s 5D, the High Court in Strong v Woolworths Ltd stated at [20]: "Under the statute, factual causation requires proof that the defendant's negligence was a necessary condition of the occurrence of the particular harm. A necessary condition is a condition that must be present for the occurrence of the harm. However, there may be more than one set of conditions necessary for the occurrence of particular harm and it follows that a defendant's negligent act or omission which is necessary to complete a set of conditions that are jointly sufficient to account for the occurrence of the harm will meet the test of factual causation within s 5D(1)(a). In such a case, the defendant's conduct may be described as contributing to the occurrence of the harm. This is pertinent to the appellant's attack on the Court of Appeal's reasons, which is directed to par 48 of the judgment: "Now, apart from the 'exceptional case' that section 5D(2) recognises, section 5D(1) sets out what must be established to conclude that negligence caused particular harm. That emerges from the words 'comprises the following elements' in the chapeau to section 5D(1). 'Material contribution', and notions of increase in risk, have no role to play in section 5D(1). It well may be that many actions or omissions that the common law would have recognised as making a material contribution to the harm that a plaintiff suffered will fall within section 5D(1), but that does not alter the fact that the concepts of material contribution and increase in risk have no role to play in deciding whether section 5D(1) is satisfied in any particular case." (emphasis in original)" 56The court further noted at [32]: "The appellant was required to prove on the balance of probabilities that Woolworths' negligence was a necessary condition of her harm. Woolworths' negligence lay in its failure to employ a system for the periodic inspection and cleaning of the sidewalk sales area. Proof of the causal link between an omission and an occurrence requires consideration of the probable course of events had the omission not occurred. Here, the appellant was required to prove that, had a system of periodic inspection and cleaning of the sidewalk sales area been employed on the day of her fall, it is likely that the chip would have been detected and removed before she approached the entrance to Big W." 57In the present case, the failure to produce documents, which includes the failure to produce records required by statute to be kept, is a total failure. It remains to be seen whether the principles discussed in Palavi v Radio 2UE Sydney Pty Ltd will be applied beyond the facts of that particular case. Since Palavi was not even cited in McCartney, this seems unlikely. Plaintiffs in personal injury litigation will have to content themselves with reliance upon Dixon CJ's observations in Hampton Court Ltd v Crooks. On that basis, having regard to the facts in this case, the plaintiff has no difficulty in establishing liability. 58I am satisfied that the plaintiff has established that the accident occurred in the manner described, and that the accident occurred because of defective equipment, an unsafe system of work requiring faulty equipment to be used, and an unsafe and unsatisfactory system of failure to repair faculty equipment. 59This brings me to the questions of contributory negligence, quantum, and to the apportionment of liability between the defendants.

[12]

Dr Stuart Myers 63As the plaintiff's treating doctor, Dr Myers is best placed to comment on the plaintiff's injuries. In his report of 15 May 2007, he states: "I agree he has some signs of a very mild complex regional pain syndrome effecting his left hand.In particular he has palmar fascial thickening. Purplish discolouration in the hand. Swelling. Significant stiffness and mild pain.He needs to aggressively increase his activity level. I will check him in two weeks time to see whether he requires formal review in a pain management setting but I doubt this will be the case. He remains unfit for work at this time.X-rays today reveal anatomical alignment of the fracture which has now united." (Report of 15 May 2007, Exhibit A) 64Dr Myers expended on this report two weeks later as follows: "I reviewed Harry KEMBLE on 28 May.He has a much more obvious complex regional pain syndrome affecting his left hand. He has burning pain over the dorsum of the index MCP joint and a cold sensation in the hand. He has diffusely altered sensation in the hand and significant colour change today. There is marked stiffness of all the fingers, but particularly the index finger.Harry's progress has been extremely slow. I think the time has come to organise formal pain management and I will ask him to see a Dr Khor in the Pain Clinic at Prince of Wales as soon as possible. I have reassured him that by using his hand he is not doing any damage. The fracture has united. I explained to him that the complex regional pain syndrome will triple or quadruple the time it takes to recover from his injury. He needs to continue with hand therapy and may need prolonged hand therapy." (Report of 28 May 2007, Exhibit A) 65Dr Myers repeated in a report of 25 June 2007 that the plaintiff was "frustrated" and "significantly distressed" by the ongoing dysfunction on his left hand, which was "obvious", and added in a further report of 6 August 2007 that his position had not changed. 66After the plaintiff's release from jail, Dr Myers provided a report dated 14 July 2010 in which he stated as follows: "Mr Kemble has ongoing signs of a complex regional pain syndrome in his left hand. He desperately needs to return to some form of employment as soon as possible.I wonder about his suitability for doing a counselling course. He is presently only taking 6 Mersyndol Forte a day. I wonder whether there is still a role for some Gabapentin but will leave this up to the Pain Clinic." (Report of 14 July 2010, Exhibit A) 67There are reports from the Hand Injury Trauma Service - Physiotherapy (Exhibit A, pages 22-27). It is clear that the plaintiff is continuing to suffer as late as July 2010 from high levels of pain in his hand and swelling with activity. He was able to manage up to three kilograms with his left hand and could manage up to six kilograms in a two-handed lift. He was undergoing hand-strengthening exercises (Exhibit A, page 27). 68Dr Myers and the Hand Injury Trauma Service confirmed the degree of severity of the plaintiff's injury.

[13]

Dr Robert Adler 69Dr Adler provided two medico-legal reports dated 15 November 2009 and 25 June 2010. His opinion is as follows: "DiagnosisMr Kemble has undergone left index finger internal fixation of a proximal phalanx fracture, with articular extension at the base. This was internally fixated surgically. This was complicated by Complex Regional Pain Syndrome type 1, resulting in hand swelling, severe pain and intolerance of even light touch. The hand remains stiffened, with inability to use the all important pinch grip between thumb and index finger, as the index finger is too sensitive to tolerate opposition with the thumb. The hand is clumsy and poorly functional." (Report of 15 November 2009, Exhibit A) 70Dr Adler adds that this condition unfortunately often has a poor prognosis, resulting in permanent stiffening of the fingers and hand and long-term pain disorder, as well as later potential arthritis problems. He notes the problem caused by the plaintiff not having been able to obtain pain specialist therapy while he was in jail. In an updated report of 15 November, he notes that the condition has still not stablised. 71In his 25 June 2010 report, Dr Adler noted that the plaintiff continued to have the same symptoms of left hand pain that were unchanged. The index finger remained very sensitive and had difficulty tolerating any pressure. He suffered from excessive hand sweating, hot and cold discolouration, intermittent pins and needles and aching which was "particularly distressing at times". He had difficulty using his hand grasp objects and it remained clumsy. The condition remained similar to that observed in October 2009. 72He goes on to add: "The Complex Regional Pain Syndrome should remain under the care of a Pain Specialist. He has trialled a number of treatments which have unfortunately not been successful. There is a limited role for physiotherapy treatment. Psychological counselling will be required, at times, to assist Mr Kemble in adjusting to this severe hand disability. He would require six hours a week domestic assistance and two hours a fortnight home maintenance assistance." (Report of 25 June 2010, Exhibit A) 73Dr Alder has provided a short additional report setting out the eight criteria for Complex Regional Pain Syndrome to be diagnosed, noting that seven criteria were met so Complex Regional Pain Syndrome was not fulfilled as eight criteria are needed (Exhibit A, pages 83-84). 74Dr Adler has confirmed the ongoing nature and poor prognosis for the plaintiff's condition. He has made additional comments about need for assistance in home duties, which are the subject of additional comment in the section of this judgment relating to past and future domestic care.

[14]

Dr Henry Lam 75Dr Lam is pain medicine specialist. He has provided a report dated 25 March 2010 and a follow up report dated 7 May 2010. He describes the plaintiff's chronic persistent pain condition as follows: "The pain is described as a constant pain with paroxysmal attacks as well as increase in intensity associated with activity. The characteristics of the pain are described as dull, aching, sharp, stabbing, hot, burning, throbbing, pulsing, paraesthesia and numbness. He describes allodynia, hyperalgesia and dysaesthesia. Mr Kemble reports his hand being hot and cold at times, sweaty and clammy. Pain radiates from the hand up the arm.Pain seems to be better with medication, getting up, moving and trying to take his mind off things, hot water [sic]. Pain seems to be exacerbated by using her [sic] hand, sneezing, using knife and fork." (Exhibit A, page 86) 76Dr Lam, whose report was prepared for the assistance of Employers Mutual, the worker's compensation insurer, makes a series of recommendations for treatment of the plaintiff. 77Dr Lam's follow up report describes the plaintiff as presenting in a state of considerable distress as his stepfather had just committed suicide. He said his pain had flared up and Dr Lam noted with concern that the plaintiff had still not received approval from WorkCover in relation to the Multidisciplinary Pain Management Plan. He noted that as Mr Kemble's Orebro Musculoskeletal Pain Questionnaire score was 132, he was at risk of developing a long term problem, as any score greater than 105 was indicative of this problem and one study had found that workers with a score higher than 130 failed to return to work (Exhibit A, page 91). 78In a subsequent report of 9 July 2010, Dr Lam noted with concern that the plaintiff had still not received approval to commence the Multidisciplinary Pain Management Plan, noting that it was important to consolidate the gains achieved by having him undergo this plan. The plaintiff was eventually given permission to commence the course on 7 February 2011. It was a course of 8 weeks. Dr Lam commented also commented on the importance of the plaintiff using his hand, in order to ensure his condition did not worsen. 79Dr Lam's reports substantially corroborate the opinion of the plaintiff's treating specialist, Dr Myers.

[17]

Dr Neill McGill 83Dr Neil McGill, a rheumatologist, provided reports dated 13 October 2010 and 26 July 2011. Dr McGill confirms that the plaintiff did experience Complex Regional Pain Syndrome in the months following his injury but considers that, while he has some restriction of left index finger movement, he has largely recovered. He describes a lack of objective change (Exhibit 1, page 24), which he considers is suggestive of the plaintiff using his left hand in a regular fashion. He considers that the plaintiff can use his left hand normally without fear. 84In a further report of 26 July 2011, Dr McGill had the following to say: "I refer to my report on Mr Kemble dated 13 October 2010. When I saw him he reported that he was using Mersyndol Forte about 6 daily and that he had been using a patch on the dorsum of his left hand although he was not wearing any patch when I saw him. He provided a history consistent with complex regional pain syndrome in the left hand following the avulsion fracture of the base of the left index proximal phalanx on 2 April 2007. The letters by Dr Myers supported the conclusion that Mr Kemble had suffered complex regional pain syndrome. When I saw him however there was no objective evidence of complex regional pain syndrome. Specifically there was no wasting, temperature alteration, sweating alteration, skin or hair change, nail change or x-ray [sic] evidence of osteoporosis. Thus I concluded that his complex regional pain syndrome had recovered. He demonstrated restricted flexion of the left index finger but that was the only abnormality.With respect to the claims that have been made on his behalf in regard to future medical expenses, the use of 28 Panadol tablets per week would represent reasonable simple analgesia if he felt the need.42 Nurofen (Ibuprofen 200mg) tablets per week I think would not be appropriate although that represents relatively low dose anti-inflammatory medication. Mr Kemble has hypertension (which anti-inflammatory mediation often aggravates) and the evidence does not suggest that he would expect to require that therapy. He was not using anti-inflammatory medication, based on the history he provided to me.I do not think there is indication for any of the other expenses listed in your letter in relation to his left hand. Thus he does not require four consultations per year with a general practitioner; twelve pain specialist consultations per year for two years; Stellate ganglion blocks; or physiotherapy treatments.He could benefit from assistance regaining employment from a case manager or similar person.With respect to whether he requires consultations with a psychologist, I did not detect anything that indicated such a need. I will leave it to those with expertise in psychological problems to comment further on that suggestion.With respect to his work capacity, he may have some difficulty performing actions that require fine movements with the left index finger. I think he would be fit to work as a machine operator, operate a fork lift, load and unload goods, perform storeman duties, traffic control and work as a baggage handler. Thus he is currently fit for types of work that he reported he had performed in the past." (Report of 26 July 2011, Exhibit 1)

[18]

Dr Con Kafataris 85Dr Kafataris provided reports (Exhibit 2) dated 16 November 2010, 6 December 2010 and 25 October 2011. These reports were provided to WorkCover. 86In his first report, Dr Kafataris notes the plaintiff's rehabilitation of the period of incarceration for drug related offences. He noted what he called a "mild yet definite difference in colour for the left hand", that it was visibly sweatier, swollen and shiny and generally indicated as diagnosis of Complex Region Pain Syndrome type 1. Range of motion for the thumb and second to fifth fingers was relatively well preserved. There was a difference of grip strength between the left and right hand in that the left hand could only grip seven kilograms whereas the right hand could grip 28 kilograms. 87Dr Kafataris comments: "This worker's presentation is consistent with complex regional pain syndrome of the left hand. Whilst this is a condition that is over-diagnosed in my opinion in the workers compensation arena, there is consistency in this worker between the history and the physical findings. Essentially this condition is a long term problem characterised by persistent and recurrent pain often associated with abnormal autonomic phenomena such as colour changes, sweating, etc. The mainstay of treatment is functional restoration i.e. to improve functional capacity whilst assisting the worker to manage pain using CBT principles.A return to pre-injury duties is not the usual outcome for this condition." (Report of 16 November 2010, page 3, Exhibit 2) 88Dr Kafataris concludes his report of 16 November 2010 by stating that these restrictions are likely to be long term and that it is unlikely that the plaintiff could return to his pre-injury duties. The work goal should be permanently modified duties. 89In his report of 6 December 2010, Dr Kafataris considered four potential forms of employment, noting that traffic control duties would be appropriate. 90Dr Kafataris' report of 25 October 2011 is a report in reply to the report of Dr Lam, together with the updated opinion that the plaintiff's condition is "largely unchanged" (page 3). He does, however, consider that the plaintiff is capable of working full time hours and he notes that he is attempting home duties such as trying to vacuum, wash and "clean up".

[20]

Conclusions concerning non-economic loss 92The first defendant submits that the evidence concerning the plaintiff's treatment is in conflict in that Dr McGill in his report of 13 October 2010 says that the plaintiff no longer has any objective symptoms, and that I should accept the latter. 93I do not accept this submission. While the medico-legal reports appear to take differing views as to the extent of the plaintiff's condition, the reports of the plaintiff's treating surgeon, Dr Myers, are quite unambiguous. Dr Myers was still observing purplish discolouration, palmar fascial thickening, limited index finger range of motion and pain, which he considered to be ongoing signs of a Complex Regional Pain Syndrome, as late as 14 July 2010. This is only three months before he saw Dr McGill. His condition is unlikely to have vanished overnight and I do not see how Dr McGill could have failed to observe this or, if the hand appears normal, why he did not explain how his observations were so different to those observed by the other medical practitioners. 94Reports of treating doctors have the advantage of being prepared by the doctor who has case managed and treated the injury concerned over a long period. Dr McGill saw the plaintiff only briefly, for the purpose of a medico-legal report. 95I prefer the carefully explained series of reports of Dr Myers to the opinion of Dr McGill and I am satisfied the plaintiff's hand problems are both ongoing and significant. 96This brings me to the issue of what is an appropriate range for damages for non-economic loss for an injury to the plaintiff's non-dominant hand. In Clarence Valley Council v MacPherson (District Court of New South Wales, Flannery DCJ, 16 March 2011), the trial judge described an injury to the plaintiff's dominant right hand as "catastrophic", and assessed his non-economic loss at 30%, rejecting a submission by the plaintiff for 35%. The Court of Appeal (Clarence Valley Council v MacPherson [2011] NSWCA 422 at [82]) found that although the plaintiff had suffered a serious injury to his right wrist, he was "generally pain free unless he lifts a heavy object or jars his wrist or otherwise subjects it to some form of trauma" (at [82]). The Court considered the appropriate percentage was 25%. Accordingly, non-economic loss for the respondent was reduced to $33,800, representing 25%. In doing so, the Court also acknowledged the plaintiff suffered depression and a reduction in his ability to interact with his children, as well as difficulty to return to sports and to perform some tasks around the home. 97The plaintiff's evidence is that he is still in pain and, as noted by Dr Myers, that he continued to suffer Complex Regional Pain. It is a condition for which the prognosis is poor. While the injury is not to the plaintiff's dominant right hand, the result is that he continues to be in pain and to take medication for this pain, as well as suffering from significant problems such as depression and mood swings. As Associated Professor Champion notes in his long and insightful report, these additional problems also include his becoming reliant upon Mersyndol Forte. In addition (and I note no objection was taken to this evidence), the plaintiff has gained approximately 15 kilograms, which has resulted in hypertension and a potential for type 2 diabetes, for which he is at high risk, as his mother suffered from that condition. This in turn places him at cardiovascular risk. These features appear not to have been present in Clarence Valley Council v MacPherson. 98I note reliance by the first defendant on comments about non-economic loss in Owners - Strata Plan 156 v Gray [2004] NSWCA 304, in relation to an ankle injury. This case is also referred to in Clarence Valley Council v MacPherson but, as their Honours point out at [73]-[74], this was an injury to which the plaintiff had significantly adjusted, in that she only had a short time off work. 99Taking all of the above into account, the more realistic assessment of non-economic loss is that proposed by the second defendant, who puts non-economic loss at 25%. Accordingly an allowance of $33,800 for non-economic loss is made.

[24]

Past and future economic loss, past and future loss of superannuation and Fox v Wood 104Past and future economic loss, past and future loss of superannuation and Fox v Wood are claimed as follows: Past Economic Loss (a) 2/4/2007 to 30/6/2007(12 wks) [CPI - 3.8%] $439.53 npw $5,274.36 ($439.53 npw) (b) 1/7/2007 to 20/9/2007 (10.85 wks) - [CPI - 1.7%] $447.00 npw $4,849.95 ($447.00 npw) (c) 1/7/2008 to 30/6/2009 (52 wks) [CPI - 4.3%] - - (d) 19/9/2009 to 30/6/2010 (41.34 wks) [CPI - 1.3%] $466.22 npw $19,273.53 ($466.22 npw) (e) 1/7/2010 to 30/6/2011 (52 wks) [CPI - 2.9%] $479.74 npw $24,946.48 ($479.74 npw) (f) 1/7/2011 to 5/3/2012 (35 wks) [CPI - 3.8%] $497.97 npw $17,428.95 ($497.97 npw) Total $71,773.27 Past Loss of Superannuation 11% x $71,773.27 $7,895.06 Future Economic Loss $500.00 npw less 1/3 = $350.00 x 18.5 years (to 67 years) = 635 x $350.00 (5% multiplier for 18.5 years - working life expectancy of plaintiff) = $222,750.00 less 15% vicissitudes $188,912.00 Future Loss of Superannuation 11% x $188,912.00 $20,780.00 Fox v Wood $4,898.00

[27]

Future economic loss 109Since his injury, the plaintiff has acquired a criminal record. The offence was a serious one. In addition, he has probation requirements and he has made admissions about drug use. I have heard his explanation, which is that he claimed to be a drug user whilst in prison in order to avoid being assaulted and that by claiming he was a drug addict, this is a factor in getting into a better jail: "Q. Are you telling the Court that you were telling lies because you wanted to get to the best possible place in the A. I wanted to get stronger. I tried to get down to welfare, because they were going to fax some sheets off to Stuart Myers and if they verified that I wasn't messing, I thought they were going to give them to me. Well then I went down there to fill the forms in because it takes about - once you've filled a form in it takes about six weeks for them to come back and see you. So I was in that much pain, I was just lying because I had to go and see first aid down there because I was just in too much pain sometimes. KETTLE Q. So for the purposes of the presentencing report with Daniel Llewellyn, you were lying, were you? A. I don't remember, sir. As I just said to you, I don't remember it. Q. The history that's recorded of your drug use by Daniel Llewellyn, is that you commenced cannabis on occasional basis at age 18 to 19 years of age with peers. Is that right or wrong? A. That part is true, sir. That's true. Q. And that you progressed to daily use in 1993, citing precipitation as a result of your brother's death. Is that right? A. Because of the charge I was on. I just told you that before, sir. I was saying that because of the charge I was on. Q. Sorry, you were? A. I was saying that because of the charges I was on. That's what they said to me, "If you say you're not a user in gaol and you're caught with drugs, well, they'll smash you," and I wasn't a user in gaol. I never took stuff in gaol, never, ever. I don't take drugs. I used to take - smoke a bit of pot and that's it. Q. The history goes on to say that you had a daily use of $20 per day and then you reported that you commenced speed five years ago, as in from 2003. A. Sir, I don't know what I was saying to them - truthful with you, I don't. Q. So is this history right or wrong, though? A. I'd say it'd be right - be right but I just don't remember doing it, that's what I'm saying to you. I filled out - to be truthful with you, about 34 forms in to get down to - to get down to the hospital. Q. After you commenced speed five years prior, you were taking speed on a daily basis by tablet form, spending up to $300 per week. Is that right? A. No, sir. That's not right. I've never taken speed in my life. Q. Well, you told Daniel Llewellyn that you'd taken A. I just told you why I done it, sir. I just told you, to get to the hospital. Q. You also told Daniel Llewellyn that you would gamble when under the influence of speed to get a quick quid to support your extended family and your drugusing habits. Is that right? A. Probably, if it says it there. Q. Sorry? A. Probably, if it says it there. Q. That's probably right, is it? A. Probably right, sir. I don't remember doing it. I'm just saying I don't remember doing it. I don't Q. You can't remember doing what? A. See that report. That one there you've got in your hand. Q. I'm asking you whether prior to your incarceration and being caught, you had a habit of using speed which required you to spend up to $300 a week. A. I was just saying that. I just told you sir, I was just saying that. I told you why I said it because I'd never been in gaol in my life. They were telling me, "Tell them you're on drugs because if you don't they will smash you, the force will smash you." They take it as financial gain, that's why I said it. Q. So who told you this, your coaccused? Is that right? A. Yes, because I'd never been in gaol in my life. I've never done gaol in my life. I didn't know what to do, what to say, where to go, I didn't know who to ask for help. I was on me own. I didn't know what to do. I was just saying what they were telling me to say and I was saying it. Q. You also told Daniel Llewellyn that - you stated that, "The drugs and money were not yours. However, you -" and then this is in quotation marks - "'participated in the scene' to earn some money to support your extended family and drug use." A. I was desperate for money. I told you that, yes." (T 108-110) 110Counsel were unable to provide me with assistance concerning the correct approach to take in relation to future economic loss where the plaintiff had committed a serious crime which had impacted upon his future earning capacity. That is not a criticism, but an indication of the lack of authority on this issue.There has, however, been some discussion of the question of failure to mitigate by the NSW Court of Appeal in relation to two motor accident cases. In Mahony v Watson [2003] NSWCA 259, the plaintiff was able to keep working following the accident but left his employer for unrelated reasons and made no attempt to obtain other employment. In addition, he was convicted of his fourth (mid-range) drink driving offence and lost his licence for a considerable period, which the defendant's rehabilitation expert claimed made it difficult for the plaintiff to obtain work as a painter. The Court of Appeal noted there was an earlier case where failure to mitigate had been found where there was refusal to seek work (Brogan v McGeary (1995) Aust Torts Reps 81-342), but held (at [54]) that a further drink-driving offence and refusal to seek work did not amount to failure to mitigate, and that that no reduction for mitigation should be made. In Arnott v Choy (2010) 56 MVR 390, the Court of Appeal (referring at [160] to Mahony v Watson), stated that it was possible to take into account the steps reasonably available to the injured person to find employment, taking into account his or her physical and emotional disabilities following the accident, although on the facts of the case (the plaintiff suffered serious head injuries) failure to mitigate was not made out. (The reference to Mahony v Watson at [160] is surprising, as it would appear to stand for the opposing view.) Both these decisions relate to the statutory provisions which applied to motor vehicle accidents, and are therefore of limited relevance. In the absence of clear indication from the Court of Appeal that matters such as committing a serious crime such as supplying drugs (for example, that a drug supply conviction might make it difficult to obtain work in places such as airports), I propose to deal with the impact of the plaintiff's criminal record on his future earning capacity with very great caution. 111The plaintiff has a long work history. However, that includes regular and long periods of unemployment, a history of casual employment, and, in relation to the four years prior to the accident, all of the above. 112However, the plaintiff intends to work, and has clear plans for return to the work force as a counsellor, following some further studies. He should be able to obtain full time employment of this kind. I also note other occupations referred to in the rehabilitation report, such as traffic management, in which the plaintiff has previous experience. The plaintiff's hand injury will not prevent him working in jobs of this kind, as this report points out. 113It is appropriate in the circumstances that a cushion should be awarded. The cushion of $50,000 proposed by the first defendant is too small. It the course of submissions, there was discussion of a cushion of $75,000. I consider this is a more appropriate amount and this is what I intend to order.

[28]

Past and future home care 114Prior to the plaintiff's injury, his wife would do the chores during the day, and he would help in the afternoon when he arrived home from work (T 65). His wife made the beds, did the washing and generally ran the house, but the plaintiff would do the cooking and cleaning as well as gardening tasks such as mowing (T 66). The car was washed at the car wash. The plaintiff thought he spent around 20 hours a week helping his wife, but the key concept is that he was helping his wife, and that she was primarily responsible, even though he considered he helped her "heaps" (T 67). 115The plaintiff was heavily dependant on his wife during the period following the accident. He could not drive, and his pain levels meant that he could not use his hand at all for much of the period between the time of the accident and 20 September, the date he entered prison. During this initial period of 22 weeks the plaintiff clearly needed significant help. 116The circumstances in which the plaintiff was incarcerated between 20 September 2007 and 19 September 2009 represents a real problem when determining past home care. The plaintiff's submissions put that 2 hours a day, 7 days a week for 150 weeks is appropriate. This is to cover the 22 weeks before imprisonment, plus the 128 weeks since his release. This is, however, an artificially constructed figure designed to deal with the problem that the plaintiff did not require home care for two years. 117After the plaintiff's release, he had difficulty performing tasks around the home. Dr Adler notes (15 November 2009) that the plaintiff had trouble holding or handling tools, crockery (such as a cup or glass) and other items he had previously used his right hand for, and was tending to do household chores one-armed. He was, however, able to do up his shoelaces, dress and shower himself, and perform some tasks around the home, such as vacuuming. 118Dr Adler recommends that the plaintiff receive 6 hours a week domestic assistance. He assessed general maintenance, gardening, car washing and other home repair work at 2 hours a fortnight ($35 per hour, which he says adds up to $1,250 per annum, although I note that this would in fact add up to $1,820) plus domestic assistance for household cleaning, laundry, vacuuming, tidying such as making beds and dusting (such as corners of ceilings) at 6 hours a week ($35 per hour, which is $10,920 per annum). 119According to the plaintiff he can now cut up meals. He copes with shoelace problems by wearing slip-on shoes (T 68). He helps around the house and tries to tidy up and vacuum. 120The problem is that his wife has a congenital illness which has developed fairly recently. She is now no longer working and has restrictions on her physical activities. Their daughter and husband now do the mowing. There is no documentary evidence of payment for past mowing, but I do not regard this as a significant problem. Building repairs are largely a matter for the landlord but the plaintiff and his wife have to keep the gutters and fences in good order. 121The first defendant submits that neither the plaintiff nor his wife have given evidence capable of raising the provision of gratuitous attendant care services relating to the injury, either past or future, to the thresholds envisaged by s 15 of the Act. The evidence does not support findings capable of meeting the threshold. 122First of all, there is no evidence of voluntary care for 6 hours a week for a period of at least 6 consecutive months for the period up to 19 September 2009, by reason of the plaintiff entering prison 22 weeks after the accident, for a period of two years, where he had no home care at all. During this 22 week period, according to Ms Hammond's report, he had about 3.5 hours of help from his wife for about 8 weeks (page 61 of Exhibit 1). 123Secondly, for the period after his release, the evidence of the plaintiff is in conflict with Dr Adler, in that he said he does make beds (T 154), help set the table and with the washing up (T 155), vacuum and do other light housework. The report of Deborah Hammond (at pp. 13 - 14) helpfully sets this out and it is clear that while he is doing less, it does not amount to needing six hours a week of help for more than six months. I appreciate that the plaintiff and his wife gave estimates to the contrary, but these were of a very general nature and tended to fade away when specific times were sought. 124As to commercial care, in relation to both past and future care, I note that the test in Miller v Galderisi [2009] NSWCA 353 at [18] and [24] has not been met. 125The claim for future care (7 hours a week at $35 per hour plus lawn mowing at $16 per week = $233,229.60) suffers from the same problems. No evidence was given of an likelihood of engaging commercial assistance after gratuitous services ceased. The lawn mowing now appears to be done by other family members. The plaintiff is in fact encouraged to "aggressively" (Dr Myers, 15 May 2007) increase the use of his hand, and the plaintiff continues to do hand strengthening exercises. 126Deborah Hammond's report for future nursing states: "Mr Kemble is currently not performing gardening, lawn mowing, car washing or home maintenance activities. However, as noted above, Dr McGill (13/10/10) noted "The advice provided by Dr Myers that he can use his hand normally without fear of doing harm is appropriate". In light of this advice, Mr Kemble's appearance at assessment, and the fact that it is his non-dominant hand, it is the consultant's opinion that Mr Kemble should be encouraged to undertake the majority of these activities. The consultant considers it reasonable for Mr Kemble to continue to avoid ladder climbing due to the requirement to maintain 3 points of contact for safety, until after the completion of his pain management program. As such, an allowance of 16 hours for assistance with ladder climbing spring cleaning activities, once off, is considered reasonable." (page 16) 127The plaintiff is able to drive (although he drives an automatic car) and does not require any adaptive equipment. 128Finally, I note Dr Katafaris, in his report of 25 October 2011 notes that the plaintiff was trying to vacuum, wash and clean up and that the plaintiff had been advised by Dr Lam that if he did not use his hand it would worsen. Dr Myers, his treating surgeon, has not provided any report supporting a need for home assistance. Conclusions concerning past and future home assistance 129 Although the plaintiff suffered a significant injury to his hand, in circumstances approaching the threshold of six hours a week, he was arrested and imprisoned before he received assistance for six months. He remained in gaol for two years. When he came out of gaol, he was able to look after himself sufficiently well to be able to perform many of the tasks he could perform before his injury. 130As to the future, there is evidence, although unsupported by documentary proof, that the plaintiff has had to pay for lawn mowing. The defendants put before me two competing sums for future commercial care, if I accept that the plaintiff needs assistance with mowing, on the basis that he has paid for this in the past. The sums proposed are $10,554 (16 hours per annum ($38.50 per hour) or $616 per annum or $12 per week for life (879.5) and $8,235.34 ($35 per hour, one hour each 3 weeks ($11.70) deferred for 5 years). There is very little difference between these sums so I propose to accept the slightly higher figure of $10,554. 131Accordingly, past home care is nil, and future commercial care is $10,554. Summary of damages 132The plaintiff's damages are as follows: Non-economic loss $33,800.00 Past out of pockets (agreed) $48,830.70 Future out of pockets $41,702.90 Past economic loss $71,773.27 Past superannuation $7,895.06 Fox v Wood $4,898.00 Future economic loss (cushion, includes superannuation) $75,000.00 Past home care NIL Future commercial care $10,554.00 Total $294,453.93

[30]

Apportionment between the defendants 134Cross-claims have been filed in these proceedings as follows: (a)Gate Gourmet, by way of cross-claim filed in court on 7 March 2012, brings a claim pursuant to s 5 Law Reform (Miscellaneous Provisions) Act 1946 (NSW), and further states that the duty owed by Blue Collar was non-delegable; (b)Blue Collar, by cross-claim filed in court on 7 March 2012, pleads reliance upon s 5. 135The defence filed by Blue Collar on 19 August 2011 admits (in paragraph 2) that it conducted the business of labour-hire involving the provision of the plaintiff to Gate Gourmet and (paragraph 4) that Gate Gourmet had agreed with Blue Collar for the plaintiff to perform duties as a storeman/forklift driver under the direction of and control of Gate Gourmet at Gate Gourmet's premises in Mascot. 136Gate Gourmet's plea is that if (which is denied) the plaintiff is awarded damages, such damages should be reduced by application of s 151Z(2) Workers Compensation Act 1987 (NSW) to reflect Gate Gourmet's reduced entitlement to contribution from the employer (paragraph 8). 137The principles of operation of s 151Z(2) require the court to reduce the amount payable to the plaintiff in relation to the percentage payable in relation to the liability of the employer as follows. In other words, the damages are reduced by the amount which is the difference between the amount the court finds would have been recoverable from the employer (pursuant to s 5) if the whole of the verdict is calculated in accordance with the principles applicable to assessment of damages for Gate Gourmet (pursuant to the Civil Liability Act 2002 (NSW)) and the amount which would be recovered if the verdict was calculated in accordance with the provisions of Division 3 of the Workers Compensation Act 1987 (NSW). The question is the degree to which, if Gate Gourmet is found to be negligent, what should be the percentage representing the relative culpability and causative potency of Blue Collar, as opposed to Gate Gourmet. This involves a consideration of the particulars of negligence set out in the amended statement of claim. 138The principles are helpfully set out by the New South Wales Court of Appeal in TNT Australia Pty Ltd v Christie (2003) 65 NSWLR 1. While the factual issues vary from case to case (in TNT Australia Pty Ltd v Christie the relevant issues are set out at [13]), but the approach remains the same. This is particularly the case where the plaintiff's injury has occurred in the increasing common situation of a manpower labour supply of its workers to another employer. In TNT Australia Pty Ltd v Christie, the trial judge assessed proportionate responsibility at 50/50% 139The first defendant submits that, if Gate Gourmet is found negligent, then the relative culpability and causative potency of Blue Collar's actions, as the employer of the plaintiff, was in the order of 30%. 140The particulars of negligence in relation to the second defendant include failing to exercise care by undertaking an inspection of the workplace, particularly with regard to the safety or suitability of the workplace, and failing to review the premises including the cool room area with respect to the suitability of areas such as the cool room area. The failure to inspect the plant and equipment, and to ensure the plaintiff was provided with any or adequate assistance is also relied upon (see particulars (a)-(i) set out in paragraph 5 of this judgment). These are all omissions, it is asserted, referrable to the employer. 141However, the first defendant submits that the evidence made it clear that the plaintiff was not the only Blue Collar employee sent to work at the premises of Gate Gourmet. As Exhibit 1 showed (see page 74 for the entry on 1 April 2007), Blue Collar recorded their employees' attendance at Gate Gourmet, and appears to have had around 15 of its labour-hire employees on secondment to Gate Gourmet at the time of the accident. The plaintiff's uniform consisted of a barge with his name and photograph and the words "Blue Collar" on it. In addition, Blue Collar provided him with a safety vest (T 77). 142A young lady named "Vivian", who came to see the plaintiff at Gate Gourmet after the accident, appears to have been available if the plaintiff had any problems (T 77). This suggests, the first defendant submits, that Blue Collar had plenty of opportunity both to inspect the premises and to have input into the conditions under which its employees worked. Blue Collar should, as well as would, have known the nature of the duties to be carried out by the plaintiff and would have been well aware of the safety implications of issues such as faulty equipment. 143I do not accept these submissions. The plaintiff was working five days a week and received instructions on a daily basis from the leading hand and supervisor employed by Gate Gourmet. Most importantly, he used their equipment. Gate Gourmet treated him in the same way that they would treat any of their employees, in that they were exercising control over his day to day work activities and his hours. It was to Gate Gourmet that the plaintiff complained about the state of the trolleys, and it was the Gate Gourmet staff who had not only the obligations to take reasonable care to eliminate risks, but who were tasked with responding to complaints about inadequate or dangerous machinery. 144Counsel for the second defendant submitted that the evidence of the plaintiff that when he did complain he was told to stop "whinging" about the trolleys and get on with his job elevates culpability well beyond the normal, as this was a blatant dismissal of a problem being brought to their attention by a worker. In Maricic v Dalma Formwork (Australia) Pty Ltd at [74]-[75], the court noted that liability of an employer must be assessed on the facts of each case, but that a high percentage was appropriate where the labour-hire company also supply the plaintiff supervisor, as was the case in Maricic v Dalma Formwork (Australia) Pty Ltd. In the present case, that did not occur. J Blackwood & Son Ltd v Skilled Engineering Ltd [2008] NSWCA 142 was a similar case, in that the labour-hire company supplied a supervisor who was not only present on a daily basis, but the means of contact between the labour-hire company and the occupier. In those circumstances an apportionment of 30% was upheld. 145In TNT Australia Pty Ltd v Christie, where these features were not present, liability of the employer was fixed at 20%. Mr Robertson for the second defendant submitted that what he called "the norm" is about 20%. 146In the present case, I accept the submissions of the second defendant that the apportionment should be 90/10%. I agree with the submissions of Mr Robertson that the circumstances in which the plaintiff's complaints were treated so dismissively, and where not only the trolley which injured the plaintiff, but other trolleys, were in a poor state of condition and known by the first defendant's employees to be in this condition, the facts of this case are at the highest end of the scale. According to the plaintiff, Sonny had actual knowledge that this trolley was faulty and should not have been in use. In addition, there does not appear to have been anything other than the most haphazard system of repairs of faulty equipments. According to the plaintiff, the maintenance area was full of broken trolleys and there does not appear to have been any actual maintenance of the equipment going on. This is mismanagement and negligence of a very high order, and the first defendant's submissions to the contrary are not helped by the first defendant's continued failure to respond to subpoenae and notices to produce during the trial. 147I accordingly apportion the contribution of Gate Gourmet towards the damages award to 90%, and the contribution of Blue Collar to be 10%. I note the first defendant's submissions concerning the operation of s 151Z(2) Workers Compensation Act 1987 (NSW) in relation to the difference between the amount of 10% which is recoverable from Blue Collar pursuant to s 5 of the Act (written submissions, paragraph 5). 148The defendants have offered to agree upon the sums payable to the plaintiff once I have determined the apportionment of the damages between them. I have accordingly included in my orders a provision for the parties to bring in short minutes of order reflecting the mathematically agreed amounts payable to the plaintiff by way of damages. The defendants have not addressed me in relation to any consequential orders concerning the apportionment of costs. I have granted liberty to apply in this regard also.

Kemble v Gate Gourmet Services Pty Ltd

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