Martin Geyer v Redeland Pty Limited t/as Barbehire and Sydney Site Services Pty Ltd

The plaintiff 11The plaintiff was born on 9 September 1977. In mid 1994, he left school whilst in year 11 to work as a farm hand on a snow pea farm. He attended Mt Druitt Hospital that year as he was suffering from an abscess on his right hip. 12In 1995, the plaintiff commenced employment at Aabulk, a landscaping company. In 1997, he was unemployed for about three months as a result of Aabulk going out of business. In that same year, the plaintiff met his wife, Dianne Kissun. They adopted a child who is now 14 years old. 13In 1998, the plaintiff commenced employment organised through an employment agency. He undertook various jobs including washing tubs on a chicken farm, placing food on pallets in a cold room at P & O Storage and collecting roof light bats and placing them in crates at an insulation company. In 2000, the plaintiff took some time off work to care for his father who had cancer. The plaintiff also had a fistula at that time. 14In 2001, the plaintiff commenced employment at Sydney Site Services. The plaintiff's brother, Warwick Geyer, assisted with arranging that employment. The plaintiff conducted general maintenance work on buildings. In January 2004, he was contracted by his employer, the second defendant, to Probuild to work on the refurbishment of the AMP building at Circular Quay. The second defendant had a contract to carry out renovations in the plaza area between the two AMP buildings in Sydney's CBD. 15The plaintiff said that he was initially contracted by Sydney Site Services to carry out labouring but was later appointed as the confined space officer as a result of having a confined space certificate. The plaintiff's duties consisted of monitoring air and sounding the alarm if the air became dangerous. As part of his duties, he was required to attend occasional work functions including barbecues.

The incident 16On 17 September 2004, the plaintiff was notified by Rocco, the supervisor of the AMP building site, that he was required to attend a barbecue to celebrate the conclusion of the renovations. The plaintiff attended the function at 12pm and was required to stay at the function until 3pm at which time he decided to leave via a set of stairs. The plaintiff had not consumed any alcohol. When the plaintiff was travelling down the middle to the right of the stairs he saw a man turn in the stairwell from the street and commence going up the stairs. 17According to the plaintiff, in his oral testimony, the man was wearing the same uniform as the caterers at the function and carrying a black tub. The plaintiff said words to the following effect: "Hang on mate, I will go back up the stairs and give you a free go". The man continued to travel up the stairs. The plaintiff apparently twisted and flattened against the right side of the stairwell and as the man travelled past him, the man bumped him on the shoulder with his elbow causing him to lose his footing and fall down approximately 15 to 20 stairs (T3). 18The plaintiff was bleeding from his hand to his arm as a result of trying to grab the handrail to break the fall. He said he was in a lot of shock and had pain in his hands and back. A man who worked at Probuild, an Irish backpacker by the name of Niall, came to the plaintiff's aid. The man helped the plaintiff to the toilets. After the plaintiff had washed off the blood, he went home on the train. 19On the way home, the plaintiff experienced more pain in his lower spine from the middle down. He said, during examination in chief, that, as a result of the pain, he felt physically ill.

Post-incident medical treatment and employment 20The plaintiff apparently saw a Dr Edema the day after the incident. He did not attend work on Saturday, Monday or Tuesday. Probuild arranged for the plaintiff to see another doctor on the Wednesday. He attended work on that day but was required to leave and go home early. The plaintiff later saw Dr Ng who suggested physiotherapy but no other treatment. The plaintiff said the physiotherapy helped with the pain but did not assist in ameliorating the injury. 21On 11 October 2004, the plaintiff obtained a certificate to recommence suitable duties, that is, duties that did not require the plaintiff to lift more than 5 kilograms. He undertook minor maintenance jobs including finding leaks and sealing them at the Australian Taxation Office in Penrith. The plaintiff started to experience pain in his legs. He said that he took a lot of time off work and was concerned about his economic situation. He started to fall behind in his mortgage and car repayments. 22The plaintiff needed to work full time so he went to the doctor to obtain an unrestricted full duties certificate, after which he commenced work at Colgate, contracted to Probuild, undertaking duties such as cleaning and sweeping. He was also required to lift parts of a fire hose. The plaintiff had to take time off occasionally due to his back pain. He also experienced pain in his left leg. 23A letter from Sydney Site Services specified the dates at which the plaintiff was absent from work including a half day on 27 October 2004 and a full day on 28 October 2004 in the week he returned to work, a day off on 5 November 2004, 11 November 2004 and 25 November 2004. The plaintiff says that he did not inform his employer that he was taking time off due to his back pain because he had 'a very hard boss'. The plaintiff could not recall whether he had any days off in 2005, prior to ceasing work at Sydney Site Services on 6 May 2005. 24In May 2005, the plaintiff went to see Dr Ng again. He ceased working on or about 6 May 2005. Dr Ng recommended that the plaintiff undertake more physiotherapy and referred the plaintiff to Dr Woo, an orthopaedic surgeon. 25The plaintiff saw Dr Woo for the first time on 23 May 2005. Dr Woo recommended that the plaintiff have a MRI and physiotherapy. Dr Woo also recommended that the plaintiff lose weight. 26On 9 August 2005, the plaintiff was referred by GIO Insurance to Konekt, a rehabilitation provider. Konekt assessed the plaintiff on 30 August 2005 for the purpose of assisting with returning to work. In a report dated 5 September 2005 (exhibit 12), Konekt recommended a number of suitable vocational options including sales assistant (hardware and gardening speciality), store person, transport clerk, office administrative/clerk, animal attendant and farm hand. After the assessment, the plaintiff decided that the best course of action was to retrain as an assistant in nursing. 27The plaintiff commenced study in July 2006 through Australian Training Company. He relied upon workers compensation payments of roughly $800 per week (after tax) for financial support and also commenced work as an evening supervisor at a nursing home in North Turramurra. However, despite his income at the time, the plaintiff defaulted on his mortgage repayments and car repayments and, as a result, the car was repossessed. 28The normal duties of an assistant in nursing are to bathe people, help people into wheelchairs and feed people. However, the plaintiff's duties seemed to be limited to administering medication. He said during examination in chief that the only physical aspect of the role was moving a trolley. 29In 2008, the plaintiff completed his assistant nursing course. He said that he was experiencing increasing pain in his back and legs at this time. On 2 November 2008, he saw Dr Woo again and further scans were arranged. Within 9 days of that consultation, the plaintiff was admitted to Holroyd Private Hospital to have back surgery. The plaintiff said that the surgery did not improve his back. The plaintiff continued to see Dr Woo after surgery, however no further treatment suggestions were made. 30In December 2009, the plaintiff's partner was diagnosed with bowel cancer. To assist with the domestic chores, Dianne's elder daughter, Kylie, frequently visited. The pain in the plaintiff's back and legs was increasingly getting worse. However, he continued working as an assistant in nursing. 31The plaintiff thinks that he will no longer be able to work as an assistant in nursing due to the ongoing pain he is suffering in his back and legs. He says he finds it hard to concentrate when the pain sets in. The plaintiff currently takes 100 milligrams of Tramadol once or twice a day, depending on the pain, as well as Temazepam for nighttime. In addition, he takes Panadol or Nurofen on average four times a day. He also uses a walking stick for both signal and stability.

Identity of employee of Barbehire 32One of the issues associated with the liability of Barbehire arises from whether the man travelling up the stairs was an employee of Barbehire and acting in the course of his employment, or, alternatively, a person for whose conduct Barbehire is vicariously responsible. In other words, whether a Barbehire employee caused the plaintiff to fall and injure himself and whether as a result Barbehire is vicariously liable.

The evidence 33At first, the plaintiff said that the man travelling up the stairs was carrying a keg or a platter. However, he changed his mind during examination in chief and described the object as a black tub. (This change in evidence is explicable on the basis that prior to giving evidence, the plaintiff gained access to the Barbehire web page.) During cross-examination the plaintiff acknowledged that his recollection that the man was wearing an apron only became apparent the weekend before the proceedings commenced. Counsel alleged that the plaintiff formed such a recollection as a result of seeing a photo of a man wearing an apron on the Barbehire website. The plaintiff confirmed that prior to looking at the Barbehire website, his only recollection of the man's attire was that of a white shirt, and if reliance were placed on the prior statements, black trousers. 34Other evidence relevant to the identity of the man was adduced from four Barbehire employees, Matthew Chong Sun, Mark Lambert, Philip Combe and Amber Combe.

Evidence of Mr Matthew Chong Sun 35In his statement dated 31 May 2011 (exhibit 5), Mr Matthew Chong Sun says that he did not use the stairs where the incident is said to have occurred nor did he observe any person associated with Barbehire carrying any large object up those stairs during the afternoon. He said that he could think of no reason why anyone from Barbehire would be carrying goods up the stairs at 3:00pm on the day of the incident. 36Mr Sun had made an earlier statement on 29 September 2009. At that time, he was head chef. The statement was unsigned and marked for identification (see MFI 4). 37During his oral evidence, Mr Sun said that he filled out a catering staff report (exhibit F) for the function held on 14 September 2004. He confirmed, having viewed the catering report, that staff were present at the location of the function until 5.45pm but no renewed supplies of alcohol would have been transported up the stairs after 3pm. 38Mr Sun also gave evidence with respect to the packing up of crates. He said that materials were packed into the crates, transported down to the truck and placed on the truck. There was no need to empty the crate and bring it back up the stairs. Mr Sun confirmed that the wait staff at the function may have not actually served the alcohol but made it available in crates or tubs. He further confirmed that if that were the case, the alcohol might have needed to be replenished at about 3pm. Mr Sun said that despite only being asked to serve alcohol until 3pm, it may have been necessary to continue serving alcohol if guests stayed on past 3pm, however, this was very unusual. Furthermore, if alcohol were served beyond 3pm, this would have been recorded on the catering report. There was no such recording made.

Evidence of Mark Lambert 39Mark Lambert, an employee of the defendant, made a statement dated 29 September 2009, which was tendered in evidence (exhibit G). Mr Lambert was working as a chef at the Probuild function. He was responsible, along with Matthew Sun, for setting up all the necessary food, equipment, tables and chairs on the morning of the function. In paragraph 7 of his statement, Mr Lambert says that the only things that may have been carried on site on a person's shoulder were the three spits, which would have been transported on site prior to 8am. The statement of Matthew Chong Sun dated 31 May 2011 says that the equipment for the function included two large gas ovens, 3 spits, numerous buckets, bags of ice and tables and chairs. 40Mr Lambert says in his statement that five caterers from World Wide Workers ('WWW') were arranged to assist with the function. He confirmed that the only things that would have been carried off site were the spits, which would have been transported down the stairs not up the stairs. Mr Lambert further states that the caterers wore black trousers or skirts with white shirts and that Barbehire issued the caterers with black vests and nametags on site. 41Mr Lambert said that when working, he and Mr Matthew Chong Sun usually wore black pants with either a white or black chef's jacket or coat and no hat. 42Mr Lambert made a later statement on 1 June 2011 (exhibit 6). In that statement, he said that he did not use the relevant stairs to carry any large object up the stairs during the afternoon. He said: "I can think of no reason why we, being people putting on the Barbehire function, would have found it necessary to transport any large object up the stairs. The function was set up in the morning. All we had to do later in the afternoon was dismantle and transport the equipment [sic] down to the truck". 43On the third day of proceedings, Mr Lambert gave evidence. During examination in chief, he could not recall whether he saw anyone of Islander appearance working for Barbehire, which was a suggestion of Mr Geyer in his oral testimony. He was later cross-examined about his memory of the function. He said that he did remember other people bringing alcohol into the function. However, he omitted that fact from his previous statements. 44Mr Lambert also struggled to remember what time he left the function. However, Mr Lambert did provide useful information in relation to the system for packing up. He said that if the staff ran out of rubbish bags, they would transport the extra bottles down to the caterer's bins using the black or red bins (T 182). Mr Lambert could not confirm that this was the case when packing up after the function on 14 September 2004. 45During re-examination, Mr Lambert clarified that the red bins or crates are used to carry cutlery and plates and the black bins or crates are use for transporting ice for the drinks behind the bar.

Evidence of Mr Philip Robert Combe 46Mr Combe, the managing director of Barbehire, provided evidence in the form of a written statement as well as oral evidence on the second day of proceedings. Mr Combe confirmed that Barbehire was retained to provide catering services at a function. Barbehire's tax invoice for the event was annexed to the statement of Phillip Robert Combe dated 13 May 2011 (see annexure B, exhibit 4). It shows that ice tubs were provided as well as two chefs (Matt and Mark), four wait staff (Emile, Jessica, Jeremy and Erik) and three bar staff (Monique, Aidan and John). The seven hired caterers were not all in attendance. The tax invoice from WWW (annexure D of Mr Combe's Statement) contains charges for attendance of five separate hired caterers. 47In his oral evidence, Mr Combe said that appetisers were served from 11am, the main course at 12 noon and drinks were to be served between 11am and 3pm. He confirmed that there was no reason why Barbehire staff would be bringing drinks to the function at 3pm (T 166). 48Also annexed to Mr Combe's statement is a WWW schedule (see annexure C). Mr Combe confirmed that Barbehire had hired staff from WWW and those staff were under his direction for the duration of the function. He said that the wait staff wore a uniform. He confirmed that the uniform consisted of a white shirt and black trousers.

Evidence of Amber Danielle Combe 49Amber Combe made a statement on 13 May 2011, which was tendered in evidence (exhibit 7). Ms Combe is the daughter of Phillip Combe and was asked by her father to help out at the function because two of the WWW workers failed to show up. Ms Combe confirmed that two chefs, Mark Lambert and Matthew Chong Sun, were on site. She said that there were also other workers on site that day that were involved in setting up a boxing ring and marquee tent. Ms Combe said that she was on site from mid morning onwards but did not help set up or pack up. 50The plaintiff's brother, Mr Warwick Geyer also gave evidence relevant to the identity of the man travelling up the stairs. He said that the caterers at the barbecue were wearing black pants, white shirts and some were wearing a black vest or jumper as well. There was no reference to an apron.

Analysis 51It is apparent from cross-examination of the plaintiff, that his recollection of the identity of the man walking up the stairs is vague and affected by what he saw on the Barbehire website. It would seem that, during his evidence, the plaintiff was telling the truth as to who and what he believed he saw on the day. 52Considering the evidence of the four Barbehire employees (but bearing in mind that the burden of proof is on the balance of probabilities), the person travelling up the stairs cannot be identified as an employee of Barbehire or part of the catering staff. Barbehire cannot be held liable for the actions of the man involved in the incident. 53It is notorious that the effect of a recent visual depiction of a person (or likeness) has an unconscious affect on the memory. For criminal proceedings, this phenomenon is given recognition by the procedures in Part 3.9 of the Evidence Act 1995. 54Prior to the promulgation of the Evidence Act , the High Court and other authorities discussed these issues. In the criminal context, those authorities are discussed and summarised by McClellan CJ at CL (with whom Latham J and I agreed) in Wood v R [2012] NSWCCA 21 at [410] to [417] in particular. 55I accept that the plaintiff was being truthful in that he did not consciously give evidence that he knew to be wrong, but the effect of visiting the website shortly before giving evidence affected his "memory" of the person involved even by his description of him as an "Islander" in appearance and the description of what he was carrying. 56Submissions were made in relation to whether the man was a WWW worker under the direction and control of Barbehire. The first defendant relied upon Sweeney v Boylan Nominees (2006) 226 CLR 161 to support its submission that the first defendant is not vicariously liable for persons other than employees of the first defendant. There was discussion of the principles in Australian Mutual Provident Society v Chaplin subnom Australian Mutual Provident Society v Allan (1978) 52 ALJR 407;am P v Chaplin, Building Workers Industrial Union v Odco Pty Ltd [1991] FCA 87; 29 FCR 104 and Hollis v Vabu Pty Ltd [2001] HCA 44; (2001) 207 CLR 21 during the proceedings (see T 235). In my view, given the exercise of control over their work and the manner of its exercise, Barbehire were vicariously responsible for their conduct. However, the Court notes that even if other workers at the function were under the direction and control of Barbehire, the identity of the man travelling up the stairs at the time of the incident remains unknown or indeterminable. 57Because the burden of proof here is the balance of probability, some of the analyses in the criminal jurisdiction are inappropriate. Nevertheless, the Court must be satisfied, on the lower burden, of the "identity" of the other person (i.e. for whom he was performing work). The existence of a hypothesis consistent with it being other than a person for whose conduct Barbehire is responsible does not relieve Barbehire. 58In this case there are, on the evidence, a number of possibilities. First, it could be one of the catering staff for whom Barbehire is responsible (including for this purpose WWW workers). 59Secondly, it could have been an attendee at the party bringing additional alcohol at a time when it was known that the caterers would be providing no more. 60Thirdly, it could have been an employee of a local hotel or wine merchant who had been asked to deliver additional alcohol. 61We know that it was someone. Even disregarding the oral testimony of the plaintiff because of the effect of viewing the website, we know it was someone dressed like one of the catering employees on account of the earlier descriptions. However, any one of the foregoing possibilities fits that description. The catering employee is the strongest possibility of the three mentioned, but the strength of that possibility does not render the likelihood greater than the alternative (namely, all of the other possibilities). In other words, the possibility that the "other person" was a catering employee is greater than any one of the other possibilities but not greater than 50 percent. The Court is not satisfied, on the balance of probabilities, that the "other person" was a catering employee. 62Given the foregoing finding, a judgment for the first defendant must follow. Further, given the failure of the plaintiff to pursue negligence against the second defendant in any serious way, the plaintiff must fail in the proceedings generally. It is nevertheless necessary to deal, albeit briefly, with some other issues.

Factual causation (issue: did the incident cause the plaintiff's injury?) 63There is some inconsistency in the evidence as to whether the plaintiff suffered an injury to his lumbar spine prior to the incident. During cross-examination, the plaintiff denied seeing any doctor about back pain in 2004. However, it was alleged by the first defendant that the plaintiff had slipped and injured his back prior to the incident in September 2004. 64The notes of Dr Edema were adduced by the first defendant to show that the plaintiff visited Dr Edema in June 2004, as he was experiencing pain in the lumbar spine. 65A number of medical experts were called to comment upon the issue of causation.

Evidence of Dr Alexander Woo 66Reports of Dr Woo dated 24 May 2005, 23 June 2005, 20 July 2005, 27 August 2005, 6 October 2005, 1 December 2005, 2 February 2006, 30 March 2006, 17 August 2006, 26 June 2008, 2 October 2008, 11 November 2008, 14 May 2009, 16 July 2009, 19 November 2009, 21 November 2009 and certificate dated 9 December 2010 were tendered in evidence (see exhibit C). 67Dr Woo confirmed that he received a referral letter from Dr Ng. The letter addressed the history of the plaintiff's medical consults with Dr Ng. It stated that the plaintiff had met with Dr Ng on the night of 17 September 2004, on 21 October 2004 and on 6 May 2005. The letter disclosed four episodes of back pain between 21 October 2004 and 6 May 2005. 68Dr Woo confirmed that he first saw the plaintiff on 23 May 2005. At the first meeting the plaintiff disclosed the fact that he had incurred a back injury at a work function on 17 September 2004. He complained of back pain and pain to the right leg. 69Dr Ng recommended that the plaintiff have a CT scan. The scan was carried out on 12 May 2005. It showed some disc bulging in the lumbar spine. Dr Woo confirmed during cross-examination that disc bulging may occur as a result of degeneration of the spine. It may occur in people who are not experiencing back pain. 70Dr Woo organised a MRI scan, which was carried out on 14 June 2005. The scan showed disc degeneration and protrusions at L3/4, L4/5 and L5/S1. There was disc protrusion at T11/12. Dr Woo recommended conservative treatment with physiotherapy, swimming and gym exercises. 71When Dr Woo saw the plaintiff on 17 August 2006, he had reduced his weight from 125kg to 96kg. He had fluctuating back pain and pain in both hips. On 2 October 2008, the plaintiff complained of back pain and left leg pain in the calf and numbness extending from the thigh down to the big toe. 72It was put to Dr Woo that the plaintiff had incurred an injury to his spine three months prior to the relevant injury, that is, in June 2004. In re-examination, Dr Woo said that it was unlikely that the plaintiff would have been able to work a 53 hour week (see exhibit 1 and exhibit 11: time sheet dated 22 June 2004) after incurring a major injury to his back and therefore, the injury in June 2004 must have only been minor. 73All in all, Dr Woo's evidence supports the conclusion that the degeneration in the plaintiff's spine was caused by the fall down the stairs on 17 September 2004. Upon examination, Dr Woo observed that there was decreased sensation of the left leg over the L5 dermatome. 74The plaintiff had a second MRI of the lumbar spine on 30 September 2008. The scan showed postero-central and left paracentral disc protrusion at L4/5 with impingement on the left L5 nerve root in the lateral recess. On 11 November 2008, the plaintiff had a laminectomy of L4/5 on the left side. As a result, the L5 nerve root compression was relieved. 75A third MRI of the lumbar spine was performed on 7 July 2009. According to Dr Woo there was residual left paracentral disc protrusion at L4/5 with mild displacement of the left nerve root. 76Dr Woo also gave evidence relevant to the plaintiff's ability to undertake work in the future and the need for domestic care (see [107] and following).

Evidence of Dr Conrad and Dr Schutz 77Dr Peter Conrad compiled three reports dated 21 April 2009, 25 February 2011 and 2 March 2011. The first report states that the incident occurred on 6 May 2005, which was later corrected to 17 September 2004 in a supplementary report (dated 2 March 2011). As at 21 April 2009, Dr Conrad was of the opinion that the plaintiff had sustained a prolapsed intervertebral disc at two levels; the L4/5 more affected than the L5/S1 and that he may need further surgery, either a laminectomy or diskectomy or a lumbar fusion operation in the future. The cost of such an operation would be about $20,000 to $22,000. The plaintiff would have to take three months off work to recover from the operation. Dr Conrad also opined that the plaintiff was not fit to work as a labourer or as an assistant in nursing and that he was only capable of undertaking 12 hours per week of light work. 78Dr Conrad calculated the plaintiff's whole person impairment ('WPI') in accordance with the third edition of the WorkCover Guides and the fifth edition of the AMA Guides . The WPI attributed to the plaintiff was 16 percent. However, this related to a work-related incident on 6 May 2005. In a supplementary report dated 2 March 2011, Dr Conrad confirmed that the date of the incident to which the WPI relates is 17 September 2004. 79In contrast, Dr Thomson, a consultant surgeon and a WorkCover Trained Assessor of Permanent Impairment, Appointed Injury Management Consultant and an Approved Assessor of Permanent Impairment, assessed WPI at 5 percent. (See report dated 28 March 2006) 80Dr Conrad was called by the plaintiff. Dr Schutz was qualified by the first defendant. (T 137). They gave evidence conjointly. Their evidence was supported by a tender bundle (exhibit D). A joint report signed by Drs Woo, Conrad and Schultz was also tendered (exhibit E). 81As stated in the joint report, the plaintiff's lumbar pain dates back to June 2004. 82Dr Conrad was asked to comment on causation and his views as to the plaintiff's incapacity (T 138). He acknowledged that there are issues in determining whether back pain is attributable to one incident considering that there may be a number of exacerbations since the incident. He said that the issue has been addressed in a combined newsletter published by WorkCover and the Motor Accidents Authority in 2003. Dr Conrad said: "the general recommendation in cases like this is that where there is a significant accident well documented, and there may be exacerbations at a later date, then it is to be taken that the significant accident is the one that takes attributability, and I believe that this is the case of Mr Geyer's situation". 83The doctor said that, in general, back pain is attributed to the major incident not necessarily the first incident. (T 142). The plaintiff did not tell Dr Conrad about the June 2004 incident. He says that his understanding of the history of the plaintiff's back pain is that the June 2004 incident was a fairly minor episode and that the major injury commenced on 17 September 2004. 84Dr Schutz was unaware that the plaintiff had a past history of back pain prior to the incident on 17 September 2004. He found it hard to accept that the plaintiff would have forgotten that he had a back problem in 2000, an x-ray in 2004 and an episode in June 2004. He accepted, in answer to some questions, that on the history put to him by counsel for the first defendant the plaintiff has an ongoing back problem that commenced prior to the incident. 85Dr Schutz was asked to comment on the plaintiff's incapacity considering a number of assumptions such as the fact that no radiology was carried out in June 2004 and September 2004 and the fact that the plaintiff was pain free in October 2004. Dr Schutz confirmed that, upon seeing the patient in May 2005, he would not be able to attribute an injury to September 2004 or an earlier date. He said that the injury in September 2004 was similar to the injury suffered at the earlier date. Dr Schutz considered the notes and records of Dr Edema. From the notes, Dr Schutz could see that the plaintiff visited Dr Edema in September 2000 and had an x-ray at that time which showed scoliosis convex, in other words, a muscle spasm to the right side. Dr Schutz said that the x-ray revealed spine abnormality, which indicated a definite injury to the spine in 2000. 86The evidence of both Dr Schutz and Dr Conrad was based upon the history given to them by the plaintiff of medical treatment, which was presented to them in Court. That history can sometimes be inaccurate. In relation to the classification of the supposed June 2004 injury, both Dr Schutz and Dr Conrad said that if the plaintiff were able to return to work and carry out heavy lifting, then the injury would have been a minor injury. (T 144). Therefore, whether the June 2004 incident occurred or not is not significant. The plaintiff was of good health, having recovered from all prior injuries (if such prior injuries occurred), before the incident on 17 September 2004. I am of the view that the injury and all of its effect was caused by the incident of 17 September 2004 at work and I accept the assessment of Dr Conrad of 16 percent WPI.

Liability of Sydney Site Services 87There is no doubt that an employer owes a duty of care to their employees or people working under their direct control. In written submissions dated 22 June 2011, the second defendant submits that no case was made out against it. The plaintiff concedes that, but for the non-delegable duty, the second defendant would not have been named and any damages against them would be "the most minimal amount". 88There is no lack of due care established against the second defendant. There is nothing about the steps themselves that involved negligence by the second defendant in requiring or allowing employees to use them. There is no breach of duty by the second defendant and there must be judgment in favour of the second defendant on the action.

Contributory Negligence 89During cross-examination, the plaintiff was questioned about his proximity to the top of stairs where the incident occurred. He said that he was approximately four to five stairs from the top when he saw the man carrying the black tub and realised that there was not enough room for both of them to pass. The plaintiff said that the man was moving at speed and was 14 stairs from the bottom. It was alleged that the plaintiff would have had time to turn around and walk up 4 - 5 stairs in the time it would have taken the man to walk up approximately 14 stairs. However, the plaintiff says that he could not have avoided the accident in any way (T 126). 90Assuming for the purposes of this current analysis that either the second or first defendant was negligent, the Court needs to assess whether there is contributory negligence. 91The principle I adopt is that set out by the High Court in Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34, (1985) 59 ALJR 492 in which the plurality of the High Court ( Gibbs CJ, Mason, Wilson, Brennan and Deane JJ) said : "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) 96 CLR 10 at 16) and of the relative importance of the acts of the parties in causing the damage: Stapley v Gypsum Mines Ltd [1953] AC 663 at 682; Smith v McIntyre [1958] Tas SR 36 at 42-49 and Broadhurst v Millman [1976] VR 208 at 219, and cases there cited. 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." Further, reference may now be made to the provisions of s 5R and s 5S of the Civil Liability Act . 92If I were called upon to assess the issues of contributory negligence, I would hold that some proportion, but not 100 percent of damage, was caused by the failure of the plaintiff to take reasonable care for his own safety in not immediately returning to the top of the stairs in the time taken by the other person to climb a significantly greater number of stairs. I accept that the other person should have stopped; was travelling at some speed; and was lacking in due care. Since the identity of the person and his employer is unknown, it is unnecessary to examine whether there would be a duty of care. 93I would assess contributory negligence of the plaintiff at 25 percent.

Damages 94Because of the finding as to the identity of the other person on the stair and the lack of negligence alleged against the second defendant, this assessment of damage is strictly unnecessary. However, lest there be subsequent controversies that arise, I will deal with the issue, albeit briefly. 95There are a number of issues associated with the award of damages. Having assessed the nature and extent of the plaintiff's injury and his continuing disabilities, as well as the extent to which the plaintiff's injury related to the incident on 17 September 2004, as opposed a pre-existing injury, the Court should assess: (a)whether the plaintiff is entitled to an award for past and future economic loss and if so, to what extent; (b)whether the plaintiff is entitled to an award for past and future domestic assistance, with reference to the ongoing need for treatment, and if so, to what extent; and (c)The reasonableness of out of pocket expenses incurred by the plaintiff 96In assessing damages, the Court will, firstly, assess the effect of the incident on the plaintiff's physical and mental health. The Court will then turn to consider past and future economic loss and the need for domestic care.

The alleged effect of the incident 97The plaintiff filed a final statement of particulars on 1 July 2010 in which the plaintiff alleges that he suffered injury to the lumbar spine, bruising, psychological injury and left sciatica. 98The plaintiff also alleges that he suffers from a number of continuing disabilities including pain and restriction of movement of the back requiring surgery in the form of a laminectomy and diskectomy; referred pain down the back of left leg; referred pain down the right leg; numbness in both feet; loss of balance; inability to sleep due to pain; inability to walk up or down stairs; inability to squat; inability to walk for long distances; inability to run; inability to sit, stand or lie for long periods; inability to attend to gardening and lawn mowing; inability to drive for long distances; inability to care for his horses; inability to attend to any household chores; inability to participate in pre-injury recreational activities particularly horse riding; inability to lift, push, pull or bend; anxiety and depression; and inability to return to pre-injury employment. 99The aforementioned injuries and continuing disabilities were confirmed by the plaintiff when giving evidence in the proceedings. The plaintiff said that, prior to the incident, he had a fairly active social life with his partner, Dianne. They would commute to Gosford on the weekend, go to the beach together, take the dogs up the mountains, go fishing and go for long drives. The plaintiff had also enjoyed gardening, keeping animals and used to love horse riding. He apparently kept a number of horses at a friend's property in Llandilo. 100The plaintiff also fulfilled a number of domestic duties such as cleaning the house, cooking, maintaining the swimming pool and chicken pen. However, he says that as a result of the incident, he is unable to fulfil such duties and his partner, Dianne, does the work instead. 101The plaintiff said that his sleep patterns have altered since the incident. He says that on one occasion, he woke up in the middle of his acreage. Witnesses have also seen him sleep walking on Richmond Road. The plaintiff says that since the incident he has become withdrawn, very quiet and sometimes gets angry with his animals. He says that he no longer has a sexual relationship with his partner. 102The plaintiff's evidence was also supported by a number of other witnesses. Dianne Kissun was called to give evidence in the proceedings with respect to domestic arrangements at home. She was a nervous witness and uncertain about a number of facts. Ms Kissun recalled the plaintiff coming home one day and telling her that someone had pushed him down the stairs (T 156). She said his back was sore and he took some Panadol and went to bed. She recalled that the next day the plaintiff was unable to get out of bed so she called his employer and informed them of his condition. 103Ms Kissun said that, prior to the incident, the plaintiff was in good health and use to help out around the house prior the incident by cooking, gardening and cleaning. She said that after the accident, the plaintiff could not and cannot lift anything or mow the lawns. She said that she has to put his shoes and socks on (T 160). I accept her evidence. 104The plaintiff's brother, Warwick Geyer, also gave evidence with respect to the plaintiff's health condition after the incident. He said that he sees the plaintiff about once a month and there has been no improvement in his back pain during the time since the incident. The brother also said that the plaintiff does not drink (T 131). 105Warwick Geyer said that the plaintiff resumed work on 21 October 2004 until 6 May 2005. During that time, Warwick Geyer observed that his brother had a limp, he appeared to have a problem with his back and that he was assigned light duties, despite the fact that he was on a full duties certificate. Warwick Geyer could not recall the plaintiff having any time off work during that period. However, the plaintiff took a number of days off due to the pain over that period of his employment. 106Dr Greg Anning, a clinical psychologist, compiled a report on 24 November 2009. That report was not tendered against the second defendant. Dr Anning assessed the plaintiff on 12 November 2009. The report affirms the plaintiff's education and employment history as outlined above (see paragraph [12]). 107During Dr Anning's examination, the plaintiff reported that he is frightened that he will get hurt and that he suffers from sleep walking and panic attacks. He also said that he is angry with himself his inability to achieve anything physically. 108Dr Anning assessed the plaintiff according to the Personality Assessment Investory (PAI), the Beck Depression Inventory - Second Edition (BDI-II), the Beck Anxiety Inventory (BAI) and the Pain Patient Profile (P-3). The plaintiff's highest elevations were on Depression (79T) and Somatic Complaints (75T), which indicate that he is suffering from significant distress in relation to physical functioning. Anxiety (69T) and Suicide Ideation (60T) were also elevated. 109Dr Anning was of the view that the plaintiff was not distorting or exaggerating his symptoms. Dr Anning opined that recovery for his psychological condition was unlikely and that his psychological condition would only improve if there were significant improvement in his physical condition. 110I accept Dr Anning's assessment. I too do not consider that the plaintiff was exaggerating. Given the plaintiff's obvious disabilities and his lack of education, sophistication and intelligence, in my view the plaintiff is, for any practical purpose, almost unemployable, with which I will deal later.

Past economic loss 111The plaintiff seeks damages for economic loss resulting from his inability to return to work. He claims a sum of $800 per week (being the amount he was earning at the date of injury) from the date of injury to date and continuing. He also claims the loss occasioned through taxation of his workers' compensation payments pursuant to the principles in Fox v Wood [1981] HCA 41, (1981) 148 CL 438.

Future economic loss 112The plaintiff submits that he is unable to return to work as a result of his continuing disabilities. He claims a sum of $800 per week (adjusted to allow for CPI) on an ongoing basis from the date of the incident until retirement. He also claims loss of superannuation entitlements from the date of the incident until retirement at 9 percent of gross economic loss. 113Some medical evidence and the report of the rehabilitation provider demonstrated that the plaintiff could return to work in an occupation that did not involve heavy physical work. 114Dr Conrad was asked about Mr Geyer's future employability (T 139). He said that considering Mr Geyer's poor educational background, he is reliant upon employment of a physical nature to generate income. He does not think that Mr Geyer would be able to carry out heavy physical work such as labouring work in the construction industry (T 139). He said: "I would say that in a rehabilitation sense, he may be employable 12 to 15 hours per week in a situation where he may be able to stand or sit at will, not lift any more than 5 kgs of weight and not do repetitive lifting and bending. He may be able to do a light cleaning job..." 115Dr Schutz also commented on the plaintiff's condition and his employability. He said that he agrees with Dr Conrad (as evident in the joint report) and suggests that the plaintiff could do a job such as driving a light courier van or a menial job in a factory (T 141). Dr Schultz also said that if the plaintiff were required to work full time, he would require days off from time to time. 116Dr Woo said that the plaintiff would be fit to do light work in the distant future subject to having the mental capacity. However, he thinks that the plaintiff, at the time of the hearing, was not fit for any work. Dr Woo confirmed that he was hopeful that the plaintiff would improve in the future.

Domestic care 117The plaintiff claims past and future domestic assistance amounting to $413,510 and equipment and other needs amounting to $18,467.

Past domestic assistance 118The plaintiff alleges that as a result of his disabilities arising from the incident, he was unable to attend to his normal household duties. A report dated 4 December 2009 and a later supplementary report dated 27 May 2010 compiled by Evidex Pty Ltd were admitted into evidence (p 60 of exhibit D). The reports were not tendered against the second defendant. The information in the supplementary report was based on a 90 minute telephone discussion undertaken on 27 May 2010 and 2 June 2010. Those reports are consistent with the plaintiff's evidence at hearing and I accept them and the estimates and calculations therein.

Future domestic assistance 119Dr Woo said that the plaintiff needs some domestic assistance around and outside the house including wiping, vacuuming and mopping, washing and ironing, cooking, shopping and carrying groceries, handyman jobs, gardening and lawn mowing and personal care such as washing the lower half of his body and putting socks and shoes on. Dr Woo did not provide further details with regard to the frequency of care required. 120Dr Conrad was also asked to comment on the plaintiff's need for care. He said the plaintiff required 6 to 8 hours per week. He was not informed, prior to giving evidence in court, that the plaintiff keeps a variety of animals but agreed that the level of domestic care required fluctuates according to a person's particular circumstances.

Medical expenses 121The workers' compensation insurer has paid all of the plaintiff's medical expenses, but where the first defendant is liable in negligence, those expenses would be reimbursed to the insurer. 122The plaintiff claims the following future out of pocket medical expenses: Monthly GP review for next 2 years at $67 per visit $804 per annum Three monthly specialist review for next 2 years at $270.00 per visit $1,080 per annum Three monthly GP review thereafter at $67.00 per visit $804 per annum Twice annual specialist review thereafter $270.00 per visit $540 per annum Physiotherapy once per week for 2 years at $75.00 per visit $4,050 per annum Physiotherapy thereafter on when-needed basis $600 per annum Radiological investigations such as CT, MRI and x-rays $400 per annum Pharmaceutical expenses - Tramal, Tamazapan, Coloxyl, Panamax, Neurofen rub, pain away cream, anti-flemme herbal cream $2600 per annum Back brace $40 per annum Pain management (estimated) $12,000 per annum Counselling - 12 sessions initially at $206 per hour $2,472 Ongoing counselling - 2 per annum $412 per annum

123While the Court does not award damages against the first defendant for the abovementioned future medical expenses because liability is not established, I make clear that I would accept these expenses.

Is the plaintiff's claim statute barred? 124As outlined in paragraph [3], the plaintiff did not consult a solicitor until 18 November 2008 and did not commence legal proceedings until 5 years after the incident. Both the first and second defendants submit that the plaintiff's claim is statute barred. 125The first defendant relied upon Baker-Morrison v State of New South Wales [2009] NSWCA 35 (Ipp, Basten and Macfarlan JJA), as authority for the proposition that the term "all reasonable steps" in s 50D(2) of the Limitation Act 1969 includes consulting a solicitor. 126The operation of s 50D of the Limitation Act will depend on the facts in any particular situation. I accept that, in general, consultation with a solicitor would be one of the reasonable steps that must be considered in applying s 50D of the Limitation Act . 127However, the foregoing assumes obvious injury, damage and absence from compensation. In this case, as already noted, the incident that caused the injury occurred on 17 September 2004. The plaintiff claimed workers' compensation though his employer on 14 October 2004. The plaintiff was paid wages through workers' compensation. 128In 2008, the insurer stopped payments on his compensation and the plaintiff, as a consequence, went to his solicitors, for the first time, on 18 November 2008. The plaintiff has already been described. He went to the solicitor; he did not have his claim number or reference. The conference was short because of the pain being suffered by the plaintiff. He provided the solicitors with this claim number on the next day, 19 November 2008. 129The foregoing conference was arranged for the purpose of reinstating the plaintiff's workers' compensation payments and initiating domestic assistance. On 20 November 2008, the plaintiff's solicitors wrote to the insurance company requesting a copy of its file and any medical reports. The insurer provided these by letter dated 26 November 2008. 130On 10 December 2008, the plaintiff altered residence, because of his injury and its effect and because of his consequential impecuniosity. This created slightly different domestic care issues. On 17 December 2008, the plaintiff provided, by email, a statement about the accident and its effect to his solicitors as requested by them. On 19 December 2008, his solicitors arranged the first examination by Dr Conrad for 21 April 2009. Dr Conrad's first report was received on 24 April 2009, dated 21 April 2009. 131On receipt of Dr Conrad's report, the plaintiff's solicitor sought and thereafter obtained advice from counsel, lodged a claim under section 66 and 67 of the Workers' Compensation Act ; discussed with the plaintiff other possible causes of action; investigated the name of the catering company; and inspected the site with counsel and an engineer. 132On 11 June 2009, Probuild informed the plaintiff's solicitor of the identity of the caterer at the function. On 12 June 2009, the plaintiff's solicitor wrote to the first defendant. On 23 June 2009, the plaintiff's solicitor telephoned the first defendant and spoke with its managing director, who confirmed that the first defendant was the caterer, however the managing director was unable to provide certain details for which he was still searching. 133On 3 July 2009, the statement of claim was filed. 134Plainly, on the foregoing facts (and as is conceded by the first defendant) the plaintiff did not know the identity of the first defendant or the seriousness of the injury. Ought he have known? 135In determining what is reasonable in the phrase "all reasonable steps" the Court is entitled to take account of the circumstances of the plaintiff. While I accept, as earlier stated, the principle adumbrated by the Court of Appeal in Baker-Morrison , it is to a slightly different effect than that suggested by counsel for the defendants. Counsel inverts the logical process. Baker-Morrison stands for the principle that contacting a solicitor will, in most circumstances, be sufficient to satisfy the condition of taking "all reasonable steps". It does not always follow that failure to consult a solicitor is a failure to take all reasonable steps. 136In this case, the employer (the second defendant) through its insurer, paid workers' compensation for a significant period. The plaintiff always expected (at least until he was advised otherwise) that the injury would pass and he would return to work. The plaintiff, on the facts before the Court, could not have considered that the injury was sufficiently serious to warrant the commencement of proceedings. 137When the workers' compensation payments ceased, the plaintiff consulted a solicitor in order to have the payments continue (and medical and other expenses paid) until he could return to work. Even at that stage, the plaintiff was unaware of the seriousness of his injury or that it was such as to satisfy the level of seriousness that would allow proceedings to be commenced. 138The foregoing does not require knowledge of the statutory floors and caps for the commencement of proceeding. But it requires knowledge of the seriousness of the injury, being a seriousness that would, in fact and law, satisfy the statutory requirements. The plaintiff had that knowledge only on receipt of Dr Conrad's report (or more accurately when it was explained to him). Without knowledge of the seriousness of the injury, and in the absence of financial disadvantage of a serious or non-temporary nature, consultation with a solicitor was not necessary as one of the steps that a person, required to take all reasonable steps, must take. 139In other words, it is not reasonable to expect an injured worker, who continues to be paid, and understands the injury to be temporary, to consult a solicitor and contemplate commencing proceedings. When that worker either stops being paid, or understands that the injury has caused some permanent damage, then one would expect such a worker, acting reasonably, to consult a solicitor or take other steps to ascertain the seriousness of the injury, and his rights in relation thereto. 140In this case, even the plaintiff's solicitor did not realise the seriousness of the injury until 24 April 2009 (upon receipt of Dr Conrad's report). The plaintiff obtained that understanding some time between 24 April 2009 and 13 May 2009, when his solicitor rang him seeking instructions. Therefore the plaintiff's claim is not statute barred.

Conclusion as to damages 141Were I to be awarding damage, I would assess the non-economic loss at 35 percent the most extreme case, namely, $175,500; past economic loss at $217,804.96 at 30 June 2011; and calculate future economic loss on the basis of 90 percent of full economic loss because, as found, he has no practical prospects of employment even though he had a residual theoretical employment capacity (Dr Conrad at T 140.5 et seq and Dr Schultz at T 141.46 et seq). I would have fixed vicissitudes at 20 percent to allow for the outside possibility of recurrence of earlier back problems, notwithstanding my view that the plaintiff has and had recovered from them. I accept past earning were at $621.36 net per week and future earnings at $764.20 net. 142Further, I would allow past gratuitous care (at $22.94 per hour) of 8 hours and future paid care (at $35 per hour) of 8 hours per week. It cannot be expected that the plaintiff's wife, given her condition, can continue to provide assistance with dressing and chores. 143The parties can calculate the figures that flow from the foregoing and I accept the plaintiff's calculation of past and future out of pocket expenses. Superannuation losses would need to be calculated and, to the extent necessary, I accept the plaintiff's calculation on life expectancy.

Conclusion 144Ultimately, for the reasons given on the identity of the other person on the stair, the Court makes the following order: (i) Judgment for the defendants; (ii) Proceedings dismissed; (iii) The plaintiff pay the costs of the first and second defendants as agreed or assessed; and (iv) Liberty to approach to each party for any special or different order as to costs. 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: 21 March 2012