Milich v The Council of the City of Canterbury

Supreme Court of NSW|2011-06-10|Before: Davies J

Judgment 1The Plaintiff was employed by the Second Defendant, Ready Workforce Pty Ltd, a labour hire company. From some time late in November 2003 to the middle of 2005 he was hired out by Ready Workforce to Canterbury City Council, the First Defendant. 2The Plaintiff claims that whilst working for the Council he suffered injury both to his lower back and to his shoulders and neck area by reason of the work he was required to carry out at the Council. The principal work that he carried out at the Council was that of an offsider on garbage trucks. He was required to lift green waste and other household rubbish into the back of the compactor of the garbage truck. 3The claim made by the Plaintiff is not a straightforward one for this reason. Undoubtedly the most severe problem that the Plaintiff has suffered from and continues to suffer from is a problem associated with his lumbar spine. The Plaintiff claims that that was an injury brought about by a discrete incident on 20 February 2005 when he was required to lift a cast iron bathtub. There is considerable dispute about whether there was such a discrete incident and, if there was, whether it occurred in February 2005 or some later time. There is also considerable dispute about whether, if such an incident occurred, it was responsible for the problems associated with the Plaintiff's lumbar spine. 4The alternative way that the case is put is that by reason of doing repetitive lifting work with the Council the Plaintiff came to have injuries to his shoulders and upper back area. If the injuries to the lumbar spine are put out of consideration different questions arise about the Plaintiff's capacity for work by reason only of the shoulders and upper back injuries.

10When he went to the Council he thought he was going to be a truck driver. After he met the supervisor and some other people there he started working on the barrows. This involved sweeping the footpaths and the gutters. He thinks he might have done that work for a few weeks. 11He first began working on the trucks with the Council after New Year's Eve night 2004. He thinks he only worked as a truck driver with an offsider for a few days. Thereafter he started working as an offsider with Alan Burns as the driver. This work involved picking up green waste and general cleanups. 12At this time he was not working permanently with Mr Burns. That only happened, he said, when Mr Burns' permanent offsider, Troy Starr, was injured. This was about August or September 2004. 13The trucks that he worked on required the rubbish, whatever it might be, to be lifted into the compactor at the back of the truck. These trucks did not have lifting arms. 14The Plaintiff said that he had no problems with his back, his shoulders, his neck or his health generally until he noticed he was starting to get pains in February 2005. Those pains came on because of an incident that took place in February 2005. He was doing a cleanup with Mr Burns. There was about 1.5 to 2 tonnes of cleanup on what looked like half a block of land. The material looked as if it had come from a renovation. 15They started picking up the materials and then they came to a bathtub. They tried to lift the bathtub with Mr Burns on one end and the Plaintiff on the other. He said he lifted it up to his knees and dropped it because it was too heavy. He thought it was made of cast iron and might have weighed 200 kilograms or more. He said that when lifting the bath he probably strained his back, his left leg and his shoulders as well. The Plaintiff said to Mr Burns that they should leave the bathtub but Mr Burns told him they were going to pick it up. Mr Burns then reversed the truck onto the land to bring it next to the bathtub. They then both lifted the bath onto one end and lent it against the truck. Then they picked it up from the bottom and pushed it into the truck. 16The Plaintiff also gave evidence about the way he was required to deal with the green waste. It was left in bags, boxes and small metal and plastic garbage tins. Generally he was required to lift those containers to chest height and shake the contents into the back of the truck. Some of the green waste was heavy. He gave the example of having to lift palm trees. 17The Plaintiff said that when he started at the Council no one gave him any instructions in relation to safety-related matters. He claimed that he was told that he had to take instruction from Mr Burns, and that he, the Plaintiff, had no say in what materials would be collected and what would be left. He said that Mr Burns required him on occasions to lift white goods into the truck such as washing machines, stoves, fridges and bathtubs. The Plaintiff said that he complained about Mr Burns because of the intense manner that Mr Burns worked including picking more rubbish than the truck could properly carry. 18He did not want to work with Mr Burns. He said that Mr Gary Crowe, a supervisor, was the one who allocated him to Mr Burns although he asked not to be put with him and he was told that if he did not want to work with Mr Burns he could leave. The evidence, on the other hand, from Mr Crowe was that he asked the workers who wanted to work with Mr Burns as his permanent offsider and that the Plaintiff volunteered to do so. Mr Crowe denied that the Plaintiff ever complained to him about working with Alan Burns and said that the Plaintiff had never told him that he had suffered an injury or that he was having problems carrying out his work. I will deal later with the matter of whose evidence is to be accepted where there is a conflict. 19After the incident with the bathtub the Plaintiff said his pain was getting worse and worse. He used to take baths to ease the pain, and his wife rubbed cream onto him. 20In April 2005 the Plaintiff said that the pain was such that he had to cease work on 19 April. The Plaintiff then consulted Dr Rowe at the Miranda Medical Centre and subsequently a Dr Ajam. The evidence from the Plaintiff's wife was that she thought he went to a doctor within days of the bath lifting incident in February 2005.

Later work 21Thereafter the Plaintiff consulted a number of doctors. The Plaintiff did not work from 20 April 2005 until about August 2005 because, he said, of his injuries. In August 2005 Dr Ajam told him that he was only partially incapacitated and was fit for suitable duties. He said that he then approached Ready Workforce and asked for suitable work. 22Ready Workforce put him onto light duties and sent him to work at a few different places including Smithfield as a cleaner for a week and thereafter to a training centre at Camden for about 3 or 4 days. However, one day when he was at that centre he was in so much pain that he could not move. He called his wife and she drove him home. 23The Plaintiff said that Ready Workforce did not provide him with any other work after that time. He said that in September 2005 QBE, Ready Workforce's insurer, ceased making worker's compensation payments. In October 2005 he said he commenced looking for suitable jobs on his own. 24He said that on about 26 July 2006 he commenced working with Terry Degnan Family Trust, a Dairy Farmers milk franchise. His duties included delivering milk to customers. The deliveries took place at night and in the early hours of the morning. He said he usually worked a 40 hour week, 5 nights a week. His wife would help him with some of the deliveries if he was busy and she would also help him lift heavy packages. He said he would only lift weights of about 19.4 kilograms being the maximum weight of a crate. He said that he was earning on average $1250 per week gross. There were limited wage records in relation to this work. There was no contemporaneous document to verify the commencement date of 26 July 2006. For reasons I shall discuss that may be important. 25In his affidavit the Plaintiff said that on 31 August 2007 he ceased working for Terry Degnan because the pain in his back and left leg was unbearable. He said he had also begun to feel weakness in his right leg. However, he said that he did not suffer any further injuries to his neck, shoulders, back or legs whilst working with Terry Degnan. 26The Plaintiff has not worked since 31 August 2007. 27In his evidence-in-chief the Plaintiff said he ceased work on the milk run because he could not walk anymore. He had a particular incident where after working during the night he went to the bank the following afternoon and he could not walk. The Plaintiff claimed that he finished up in Auburn Hospital as a result of that incident. For reasons that will appear that does not seem to be correct. 28The Plaintiff said that from April 2005 the pain never went away. He eventually had surgery by Dr Mark Davies on his lower back in February 2009 but he claimed that he did not improve after that operation. He also had an operation on his left shoulder on 14 April 2009 and on his right shoulder on 16 June 2009, but there was no improvement.

29The First Defendant challenged the Plaintiff's account of the events. In particular challenge was made to the assertion by the Plaintiff that his lower back problems arose from a particular lifting incident in February 2005. The date of 20 February 2005 is first mentioned in a report of Dr Patrick of 10 October 2005. It was simply described as the date of injury to the Plaintiff's neck/shoulders/upper mid-back. Dr Patrick later clarified his reference to it, as I shall presently discuss. 30I note in passing that neither in the Statement of Claim filed 4 February 2008 nor the Amended Statement of Claim filed 26 March 2008 is there any mention of an incident in February 2005 nor of the lifting of a bath at any time. Both of these pleadings were put forward on the basis that the Plaintiff suffered injury through a course of work. Indeed, in the original Statement of Claim the only injuries are said to be to the shoulders, the cervical spine and the thoracic spine. The Amended Statement of Claim refers to the lumbar spine but does not say how or when the injury occurred. 31The Further Amended Statement of Claim filed 22 April 2010 pleads that the Plaintiff first noticed pain in his back, neck and arms on 20 February 2005. The Particulars do not mention a specific incident of any sort, let alone the lifting of a bath. It is only in the Second Further Amended Statement of Claim filed 22 September 2010 that the matter of lifting a bathtub on 20 February 2005 appears for the first time. 32The Plaintiff was not cross-examined about this. I do not think, therefore, that I should draw any inference adverse to the Plaintiff from it. Of course, the bathtub incident of 20 February had been mentioned to doctors long before the original Statement of Claim was filed. That makes it even more curious. 33In challenging the Plaintiff's account of the bathtub incident, the First Defendant relies on the evidence of Mr Burns, Mr Crowe and especially the contemporaneous medical records. It is necessary, therefore, to examine those records to see if they provide support for the Plaintiff's account of events. 34On 20 April 2005 the Plaintiff signed an Employee's Report of Injury. Not all of the document was in his handwriting but under the heading "What Happened" the Plaintiff wrote this: *Lifting heavy furniture and green waste. He said that he suffered strain to his neck and back. No date was mentioned. He said his treating doctor was Dr Rowe at Miranda Medical Centre. 35There was a medical certificate from Dr Rowe saying that he examined the Plaintiff on 19 April, and the Plaintiff said he was suffering from neck and back strain. Dr Rowe said the Plaintiff would be unfit for duty from 19 - 26 April. Dr Rowe's notes for 19 April say this: I get too much pain this (L) arm and shoulders. R shoulder 2/12 & L 1/12. O/E L & R arm raising painful but full neck mvts [movements] painful but full XR Neck & both shoulders. Works on clean up truck for council. Says man he works with is loading 10 tonnes and the limit should be 7 tonnes Dr Rowe prescribed Voltaren emulgel, Panadeine Forte and Panamax for the neck and back strain. 36The Plaintiff seems to have been sent for some sort of radiography because there is a report from Dr Wong of 19 April reporting on the radiological investigation. The investigation was to both shoulders, the cervical spine and the dorsal spine. There was no mention of the lumbar spine. 37The report in relation to the shoulders said this: No joint or bony abnormality in both acromio-clavicular or gleno-humeral joints. Joint spaces not narrowed. No osteoarthritis, subacromial spur or rotator cuff calcification. 38The report on the cervical spine said this: Slight narrowing of C3-C4 disc space suggestive of an early/mild disc-lesion. Mild C3, C4 and C5 spondylosis with encroachment onto the left C3-C4 foramen. No cervical rib. Normal alignment in functional views. 39The next medical report is a report from Southern Radiology to Dr Ajam of 5 May 2005 in respect of an ultrasound to the Plaintiff's shoulders. The report says this: No rotator cuff tear nor tendinopathy was seen. No bursal effusion or impingement has been identified. There is mild AC joint arthritis bilaterally. 40There is then a further report from Southern Radiology to Dr Ajam of 31 May 2005 reporting on the CT of the cervical spine. The report notes that the Plaintiff complained of tender neck with paresthesia in arms. The report concluded: There are degenerative changes on the left side of the C2/3 and C3/4 levels but no significant foraminal narrowing or obvious nerve root compression can be seen. 41On 6 July 2005 there was a further report from Southern Radiology to Dr Ajam in respect of an MRI on the Plaintiff's cervical spine. The most significant matter reported was a significant central and left posterolateral disc herniation at C3/4 which contributed to a narrowing to the left C3/4 exit foramen. It was said that that might well impact upon the ventral rootlets of the left C4 root. 42It appears that Dr Ajam must have sent the Plaintiff to Dr Bernard Kwok, a neurosurgeon because he reported on 25 November 2005 to Dr Ajam. The report relevantly reads: Thank you for asking me to see Mr Milich regarding his neck and arm pain. I saw him on 25 November 2005. The patient is a 46 year old truck driver. According to the patient, the pain started In January 2005 with gradual onset of neck and bilateral arm pain. The arm pain radiates to the elbow and I cannot pin him down to which side is being the more painful of the two. So far, he has failed to respond to physiotherapy or exercise. He is using Voltaren Rapid, Panadol Rapid and Nurofen Plus. Because of the pain, he had to stop work in April and there is no history of sphincteric incompetence, The patient denies any previous attacks and there is no other relevant history. On examination, the patient is a heavy built person, Cervical spine movement is only slightly reduced with extension. There is no tenderness on palpation. He had difficulty with abduction of either arms and also had difficulty keeping the arms in an overhead position. The motor function testing is hampered by pain restriction. Sensation is intact and his upper limb reflexes are intact. CT scan performed in May shows mild C3/4 anterior spondylotic changes. There is no evidence of canal or foraminal stenosis. The MRI scan on 6th July again shows mild C3/4 bulges. I did not find any evidence of canal or lateral recess stenosis. This is different to the radiology report, Currently, I do not have an answer for Mr Milich's pain, His complaint is not supported by evidence on examination and the scans are fairly innocuous, I have suggested he should consult you regarding a rheumatological consult. He also mentioned about Dr Davies and I am certainly happy for him to have a second opinion from Dr Davies. (emphasis added) 43By October 2005, it would seem, the Plaintiff had consulted his solicitors because there is a report from Dr Patrick to those solicitors of 10 October 2005. The report discussed what the Plaintiff told Dr Patrick about the nature of the work at the Council. It was said to be quite physical involving street clean-ups of furniture etc and also green waste. The Plaintiff described having to work with what was described as a "workaholic somewhat manic truck driver" called Alan. 44Dr Patrick recorded the date of the injury as "about 20 February 2005; October 2003 - 2005". The nature of the injury was described as "Work-related injuries to neck/shoulders/upper-mid back". It went on to say: As a result of the nature and conditions of his work handling the quite heavy furniture, green waste, and other loads, he began to develop significant pain initially mainly at both shoulders, symptoms coming on on or about 20 February 2005, but there was also significant neck pain and upper-mid back pain. The initial symptoms were mainly at shoulders and upper arms. 45Dr Patrick listed the Plaintiff's present symptoms and it is to be noted that there is no mention of the lower back or the legs. Dr Patrick's conclusion was that the Plaintiff had sustained significant injury as a result of the nature and conditions of his work with the Council with "symptoms coming on relatively acutely on or about 20 February 2005" and resulting from the nature and conditions of his work between October 2003 and 2005. He assessed the Plaintiff within the AMA 5 Guides and the WorkCover Guides at 22% Whole Person Impairment. This was made up of 13% for the cervical spine, 5% for the thoracic spine, 2% for the right shoulder and 4% for the left shoulder. It was not made clear how those figures produced a 22% WPI rather than 24%. 46On 8 February 2006 Dr Patrick wrote again to the Plaintiff's solicitors saying this: I have reviewed material in my possession in relation to Mr Milich's work-related injuries to his neck/shoulders/upper-mid back, and although I have set out the date of injury as being "about 20 February 2005; and October 2003 - 2005", the reality is that there are not really two separate injuries. There has been no frank accident or injury which has occurred on 20 February 2005. This date merely reflects the date when he became significantly aware of his symptoms. I believe that the percent WPI of 22% as outlined in the table paragraph on page 5 of my report of 10 October 2005 should appropriately be regarded as resulting entirely from the nature and conditions of his employment between October 2003 and 2005. (emphasis added) 47That appears to be a very significant report in that it suggests that no complaint was made to Dr Patrick about any particular incident on 20 February 2005, let alone an incident that involved the Plaintiff's lower back. But it also suggests (as does Dr Kwok's report) that the Plaintiff was experiencing some pain, discomfort and/or symptoms prior to 20 February 2005. 48It should be noted that, in the medical material to this point, there has been no mention whatever of an injury to the lumbar spine, lumbar spine problems, or (on the basis of Dr Patrick's report of 8 February 2006) any report of a frank injury on 20 February 2005 or any surrounding date. 49The next medical record is a page of patient notes made by Dr Mark Davies on 22 May 2006. These notes contain the first mention of a bathtub incident on 20 February 2005. The notes read (inter alia): Forced to pick up iron bath tub - ? 300k - injured 20/2/05. Pain both shoulders ...  back and left leg 50Elsewhere in the notes there is a reference to constant shoulder pain and pain in both arms, occasional lower back pain, left leg pain which is intermittent but daily. There is a reference to what appears to be the need for the Plaintiff to rest if he walks for more than 20-30 minutes. 51There is also an interesting note made in relation to work performed by the Plaintiff. It is not all easy to read but relevantly what it says is this: Previously 16 months at Council ... stopped work last April. Never went back after injury "too risky". There is then another connecting line to the word "work" which reads: Some work now (4 nights) make up order/delivery. 52It is difficult to infer other than that last note is a reference to the Plaintiff working on the milk run. He certainly gave no evidence of any other work prior to the milk run job, and the description sounds like his evidence about the milk run. Some wage records show that the Plaintiff was working 32 hours per week (suggestive of 4 nights) until May 2007 when his hours increased to 40 per week. This note of Dr Davies was made some two months before the Plaintiff claims he commenced working on the milk run. Dr Davies' report of 22 May 2006 makes reference to this work also. It cannot be suggested, therefore, that those references in the notes were added later. 53There is a report from a physician in nuclear medicine on 30 May 2006 detailing the results of a bone scan. It is not clear what prompted this report, but it refers to multiple low-grade rib injuries. Nevertheless, the clinical assessment refers to chronic cervical and lower back pain and left lower limb pain. The report says: There is disco-vertebral disease at L5/S1. There is mild arthritis of the superior margins of the sacro-iliac joints. 54The report also said: There are multiple low grade rib injuries. This involves the right 6th rib in particular but there are also injuries within the R 7th and 8th ribs and the left 8th and 10th as indicated on the films. The conclusion in relation to the ribs was: Multiple rib injuries presumed post traumatic. I note, again in passing, that the report seems to suggest the Plaintiff had suffered some trauma at about that time, at least to the ribs. That may have relevance because it is at this time (May 2006) that the problems with the lumbar spine are first mentioned anywhere. However, the matter was not explored in evidence, and I do not think I should draw any inference adverse to the Plaintiff from it. 55There is then a report on a MRI of the Plaintiff's thoracic and lumbar spine from the Department of Radiology at Royal Prince Alfred Hospital. The complaint noted as justifying the MRI was left sciatica pain. The report disclosed that at L3/4 there is a focal central disc protrusion which was indenting the anterior aspect of the thecal sac. At L4/5, there was a left paracentral disc extrusion abutting the anterior thecal sac and causing a degree of canal stenosis. It was said that that would appear to be abutting the exiting left L5 nerve root. That would account for the sciatica. At L5/S1 there was a minor broad-based disc bulge. 56It is clear, therefore, that by the middle of 2006, there was radiological evidence supporting the Plaintiff's then complaint of, at least, left sciatic pain and probably lower back pain. Why it apparently emerged at that time does not appear. 57The first doctor to report on such complaints, apart from the notes of Dr Mark Davies, was Dr Patrick in his report of 16 August 2006 to the Plaintiff's solicitors. Dr Patrick said he had perused multiple documents being mainly imaging study reports, bone study reports and other reports, and he went on to say: Perusal of these reports does cause me to affect my previous report of 10 October 2005 and probably also opinion and assessment, in that it would appear that Mr Milich has developed some left lower limb sciatica since seen by me in October 2005 (no particular complaint of left lower limb sciatica when seen by me at that time). I note that he has been seen by Dr Mark Davies, experienced neurosurgeon/spinal surgeon of Kogarah, and sent for radionuclide bone scan, demonstrating multiple rib injuries, presumed post-traumatic, and also significant disc lesion at low lumbar spine, particularly at L4/5, consistent with a left L5 radiculopathy. I note that bone density studies have been normal. It is likely, that if there is some work-related injury to the lumbar spinal region, that some further assessment in respect of lumbar spine may become indicated. I do not know whether or not there has been any further traumatic incident sustained by Mr Milich since seen by me on 6 October 2005. Clinical re-examination of him may be indicated. I will leave this to your judgement. (Emphasis added) That report was based only on a review of reports and did not involve a re-examination of the Plaintiff. 58Dr Patrick then re-examined the Plaintiff on 5 October 2006 and reported on this on 9 October 2006. In relation to Mr Milich's working Dr Patrick said this: Mr Bill Milich himself is attempting some part time work at present, doing some driving, and some delivery work in a milk franchise. He was doing this work just very part time initially, but his work hours have built up to about 40 hours per week. He is finding it difficult. The work does not involve significant lifting/carrying in that he is able to use a trolley, but he is "in pain every day" and believes he will probably only be able to keep this going until about Christmas. 59The Plaintiff also told Dr Patrick that his wife did not work outside the home. This may be contrasted with the Plaintiff's evidence to the effect that his wife assisted him from time to time on the milk run. 60In relation to the Plaintiff's complaints, Dr Patrick said this: Details of Mr Milich's significant work-related injuries and subsequent progress are set out in my previous report to you of 10 October 2005. At this occasion of re-examination, he tells me that he has had some degree of low back pain also, ever since early 2005, and this has been mentioned to his doctors. He did also develop some symptoms into left lower limb. 61In relation to his symptoms at that examination Dr Patrick listed ongoing neck pain posteriorly with the neck being stiff, pain and discomfort at both shoulders superolaterally with pain at the tops of the shoulders, continued difficulty using the arms outstretched or overhead, and Dr Patrick noted: He is having difficulty coping with his current work with the milk franchise, even using a trolley. ... He tends to be exhausted at the end of the day's work. He believes he will not be able to continue this for long. 62Dr Patrick also reported on back pain at the upper-mid thoracic spine and low back pain which goes intermittently into the left buttock and left lower limb. 63Dr Patrick's opinion was this: Re-examination of Mr Bill Milich on this occasion does not cause me to significantly alter the opinion as expressed on the final pages (pages 4 and 5) of my report to you of 10 October 2005, except that there has been some settling of signs at his thoracic region, but he gives a history of low back pain going into left lower limb with left sided sciatica. On questioning, he gives no history of frank subsequent injury (such as assault, or motor vehicle accident) which might have accounted for the significant changes on radionuclide bone scan as ordered by treating neurosurgeon/spinal surgeon, Dr Mark Davies, and carried out on 30 May 2006. I do note that this radionuclide bone scan has been carried out approximately just a little over a year subsequent to Mr Milich ceasing his very heavy and very physical work with the council (ceased work there in April 2005). Changes of increased blood flow/increased osteoblastic activity on radionuclide bone scan can be present for up to 18 months or so following traumatic incidents, and I believe in the absence of other history of injury, it is likely that the changes have represented stress fracture or fractures in the ribs, associated with his particularly physical work as described in paragraph 3, page 1 of my report of 10 October 2005. 64Dr Patrick's assessment of whole person impairment remained unchanged at 22% allocated as follows: Cervical Spine13 % Lumbar Spine5% Right Shoulder2% Left Shoulder4% 65The Plaintiff saw a Dr Katataris who is described on his letterhead as an Injury Management Consultant for WorkCover. Dr Katataris does not say when he examined the Plaintiff but his report is dated 10 December 2007. 66He reported that the Plaintiff told him that in February 2005 his symptoms began. They was pain in both shoulders, neck and lumbar spine "with no specific mechanism of injury". 67The Plaintiff told Dr Katataris that he had ceased work with the Second Defendant and in July 2006 had returned to work as a truck driver. He continued with that work for more than 12 months until the 31 August 2007 and Dr Katataris noted "he denies any problems or substantial difficulties during this time". He then related to Dr Katataris the incident on 31 August 2007 when he went to the Bank and had difficulty walking. Contrary to his evidence that he ended up in Auburn Hospital, he told Dr Katataris that when he arrived home he was taken by his wife to his General Practitioner. I shall return to this later, but that statement seems to be correct. 68At some point while he worked for Terry Degnan he became interested in buying the milk run from him. He said that he was close to signing a contract with Mr Degnan and that would have been a couple of weeks or a month before the incident of 31 August 2007.

69The Plaintiff was not an entirely satisfactory witness. The following matters lead me to the conclusion that generally I should not accept the Plaintiff's evidence unless it is otherwise corroborated or is against his interest.

(1)Contemporaneous medical evidence 70The survey of contemporaneous medical evidence is inconsistent with the account of events the Plaintiff now gives of the events in 2005 and 2006. First, there was no complaint about a discrete incident involving lifting a bath until it appears in the notes of Dr Mark Davies on 22 May 2006. Secondly, the only reference to 20 February 2005 is the date when the Plaintiff first experienced pain in his neck and shoulders. Thirdly, there were no complaints about lumbar spine pain nor sciatic pain, again, until complaint was made to Dr Mark Davies on 22 May 2006. 71Fourthly, although the Plaintiff gave evidence that when, on 31 August 2007, his legs gave way he finished up in Auburn Hospital the report from Dr Katataris of 10 December 2007 provided a history that, when he arrived home, he was taken by his wife to his GP and was given Oxycontin as an analgesic. Thereafter he had two days of bed rest and was referred to Dr Mark Davies. A report from Auburn Hospital shows that the Plaintiff presented there on 13 February 2006 with severe pain to the left arm and lower chest area. He was also said to have generalised body ache from an unspecified previous injury. It can be accepted that anyone can make a mistake about an event or its timing, but the presentation to Auburn Hospital was 18 months before the incident on 31 August 2007. It is a further significant example of the unreliability of the Plaintiff's evidence, particularly for establishing when events occurred. 72Finally, there is the matter of when the Plaintiff commenced work on the milk run. He said it was July 2006 but the description of the work he was performing given to Dr Davies on 22 May 2006 suggests that it is the milk run. If it was not, then the Plaintiff was doing other work between the time he was working at the Council and when he took on the milk run job. That was contrary to his evidence.

(2)The coffee shop(s) 73The Plaintiff gave inconsistent evidence about owning, managing or running coffee shops. He was asked in chief if he began operating businesses in coffee shops after his shoulder problems healed many years before. He was asked how many coffee shops he had and he said "about 4 all up". That contrasted with paragraph 5 of his affidavit: Between about 1993 and 2003 I owned a coffee shop. This coffee shop was at Fairfield and was called Fairfield Coffee Lounge. 74His evidence then about coffee shops in cross-examination was as follows: Q. Mr Milich, can I just ask you about your work before you went to Ready Workforce. You say in your evidence, as I understand it, that you owned four coffee shops in the late 1980s until the mid 1990s; is that right? A. Yes. Q. And the first of those was at Cabramatta? A. Yes. Q. And I think you said today that the other three were in Fairfield? A. Yes. Q. Is his Honour to understand from your evidence that you operated, in the sense of owning those coffee shops? A. Not all of them. Q. Which ones did you own? A. The first one. ... Q. What happened? A. It closed down ... Q. And I take it then that you started a coffee shop at Fairfield? A. Yes. ... Q. And did you run that on your own? A. Yes I did. Q. And did it have a name? A. Yes it did. Q. What was its name? A. Fairfield coffee lounge. Q. You didn't have any partners in that business? A. No. Q. Do you know when it was that you started that business? A. When it was, when it was? Q. When was it that you started that business? A. I don't know. It would have been 90, 91, something like that. Q. How long did you operate it for? A. About 12 months. Q. What happened at the end of 12 months? A. I sold it. Q. And there was then another coffee shop at Fairfield? A. Yeah. Q. Did you own that? A. Yes. Q. What was it called? A. Just a coffee lounge. Q. Wasn't called the Fairfield coffee lounge? A. No. Q. How long did you operate that? A. Would have been - I don't know. I can't say now how long. Q. Was it years? A. Could have been. Q. What else could it have been? A. Could have been a couple of years. Q. Then what happened at the end of that? A. The end of that I stopped and I had another coffee shop. Q. And you owned the last one, did you? A. Yes I did. Q. So you have owned all four of them? A. Yes. Q. That's not what you said at the beginning? A. I said I owned one, but I managed the other ones. It's the same thing. I was the boss. I was in charge. Q. Did you own them all? A. Well, I was in charge, yes. Q. Did you own them all? A. My name, whatever. Q. Yes? A. No, I did not. Q. Which ones did you own? A. The first one in Cabramatta. Q. That was the only one you owned? A. The other one I was managing, yes. Q. When you say the other one, there were three other ones? A. Yes. Q. The others you were just managing? A. Yes. Q. So they paid you to work there? A. They didn't pay me. Q. They didn't pay you? A. No. Q. What were you living on? A. What I was earning. Q. So you were managing these coffee shops? A. Yes. Q. And, what, you took all of the money that came into that business for yourself? A. Not myself. Q. Who for? A. I would be the person who was involved there. Q. Who was what sorry? A. Who was involved. I think it was - maybe, maybe 60/40 or 70/30 maybe. Q. Well who was getting the 30 and the 40? A. Who was? Q. You or the other person involved? A. The other person. I was getting more. Q. So you would take 60 or 70 per cent from the profits of these coffee shops; is that right? A. Yes. Q. And you would live off that? A. Yes. Q. And I suppose you told the Australian Taxation Office about those businesses, did you? A. No I did not. Q. Why was that? A. Why? Q. Yes? A. Because I wasn't in charge. It's not my business. Q. Did you tell the Australian taxation office about the 70 per cent you were taking from the business? A. No no. Q. Why was there no need to? A. A person whose name was it, it's his duty. Q. To do what? A. To do these things. Q. To do what things? A. To do the accounting, the tax, whatever. That was his duty, not mine. Q. So you thought that the 70 per cent you were taking what, was tax free, or had already tax paid on it, or something else? A. Yes, tax paid for, yes. Q. So what - A. - because out of that money, people used to work there. They used to get paid too. I didn't take the lot. Q. So you didn't take all the 70 per cent? A. No of course not. Q. What did you do? A. People who used to work there, they got paid. Q. Out of your 70 per cent? A. Of course. Q. So at the end of each year, each financial year, do you understand what a financial year is? A. Yes I do. Q. At the end of each financial year, did you give the people who worked in the coffee shop group certificates? A. It wasn't my duty. Q. That was the duty of someone else? A. Yes. Who was named there. Q. So you were taking money out of your 70 per cent and paying people who worked in the coffee shop? A. Yes. That was all arranged by the person whose name was there. Q. But you were paying them out of your share? A. No. Q. What were you paying them out of? A. It all used to come out from the takings. A person would come there, and say this is the people who work here, this is for the expenses and this is for this. Q. And here is 70 per cent for you? A. No 70 per cent for me. It comes out from that. Q. What comes out from that? A. The people who used to pay, who work there. 75There was further evidence about the coffee shops as follows: Q. Were you working when you got married? A. Yes, I was. Q. What were you doing? A. I had a coffee shop in Cabramatta. Q. Well, I thought you got rid of your last coffee shop in about 1997? A. I think I had it at the time. I'm not sure if I got rid of it or not. Q. So you think when you got married in 2000 A. I know when I was with her, I don't know if I was married or not, I had a coffee shop. When I got married, I don't know. I can't remember now. Q. Did you have any partners in the coffee shop? A. No. Q. When you got married? A. No. Q. Just on your own, were you? A. When I got married? Q. At the time you got married did you have any partners with you in the coffee shop? A. Well, I am not sure now.

(3) Tax returns 76There is then a problem about a lack of tax returns at about the time he worked in the coffee shops. The evidence was as follows: Q. Did you have an accountant? A. No I did not. Q. Did you file any tax returns? A. No I did not. Q. So you took the view that you didn't need to file a tax returns? A. That's right. Q. Did somebody tell you that? A. No. Q. You just took that view? A. That's right. Nobody asked me. Q. Were you also working as a labourer and handyman for some of the time that you were running these coffee shops? A. Probably was. I did a lot of work. Q. Does that mean you don't know? A. I don't know. I know everything. Q. You know everything? A. I know everything, yes. Q. Well, did you work as a handyman? A. Yes I did. Q. And were you working for someone else or working for yourself? A. Somebody else. Q. Did that person pay you? A. Yes. Q. Did you file a tax return? A. No I did not. Q. Have you ever filed a tax return prior to working at the Council? A. Of course I have. Q. When? A. When. I can't remember now. Q. Did you do the tax return yourself, or get an accountant to do it? A. Accountant. Q. Do you know who that accountant was? A. No. Q. Can't remember? A. No. I had so many. Q. You have had so many? A. Yes. Q. How many accountants have you had? A. I can't remember now. What, 30 years, 40 years ago. Q. Who was the last accountant you had? A. The last accountant I had was in Auburn. Q. Who was the last accountant you had before you started work with the Council? A. I can't remember. Q. You know that you have been asked to produce tax returns for this case, don't you? A. Yes. Q. And you haven't been able to produce one for any period before starting work with the council, have you? A. Because I haven't got it. I threw them away. Q. You threw them away? A. Yes. Q. Did you go back to your accountants and ask them if they had any of your documents? A. No I did not. Q. Is that something you would be able to do? A. Possibly. Q. Do you have some records of the name of the accountants who have done your work over the years? A. I don't know his name. Q. How would you possibly be able to find these people who filed tax returns for you in the past? A. Well, if they are still there, if they have offices or not, or if moved. Q. You would have to go around to their offices, where you remember their offices being? A. If I remember, yes. Q. Sorry, if you remember? A. Yes. Q. So there is a chance you think that you won't remember where they were? A. I don't know. Q. Did you turn your mind to any of this when you were asked to produce your tax returns? A. No. Q. So when you were asked to produce your tax returns A. My solicitor asked me if I can produce the tax returns for this year and last year. That's what she asked me. That's what I produced. Q. You have produced more than that? A. I did not. Q. Didn't you produce a 2004 tax return? A. No. Q. 2005 tax return? A. Just last years, I think. Q. You are not sure about that? A. I know when I gave it to her last week it was last year, and year's before. I think that's it.

(4)Charges over possession of money 77He was asked questions about having been charged in relation to money in his possession. The amount of the money was said to be $51,230.00. The evidence he gave about whether money was his or somebody else's was completely inconsistent. The evidence was this: Q. You know you had some troubles with your money? A. Yes. Q. What were those troubles? A. You tell me. You got it on the record there. Q. What were those troubles? A. You got it on the record there. HIS HONOUR: Mr Milich, you have to answer the questions that are asked of you unless I reject the question. WITNESS: I was charged for my money. SHELDON Q. Well, you weren't just charged for your money, were you? A. What was it else? You tell me. Q. Well, before I tell you, do you only remember it being charged about some money in your possession, do you? A. That's right. My money. Q. How much money? A. $51,230. Q. And when do you think that was? A. I told you I cannot remember. Q. Well, how did you come to have $51,000 odd in your possession? A. It's my money, that's how. Q. Had you earned it? A. Yes. My money and my family's money. Q. How had you earned it? A. I said my money and my family's money. Q. Well, how much of it was yours? A. I can't remember now. Q. Half of it? A. No. Q. Less? A. No. My wife got a bank statement with how much she got out from the bank. I can't remember. Q. So your second wife you mean? A. Yes. Q. And she got it out of the bank; is that what you just said? A. Yes. Q. And some of it was the family's money and some of it was yours? A. Yes, yes, yes. Q. And when you say family do you mean your family or her family? A. Both. Q. But you don't know in what amounts it was her family, your family or yours? A. I can't remember now. Q. The bit that was yours, whatever it was, was that money that you had saved while working? A. My wife had the money on the account, she took it out. Q. But how did you come to amass do you understand the word "amass"? A. I understand. I told you it's my wife's and my family's money. Please, enough is enough. Q. So it wasn't your money? A. It wasn't my money, that's right. Q. None of it was your money? A. None of it was my money. Q. So a moment ago when you told his Honour that it was your money that you got into trouble for having A. It was my money at the time, yes. I took it from my family. I went one month to Western Australia to buy a block of land there on the beach at the time, me and my wife. That was our plan. Q. And you didn't buy the block of land? A. No, I didn't. Q. And you came to A. I came back with the money, that's right. Q. And you were spoken to about having the money? A. Yes. Q. So at that stage it was your money because you had taken it from your family? A. That's right. I borrowed it, yes. Q. You borrowed it? A. Yes. Q. But it was in your bank account or your wife's bank account, was it? A. Same money she had in her bank account. I don't know how much it was. 78Although I had the distinct impression that the Plaintiff was making up some of his evidence as he went along (in particular, the evidence about the coffee shops and the money in respect of which he was charged) I do not think that the Plaintiff was deliberately falsifying events that led to the problems with his lower back. The impression I had was that the Plaintiff now honestly believes that his lower back problems commenced with some discrete bath lifting incident on 20 February 2005. The contemporaneous medical evidence demonstrates quite clearly that he is wrong in this regard. Any injury that he sustained during the course of his work with the Council could only have been injury to his neck and shoulders - that was all he complained about prior to May 2006. 79The above matters, but especially the contemporaneous medical evidence, causes me to conclude that the Plaintiff's evidence about dates and events is too unreliable to accept unless corroborated by that or some other evidence.

(b)Alan Burns 80Although Mr Burns, at times, seemed reluctant to answer questions in a direct way, and although I thought he tried to play down the way he worked, he was a witness who was prepared to make appropriate concessions. He said it was rare to come across a cast-iron bath, and he said he could not recall having to lift one with the Plaintiff, but accepted that he may have done so. He supported the Plaintiff's description of how the bath would have been pivoted into the back of the truck if they had come across one. His evidence that the truck driver was not the person to give orders to the offsider was supported by Mr Crowe. I accept that evidence, contrary to the Plaintiff's. 81Despite what the Plaintiff said about him Mr Burns was complimentary about the Plaintiff saying that he was a good and willing worker who did not shirk his duties at all.

(c)Gary Crowe 82Mr Crowe was the team leader at the Council. I thought he was an honest and straightforward witness. He said that the driver of the truck was in charge of the truck but nothing more. Instructions were given by him (Mr Crowe) about what rubbish was to be lifted and what was to be left. He said that a cast iron bath should not have been lifted, but should have been left for the Council's one crane truck to collect. I accept his evidence in that regard. 83I accept his evidence where it conflicts with the Plaintiff's. Not only was the Plaintiff's evidence unreliable on a number of matters, but Mr Crowe's evidence on disputed matters was more inherently likely or was supported by other matters. I accept his denials of the Plaintiff's evidence that he (the Plaintiff) complained about Mr Burns to Mr Crowe. The Plaintiff asserted that Mr Crowe said that it was not Mr Crowe's concern. That strikes me as most unlikely when Mr Crowe was the team leader who was responsible for overseeing the rubbish collection and those involved in it. 84I accept Mr Crowe's evidence that the Plaintiff made no complaint to him about any injury or that he was trouble with his work. The evidence is consistent with no complaint being made to any doctor until April 2005, and no complaint about a specific injury until May 2006. 85His evidence was that when he asked the Plaintiff if he was prepared to work full time with Mr Burns the Plaintiff agreed. I accept that evidence. I can accept that Mr Burns may have been difficult to work for at times. Certainly there is a record of a complaint made by the Plaintiff about him to Dr Rowe on the first occasion the Plaintiff saw Dr Rowe, albeit that was at the end of his time at the Council.

Conclusions on the Plaintiff's principal case 86I do not accept that there was any discrete incident involving lifting a bath tub which caused injury to the Plaintiff's lumbar spine. The lack of complaint for 15 months to anyone, whether about such an incident or about pain and discomfort in the lumbar and leg regions persuades me that this is so. Nor do I accept that there was any particular incident that caused any injury to the Plaintiff. Even when the Plaintiff ceased work in April and saw Dr Rowe he merely mentioned shoulder pain for one month and two months respectively - not anything in particular that caused that pain. No particular incident was mentioned to Mr Crowe. The Plaintiff claims he said to Mr Burns in February 2005 that he was going to the doctor because his back, shoulders, leg and neck were sore, but he does not say he told Mr Burns that he hurt himself when he tried to lift a bath. No evidence was led suggesting that he did go to a doctor at that time. Nor when he completed his Employee's Report of Injury did he specify a particular incident nor any date. 87Quite how he came to have symptoms associated with the degenerative changes in his lumbar spine was not made clear on the evidence. What is apparent is that he was suffering symptoms in the lower back and leg area at least from a time shortly after he commenced the work on the milk run, such commencement preceding his appointment with Dr Davies on 22 May 2006. It is apparent from his description of that work that it involved bending, lifting and twisting. It is also apparent that the symptoms became so bad at the end of August 2007 that he was required to give up that work. 88Nevertheless, the evidence he gave that he was close to concluding a deal to purchase a milk run up to a few weeks, or a month at the most, before what he described as his breakdown incident on 31 August 2007, suggests that the pain in his lower back and legs was manageable almost up to the time he ceased doing that work. The fact that he was prepared to pay something in the vicinity of $200,000 for the milk run suggests that at the time of the negotiations he must have been confident that he could continue to do the work. Further, the fact that he increased his working hours from 32 to 40 per week and maintained those hours until 31 August 2007 also suggests that he was capable of carrying out that work, or work of similar intensity, until lower back problems prevented it. 89The Plaintiff submitted that the Joint Report of Dr Bodel and Dr Machart provided clear evidence that the problems with the Plaintiff's lumbar spine were caused by the Plaintiff's employment and, in particular, a lifting incident on 20 February 2005. There are a number of difficulties in relying on the Joint Report in that regard. First, although I raised the matter of what materials had been provided to these doctors for the purpose of their conclave and report, the materials were never identified. 90Secondly, it is apparent from the Joint Report that the doctors were basing their conclusions on a history given in some form about a lifting incident on 20 February. The Report says in Section 1: We agreed that our impression of the history in this regard was that he was then asymptomatic until at least the date of injury on 20 February 2005. 91Thirdly, these doctors were never called to give evidence, a matter I also raised. Had they given evidence they could have been asked whether they knew of the nature of the complaints made to doctors from April 2005 until May 2006 and the radiological investigations made in that period, whether they had seen the doctors reports and other documents dealing with the Plaintiff's complaints to which I have made reference earlier in this judgment, and whether they adhered, in the circumstances, to the opinion in the Joint Report especially dealing with causation of injury. 92For these reasons I do not consider the Joint Report provides a basis for concluding that there was a discrete injury in February 2005 nor that the injuries to the Plaintiff's lumbar spine were caused by his employment and hiring to the Council.

Plaintiff's alternative case 93The alternative case put by the Plaintiff is that he suffered injury to his upper back/shoulders and neck area by reason of the repetitive work he was required to perform whilst at the Council, namely the handling and lifting of heavy objects. The Plaintiff alleges the Council was negligent by failing to institute and maintain a safe system of work in relation to the heavy lifting that formed part of his job working on the clean-up trucks. The Plaintiff alleges that the Second Defendant had a non-delegable duty of care as his employer, and that it was negligent in not having a proper system of training for the work he was required to do, and in not ensuring that the Council had a safe system of work in place. 94By virtue of the arrangements in place between the Defendants and the role of the workers at the Council the responsibility of both Defendants is clear. The Second Defendant had a non-delegable duty of care to the Plaintiff although it was not an insurer of workplace safety - there needs to be some failure on its part: TNT Australia Limited v Christie [2003] NSWCA 47; (2003) 65 NSWLR 1 at [45] -[49], [67]. If the Second Defendant delegated its duty of care to the First Defendant and that duty was not properly performed the Second Defendant will be liable: Hodge v CSR Limited [2010] NSWSC 27 at [30] - [33]. The First Defendant's duty of care was akin to that of an employer: TNT at [41] -[43].

(a)Breach of duty 95There are two aspects to the evidence about a safe system of work. The first concerned the system that was actually in place at the Council. The second concerned the training and supervision of the workers both by the employer (the Second Defendant) and the Council. 96The evidence about the system of work that was in place at the Council came from the Plaintiff, Mr Burns and Mr Crowe. Some of the Plaintiff's evidence concerning the repetitive lifting can be readily accepted. The very nature of the job involved such repetitive lifting. It can also be accepted that from time to time the Plaintiff and the person with whom he was working lifted heavier items, although their obligation to do so was unclear. It cannot be accepted that the Plaintiff was obliged to comply with Mr Burns' demands. It can be accepted that heavier items, including perhaps a bathtub, were sometimes lifted by him and the Plaintiff rather than being left for collection by the crane truck. Mr Crowe's evidence was that there was only one truck owned by the Council that had a crane. Whether or not such items were lifted was, according to Mr Burns, mutually agreed. That, of course, does not make the system a safe one. 97Mr Crowe's evidence was that heavier items which were too heavy for two men to lift safely, were to be left for the crane truck to collect. Despite that arrangement it seems clear from the evidence of Mr Burns as corroborated by the Plaintiff that heavy items were sometimes lifted rather than being left for the crane truck. 98Council appears to have had a system of inspection in place that involved Mr Crowe making observations of those collecting the rubbish. The purpose of such observation concerned occupational health and safety. He said that he would make observation of workers not doing things safely two, three or four times a week, but the failures were minor such as not bending down properly before lifting. 99The other aspect to the system of work was the training given. The evidence of Mr Crowe was that he thought that the workers who came from Ready Workforce would have had their training by that company before they started with the Council. He said that he took the view that the Council had no responsibility to ensure that the persons who came to them as casuals had the appropriate training because that was left up to their direct employer to do. When he was asked if he ever gave specific instructions to the Plaintiff in the way he should carry out his work he said "I would imagine so". When asked to say what he told him he said "Probably just how to approach stuff, how to do it, bend your knees, that type of stuff, don't rush, just take your time, get the feel of it." Mr Crowe said that, in addition, a person came out virtually every year to "do standard OHS lifting movements", and that took place as part of a half day course that the Council ran. 100The Council had a written Manual Handling Policy which relevantly provided: Canterbury City Council is totally committed to the development of procedures and safe work practices to ensure the health and safety of all employees involved with manual handling tasks. The Council's commitment evolves from a desire to meet its legal and moral obligations to prevent needless pain and suffering to its employees, reduce the seventy of injuries sustained and improve return to work rates following incidents associated with manual handling injuries. ... C.Managers and Co-ordinators Are responsible and will be held accountable for ensuring this policy and procedures are effectively implemented within their respective areas of control. ... They will also be held accountable to ensure: Through consultation, that all manual handling tasks that are likely to be a risk to health and safety are identified. Risk assessment is done in consultation with Safety Committee members and employee involved in manual handling tasks. As far as possible, that risks associated with manual handling tasks are controlled. D.Supervisors/Team Leaders/Gangers Are responsible and will be held accountable to ensure: All employees under their direct control employ correct lifting and carrying techniques. Lifting weight in excess of 4.5kg is avoided while seated. Team fitting techniques are used where possible for lifting weight in excess of 20kg. Team lifting techniques or mechanical lifting devices are used for lifting weight in excess of 55kg. . Consultation with Safety Committee members and employees involved in manual handling-tasks is conducted during the identification, assessment and control processes. 101The Plaintiff claimed that when he went to the Council he was not given any instructions related to safety. This was contrary to the evidence of Mr Burns insofar as he himself received instructions. Mr Burns said that instructions were given about lifting practices when he went to the Council. It is to be remembered that Mr Burns had also gone to the Council from Ready Workforce. Nevertheless, the Plaintiff was not challenged about his evidence in that regard. Given that Mr Crowe did not have any clear recollection of having given instructions to the Plaintiff, and given his understanding that casuals who came from Ready Workforce had already been instructed in matters of safety, I accept the Plaintiff's evidence that the Council did not provide him with any specific safety instructions. 102When one has regard both to the instructions, if any, that were given to new employees by the Council, and the way safety in the workplace was inspected and policed, it does not seem to me that it can be said that the Council had a safe system of work in relation to the collection of rubbish. The impression I gained is that the system was a fairly casual one where the workers themselves decided whether or not particular objects should be lifted or left to the crane truck. It would not be necessary for persons in Mr Crowe's position to be out in the field inspecting to ascertain that items which were too heavy were in fact being lifted. It would be apparent from the items that were in the trucks when they arrived at the waste depot if they were items that which ought to have been lifted only by the crane truck. 103Whilst the Council's Manual Handling Policy was the starting point of a safe system of work the important matters were whether staff were properly instructed and properly supervised in accordance with that Policy. I am not satisfied that Council had a safe system of work in place to prevent injury from the repeated bending and lifting required of staff in the position of the Plaintiff. Although the evidence about weights of goods lifted was unspecific it seems clear enough from both the Plaintiff and Mr Burns that heavy items such as whitegoods and baths were team-lifted (2 men or more) when they ought to have been left for the crane truck. In that regard the written Policy was not followed. 104Further, the Council seems to have made assumptions about the level of training concerning safety that the workers it engaged from the Second Defendant had undertaken. 105In fact, the safety training conducted by the Second Defendant seems to have been inadequate. The Plaintiff's evidence was that an employee of the Second Defendant called Hayley Lord merely required the Plaintiff to watch some film on television for 20 minutes to half an hour by way of safety training. There was no challenge to that evidence by the Second Defendant. Nor was any evidence led by the Second Defendant about its safety training practices. In the circumstances a Jones v Dunkel inference is available that any such evidence would not have assisted the Second Defendant. 106In those circumstances I find that the Second Defendant did not have a safe system of training and instructing its employees in safety matters. 107Further, it otherwise left safety matters to the Council to implement and supervise. I have found that Council breached its duty in that regard. The result must be, therefore, that the Second Defendant is also liable. As Mason P said in TNT v Christie at [67]: In my view, it would be contrary to principle to enable or even to encourage an employer that operates a labour hire business to treat the normal incidents of the employment relationship as modified simply because its employees are sent off to work for a client. Indeed, the very fact that employees are dispatched to external venues and placed under the de facto management of outsiders will, in some cases, have the practical effect of requiring the employer to adopt additional measures by way of warning or training in order to discharge its continuing common law duty of care to its employees.

(b)Causation 108The issue of causation is governed by s 5D Civil Liability Act. The High Court has recently affirmed in Strong v Woolworths Limited [2012] HCA 5 at [18] that the determination of factual causation under s 5D(1)(a) is a statutory statement of the "but for" test of causation. The majority judgment said 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). 109In my opinion the failure of the Council in relation to its system of training and supervision of those engaged in rubbish removal was a necessary condition of the injuries sustained by the Plaintiff to his upper back and shoulder area. It seems clear also that the Plaintiff had some degenerative conditions in those bodily regions, but the medical evidence supports the conclusion that it was the way the work was performed that was a necessary condition of the injuries. 110The first substantive medical report is from Dr Patrick of 10 October 2005. I have already recorded what Dr Patrick said concerning the injuries complained of by the Plaintiff but it is worth setting it out again in relation to causation. Dr Patrick described the nature of the injury as "Work-related injuries to neck/shoulders/upper mid back". He then said: As a result of the nature and conditions of his work handling the quite heavy furniture, green waste, and other loads, he began to develop significant pain initially mainly at both shoulders, symptoms coming on on or about 20 February 2005, but there was also significant neck pain and upper-mid back pain. The initial symptoms were mainly at shoulders and upper arms. 111His opinion was as follows: I believe he has sustained significant injury as a result of the nature and conditions of his work with Ready Workforce/Canterbury Council, symptoms coming on relatively acutely on or about 20 February 2005 and resulting from the nature and conditions of his work with the council between October 2003 and 2005. I believe he has sustained significant disc injury at C3/4, occurring on a background of some degree of cervical spondylosis/facet arthrosis, and probably some degree of spinal Scheuermann's osteochondrosis, albeit asymptomatic prior to the onset of work-related symptoms in February 2005. He has also sustained injury to both shoulders with probable aggravation of AC joint arthrosis, and clinically some degree of bilateral subacromial bursitis/impingement. He has probably also sustained some upper-mid thoracic facet injury clinically, occurring on a background of some spinal osteochondrosis and mid/lower thoracic spondylosis. I believe his employment/work has been a substantial contributing factor to his injuries and continuing symptoms now. As a result of his injuries, he is permanently incapacitated for his pre-injury work. Given the particular nature and conditions of his work as described, I believe he is genuine, and has significant ongoing impairment and disability both. He is permanently incapacitated for his pre-injury work. He is permanently incapacitated now for physical work involving heavy lifting/carrying, heavy use of the arms or significant use of the arms outstretched or overhead. He would be fit for suitable lighter work, not involving such activities. 112I have already made reference to the fact that Dr Patrick assessed the Plaintiff as 22% Whole Person Impairment made up of 13% for the cervical spine, 5% for the thoracic spine, 2% for the right shoulder and 4% for the left shoulder. 113Dr Patrick's summary of the work that the Plaintiff told him he was required to do at the Council is consistent with what the Plaintiff described in his evidence at the hearing. 114What Dr Patrick found was also supported by the radiological evidence in the middle of 2005 that I have detailed earlier in this judgment. It is also consistent with the relatively brief notes of Dr Rowe that I set out above at [35]. 115On the other hand, Dr Kwok, who saw the Plaintiff on 25 November 2005, said his complaint was not supported by evidence on examination, and he thought the scans were fairly innocuous (see [42] above). 116Similarly, in his report of 22 May 2006 Dr Davies said this: I would agree with Dr Kwok's view that there is no obvious neurosurgical cervical or cervical cause for his shoulder and arm pain. There is no surgical treatment for this. I would agree wholeheartedly that Bill needs to see a Rheumatologist and also be referred to a Pain Management Physician. There is no doubt that this problem needs to be treated with an aggressive supervised upper body exercise program. It will certainly get worse with inactivity. 117There is, thereafter, considerable difficulty in isolating the Plaintiff's problems with his shoulder/neck and upper back areas because his main complaint from about this time is the lumbar spine and the sciatic pain. 118Nevertheless, Dr Patrick in his report of 9 October 2006 notes that his symptoms at that time included ongoing neck pain and stiffness, pain and discomfort at both shoulders superolaterally, continuing difficulty using his arms outstretched or overhead, and difficulty in that regard coping with his then current work on the milk run. 119Dr Patrick concluded that his re-examination of the Plaintiff did not cause him to alter significantly the opinion in his report of 10 October 2005 apart from the settling of some problems in his thoracic region and the development of low back pain sciatic pain. 120Dr Patrick reaffirmed his view that the Plaintiff remained unchanged at 22% Whole Person Impairment, but he now attributed 5% to the lumbar spine rather than the thoracic spine as he had done 12 months earlier. 121The Plaintiff was assessed by Dr Bye for the purpose of a Medical Assessment Certificate under the Workplace Injury Management and Workers Compensation Act 1998. Dr Bye assessed the Plaintiff's Whole Person Impairment at 15% which he allocated as follows - 5% for the cervical spine, 4% for the lumbar spine, 4% to the right upper extremity and 2% to the left upper extremity. He specifically disagreed with Dr Patrick's allocation of 13% to the cervical spine because he did not believe there was any measure of Whole Person Impairment relating to objective radiculopathy. 122The first joint report Dr Bodel and Dr Machart said this in relation to the complaints concerning the upper back and shoulders: We agreed that it would be imperative to have access to the local doctor's treating notes at the time of that initial clinical presentation to determine whether the neck and upper back or the shoulders were part of the original injury in determining the causation issue in this circumstance. We agreed that we were at this stage both uncertain as to whether there was a causal link between either the discreet (sic) injury that occurred at work on 20 February 2005 or the nature and conditions of work leading up to that date in relation to the shoulders and/or the neck and upper back. ... At this stage the medical evidence is incomplete in regards to causation in relation to the neck and upper back and the shoulders. ... ... Historically, it was agreed that the nature and conditions of his work was (sic) quite physical, heavy labouring orientated work. Historically, this gentleman was asymptomatic in the neck, upper back and the shoulders and the lower part of the back until the episode that occurred at work on 20 February 2005. Work duties in general therefore may be an aggravating factor to soft tissue pathology in the neck and the thoracic spine, the shoulders and the back although it was agreed that this is a relatively minor contribution to the overall "injury" in this circumstance. That last comment seems to relate to the fact that the principal concern that the doctors had in this first joint report was the injury to the Plaintiff's lumber spine. 123In their second report of 5 April 2011 these doctors said this: After some discussion it was agreed that both the nature and conditions and a possible involvement of the frank injury on 20 February 2005 are the injuries sustained in relation to the shoulders. ... It is agreed that the nature and conditions of work over a period of time is probably the most substantive cause of "injury" in relation to the shoulder pathology. The frank injury on 20 February 2005 is also a contributing factor. ... He is not fit to return to any restricted labouring activities because of the shoulder pathology. It was agreed that he should not engage in work activities with overhead use of the arms and he should have a lifting limit of 5kg up to shoulder height only. ... It is agreed that this gentleman is not fit for his pre-injury work activities because of the heavy nature of those work activities. He is fit for permanently modified duties, purely from the point of view of his shoulder injuries and must avoid strenuous and repetitive tasks overhead. 124The opinions of Dr Patrick on the one hand, and Doctors Bodel and Machart on the other, both of which I accept, are sufficient to show that the nature and conditions of the Plaintiff's employment with the Council was the cause of the injuries to his upper back, shoulders and neck area, albeit that there were some pre-existing degenerative changes in those areas. Dr Patrick's opinion provides useful evidence because that opinion is, at that stage, unaffected by the later complaint in relation to the lumbar spine and sciatic pain. Further, the second joint report is useful in isolating the problems concerned with the upper back area although there is mention of the "frank injury" on 20 February 2005. I disregard any cause associated with such a "frank injury", but the joint report says that the substantive cause in relation to the shoulder pathology is the nature and conditions of the Plaintiff's over the time of his employment with the Council. 125The Plaintiff principally relied for the issue of causation on section 2 of the report of Neil Adams and Associates of 24 April 2008. That section of the report is headed "Some Comments on Factors Associated with OOS [Occupational Overuse Syndrome]. This section of the report was objected to by Mr Sheldon of counsel for the First Defendant on the basis that Mr Adams' qualifications did not enable him to express an opinion on the matters in that section, and that he did not expose his reasoning process in any event. No argument was addressed to me on the report but counsel informed me that they were content for the admissibility of the section of the report to be dealt with in the final judgment. 126Mr Adams describes himself in his CV as is an ergonomist and safety management consultant with a Bachelor of Science, a Master of Ergonomics and Safety Management, and a Diploma in Adult Education. The Bachelor of Science was in Wool and Pastoral Science and the description of Mr Adams' work in that area does not suggest that it is relevant to the present enquiry. 127What Mr Adams purports to do in section 2 is to conclude that the injuries sustained by the Plaintiff could have been caused by his repeated performance of tasks in his employment with the Council. No real explanation is given of this and that may very well be because Mr Adams is not medically qualified to come to the sorts of conclusions reached by Dr Patrick, Dr Bodel and Dr Machart. 128For both of the reasons put forward by Mr Sheldon section 2 of the report should be rejected. 129Nevertheless, the Plaintiff establishes causation by virtue of what is contained in the reports of Dr Patrick and the joint reports.

(c)Contributory negligence 130Both Defendants plead contributory negligence suggesting in particular that the Plaintiff should not have lifted heavy items but should have left them for mechanical lifting. When both Defendants have been found to be negligent by reason of providing inadequate training, instruction and supervision to persons in the position of the Plaintiff, it cannot be said that the Plaintiff has been contributorily negligent in carrying out work that he believed he was required to do, and in the best way he knew how.

(1)The Second Defendant 131Part 5 Div 3 of the Workers Compensation Act 1987 contains a scheme for modified common law damages where an injury is caused by the negligence of the employer. There are two particular restrictions. The first is that no damages may be awarded unless the injury results (relevantly) in a degree of permanent impairment of the injured worker that is at least 15%. The second restriction is that the only damages that may be awarded are damages for past and future economic loss. 132The assessment of permanent impairment is one conducted pursuant to the Workplace Injury Management and Workers Compensation Act 1998. The assessment is to be conducted by an approved medical specialist (as defined in s 319 of the 1998 Act). That person is to give a certificate known as a Medical Assessment Certificate. Section 326 of the Act provides: 326 Status of medical assessments (1)An assessment certified in a medical assessment certificate pursuant to a medical assessment under this Part is conclusively presumed to be correct as to the following matters in any proceedings before a court or the Commission with which the certificate is concerned: (a)the degree of permanent impairment of the worker as a result of an injury, (b)whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, (c)the nature and extent of loss of hearing suffered by a worker, (d)whether impairment is permanent, (e)whether the degree of permanent impairment is fully ascertainable. (2)As to any other matter, the assessment certified is evidence (but not conclusive evidence) in any such proceedings. 133The only Medical Assessment Certificate in evidence in the present proceedings is the Certificate of Dr Bye of 23 July 2007. Section 326(1) requires the conclusion that degree of permanent impairment of the Plaintiff is 6% for the cervical spine, 4% for the right upper extremity and 2% for the left upper extremity. Although Dr Bye has assessed 5% permanent impairment for the lumbar spine I have concluded that the injury to the lumbar spine has not been shown to have been caused by the Plaintiff's employment with either Defendant. Section 326(1) does not require me to conclude that the lumbar spine injury was caused by his employment. The result is, therefore, that the degree of permanent impairment of the Plaintiff as a result of injuries caused by the Plaintiff's employment with the Second Defendant is less than 15%. The result is that no damages are assessable against the Second Defendant.

(2)The First Defendant 134Damages against the First Defendant are assessed under the Civil Liability Act 2002. 135Two things need to be borne in mind when looking at all of the heads of damages. The first is that, although the Plaintiff's main complaint concerns problems associated with his lumbar spine, including sciatic pain, I have found that there was no work related injury in relation to those problems. The second thing is that, although the Plaintiff did suffer work related injuries to the upper back, shoulder and neck area, he managed to work, on his own account, for 14 months, but probably for at least 16 months as I have found, in a job that required repeated bending and lifting as well as getting on and off the back of the delivery truck. Associated with those two matters is the fact that the event which brought that work to an end on 31 August 2007 was an event involving the lumbar spine problems and not the problems in the upper back area.

(a)Non-economic loss 136The Plaintiff claims to have had continuous pain in the shoulders and neck area ever since April 2005. He has had an operation on each of his shoulders but said that they were not improved as a result. He says he is restricted in movement because of the pain and discomfort in that area. As a result of these as well as his lower back problems, he cannot do the things that he did in recreational terms prior to 2005 such as going to the beach, going fishing or playing soccer with his son. He says that he is unable to do most work around the house. On some occasions he has to obtain his wife's assistance to dress him and even to assist him with shaving and in the shower. 137I accept that a good deal of what appears in doctors' reports is what the patient tells the doctor. Nevertheless, in circumstances where I do not find that the Plaintiff has been dishonest in recounting his injuries and disabilities, but merely unreliable in terms of dates and events, contemporaneous complaints to the doctors can provide some assistance in forming a view about the Plaintiff's disabilities and restrictions at any given time. I note that in Dr Patrick's report of 10 October 2005 he reported that the Plaintiff had difficulty driving distances because of increased pain in his shoulders and upper arm, that he had numbness in the left upper arm posterolaterally, that he had difficulty using the arms outstretched or overhead and that his recreational activities were curtailed. Dr Patrick thought his work injuries had significantly adversely affected his lifestyle with loss of enjoyment of life generally. 138In January 2010 Dr Bodel reported that the Plaintiff's main complaint was back pain and that prolonged sitting, bending or lifting aggravated the pain with pain radiating down both legs, the left worse than the right. For present purposes a good deal of that needs to be ignored. He also reported that the Plaintiff had pain and stiffness in both shoulders with pushing, pulling or lifting or use of the arms overhead aggravating the shoulder pain. He was having physiotherapy and hydrotherapy once a week. He could drive an automatic four-wheel drive motor vehicle with power steering but only for short distances without aggravating the pain or his shoulders. He could do no housework or garden or the lawns. Dr Bodel noted that he had restricted shoulder movement on both sides. 139These complaints are largely consistent with the Plaintiff's evidence. 140The Plaintiff saw Dr Thomas Clark, a consultant forensic psychiatrist, on 10 December 2009. Dr Clark diagnosed him as having major depression as part of a chronic depressed state known as a Dysthmia. He thought that stress of the Plaintiff's injuries was the relevant aetiological factor. Dr Clark said that he was not capable of work or of independent living and that amounted to 30% of the most extreme case under the Civil Liability Act. It is not clear to me if that assessment was in relation to the Plaintiff's psychiatric state only or represented an assessment of the whole of his disabilities. 141It is difficult to disentangle the problems caused by the injury to the lumbar spine in terms of his resulting psychiatric state. It can be accepted, however, that the problems with his upper back area must be significant because he has undergone two separate operations on this shoulders without, he says, any improvement. 142If I was to assess the whole of his condition for the purposes of s 16 Civil Liability Act my assessment would be that he would be 45% of the worst case. When the problems associated with his lumbar spine are put to one side my assessment is that he is 35% of the worst case. The principal reason for this difference is that until the Plaintiff had what he calls his breakdown on 31 August 2007 by virtue of his lumbar spine problems not only did the doctors consider that he was fit for work of a lighter kind than he was doing at Council but he had successfully worked on the milk run for at least 14 months. 143The matter is best demonstrated by what appears in the report of Dr Michael Garvan who saw the Plaintiff for the Second Defendant on 6 March 2008. He said: Mr Milich said his main problem is with his lower back. He complains of pain extending over the whole of the lower lumbar area and radiating down the front and back of both of his legs and involving his feet and all of his toes. He said that these symptoms are accompanied by pins and needles and numbness, particularly affecting the left lower limb. He said that these symptoms are aggravated with any attempt to bend or twist his back or to perform any forceful manual handling tasks. He said that he is barely able to walk on account of the lower limb symptoms. Regarding his shoulders, he said that he has pain, stiffness and weakness affecting both of his shoulders, but was unable to localise these symptoms accurately. 144 His damages for non-economic loss are, therefore, $182,000.

(b)Past wage loss 145The Plaintiff claims $520 net per week for 62 weeks from 20 April 2005 to 30 June 2006. The Plaintiff gives credit for approximately $800 for 5 days light duties work for which the Plaintiff received a wage. The amount claimed for this period is $31,440. Thereafter the Plaintiff claims from 1 September 2007 (when the work doing the milk run came to an end) an amount of $902 net per week to the present time. The figure of $902 appears to be related to the Plaintiff's earnings on the milk run, and this seems to be borne out by some of the ANZ bank statements for the period showing deposits of that amount into the Plaintiff's account. The total claim to 6 June 2011 for the Plaintiff's past wage loss is $207,781. If there is such a continuing loss a further figure needs to be inserted from 1 July 2011 to date. 146The First Defendant says that the Plaintiff's past economic loss to the date of filing its Schedule of Damages on 13 April 2011 was $70,000. No explanation is provided for how that figure is reached. The only submission made by the First Defendant was that an award of damages for economic loss would cease from the time the Plaintiff commenced working on the milk run because the reason the Plaintiff had to cease that work was the problem with his lumbar spine. That submission makes it more difficult to understand any basis for the figure of $70,000 because the wage loss to the time the Plaintiff commenced to work on the milk run was less than half of that figure, even on the Plaintiff's claim. 147There is no doubt that the occasion for the Plaintiff ceasing to work on the milk run was the problem associated with the Plaintiff's lumbar spine. He said that when he was walking from the Bank out to the car he had such pain in his legs that he could hardly move. 148In his report of 10 October 2005 Dr Patrick thought that although the Plaintiff was incapacitated for physical work involving heavy lifting/carrying, heavy use of the arms or significant use of the arms outstretched or overhead, he thought that the Plaintiff would be fit for suitable lighter work not involving such activities. In fact, the work the Plaintiff performed on the milk run for at least 14 months was work of a heavier description than Dr Patrick thought he could manage. 149In July 2010 Dr Machart thought that the Plaintiff was unfit to conduct physically demanding work and was not fit for pre-injury duties. However, that assessment included an acceptance of lumbar spine problems particularly because Dr Machart thought he had spondyloarthrosis and spinal canal stenosis in the lumbar spine. Dr Machart does not say that he is not fit for any work. 150In the first joint report Dr Bodel and Dr Machart agreed that the Plaintiff's prospects of returning to work were poor. They said he had only ever worked in labouring activities and his transferable skills were limited. When they came to consider the position having regard only to the upper back injuries they concluded that he was not fit for his pre-injury work activities but that he was fit for permanently modified duties purely from the point of view of his shoulder injuries. They said he must avoid strenuous and repetitive overhead tasks. 151The fact that the Plaintiff was able to work on the milk run doing moderately heavy bending and lifting work on a repetitive basis, and the fact that he only ceased that work for reasons associated with his lumbar spine, strongly points to the fact that the Plaintiff has been fit for work at least of that intensity since he began it in the middle of 2006. Further support is derived for this proposition from the fact that until 3 or 4 weeks before the Plaintiff ceased that work he was intending to buy the milk run in one form or another. 152In my opinion, the Plaintiff's past wage loss is confined to the figure of $31,440 being the period 20 April 2005 to 30 June 2006.

(c)Past loss of superannuation 153The amount of superannuation lost on the past wage loss is $31,440 x 11% = $3,458.40 - see Najdovski v Crnojlovic [2008] NSWCA 175; (2008) 72 NSWLR 728 at [53] and [82].

(d)Future loss of earnings 154Section 13 Civil Liability Act requires me to determine the Plaintiff's most likely future circumstances but for the injury. This is not an easy task in the present circumstances because the only evidence proffered by the Plaintiff was that if he had not had the problems with all of his symptoms he would have bought the milk run business. However, he only came to be working in that business because of the problems he experienced in his job with the Council. Nevertheless, it is not unreasonable to conclude that the Plaintiff was unlikely to have stayed working at the job he had with the Council. Ready Workforce hired him as a truck driver, and he thought that was what he would be doing at the Council. When the fact that he was earning more money working the milk run than he was paid at Council added to this, my conclusion is that the Plaintiff would have left the Council in any event and obtained a job such as the milk run. 155Further, since I have found that it was not his work-related injuries that prevented him from continuing with the milk run, what the Plaintiff would have done but for the injury is, subject to one matter, what he is still capable of doing. That one matter is this. Because there does not appear to have been any improvement in the Plaintiff's symptoms from his upper back problems, and on one view they may be thought to have deteriorated, and because the nature of that work is likely to exacerbate the injuries from time to time, I would be prepared to allow a cushion for his future years of $50,000. This approach is not precluded by s 13: Penrith City Council v Parks [2004] NSWCA 201; Gulic v O'Neill [2011] NSWCA 361 at [67]-[69].

(e)Past care 156The claim for past care is said to commence on 1 September 2007 and to continue to the present time. Section 15 CLA imposes severe restrictions on the ability to award damages under this head. Relevantly, s 13(2) provides: (2)No damages may be awarded to a claimant for gratuitous attendant care services unless the court is satisfied that: (a)there is (or was) a reasonable need for the services to be provided, and (b)the need has arisen (or arose) solely because of the injury to which the damages relate, and (c)the services would not be (or would not have been) provided to the claimant but for the injury. 157In Woolworths v Lawlor [2004] NSWCA 209 at [28]-[29] Beazley JA said in a case where the Plaintiff had been receiving gratuitous services prior to the injury, the need for additional services brought about by the injury arose solely because of the injury. If the Plaintiff could show, therefore, that the need for the gratuitous services had arisen solely because of the work-related injuries, and that they would not have been provided but for those injuries, the Plaintiff would be entitled to such damages provided subs (3) was also satisfied. 158The Plaintiff does not satisfy those requirements in subs (2) for these reasons. First, a very relevant period for consideration is the period prior to the first complaint of lumbar spine problems when his only injuries were the upper back injuries. No past care is claimed for that period. Secondly, although the Plaintiff had lumbar spine problems from May 2006, no care is claimed until September 2007. That is scarcely surprising because the Plaintiff managed to work the milk run for the whole of that period. Thirdly, the Joint Report of Drs Bodel and Machart of 24 January 2011 says: Dr Machart and I have agreed that significant past domestic care is required for home care as a consequence of his back pathology and surgery and to a lesser extent the shoulder surgery. 159No damages under this head are recoverable.

(f)Future care 160For the same reasons no damages are recoverable under this head.

(g)Out of pocket expenses 161The amount of these paid by the Second Defendant's insurer were agreed at $72,940 although the Council disputed that causation had been established. To some extent the Council is correct in that assertion. In that way that figure does not distinguish between what I have determined are work-related injuries and those that are not. The parties will need to agree a further figure based on my findings.

(h)Fox v Wood 162The parties will need to calculate a further figure based on my findings concerning the past wage loss.

Apportionment 163Notwithstanding that no damages are assessable against the Second Defendants 151Z Workers Compensation Act relevantly provides: 151Z Recovery against both employer and stranger (1)If the injury for which compensation is payable under this Act was caused under circumstances creating a liability in some person other than the worker's employer to pay damages in respect of the injury, the following provisions have effect: (a)the worker may take proceedings both against that person to recover damages and against any person liable to pay compensation under this Act for payment of that compensation, but is not entitled to retain both damages and compensation, ... (2)If, in respect of an injury to a worker for which compensation is payable under this Act: (a)the worker takes or is entitled to take proceedings independently of this Act to recover damages from a person other than the worker's employer, and (b)the worker also takes or is entitled to take proceedings independently of this Act to recover damages from that employer, the following provisions have effect: (c)the damages that may be recovered from the person by the worker in proceedings referred to in paragraph (a) are to be reduced by the amount by which the contribution which the person would (but for this Part) be entitled to recover from the employer as a joint tortfeasor or otherwise exceeds the amount of the contribution recoverable, 164Sub-section 2(c) provides a limitation on the damages that the Plaintiff is entitled to recover from the Council in circumstances where the Second Defendant would, but for Part 5 of the Act, have been liable to the Plaintiff. I have found the Second Defendant not to be liable because the Plaintiff could not demonstrate that his degree of permanent impairment was at least 15%. 165It is necessary therefore, in the light of the findings I have made at [95] - [107] above, to apportion liability between the Defendants. 166Both the Plaintiff and the Council placed reliance on TNT v Christie. In Christie, the Court of Appeal upheld the Trial Judge's apportionment as between the employer and the company to whom the Plaintiff was hired as to 25% against the employer and 75% against the company to whom the Plaintiff was hired. The injury in that case was caused by the malfunction of a pallet jack which was used to pick up cartons of beer and place them onto pallets. 167The Plaintiff submitted that the facts in the present case should be contrasted with that in Christie in that the present case was one concerning a defective system of work, that system of work being the Council's system. The evidence was that it was the Council's supervisor who was on the road observing the employees. Not all of those employees were labour hire workers. Many were Council employees. The Plaintiff submitted that the deficiencies in the system should have been observed by the Council's supervisor. These matters should result in no greater than 20% apportionment against the Second Defendant. 168The Council submitted that there was scant evidence about what instruction was given to the Plaintiff by the Second Defendant. There was no evidence, it was submitted, that the film shown to the Plaintiff and others by Hayley Lord of the Second Defendant was appropriate to the particular tasks that the Plaintiff was required to undertake whilst working with the Council. It was submitted that, in this way, the Second Defendant took no steps to ensure that the Plaintiff was not exposed to a risk of injury arising from the way in which his work was to be performed. The Council submitted that by reason of the defect being one in the system of work the Second Defendant was more liable than the employer in Christie. In such circumstances the apportionment against the Second Defendant should be no less than 25%. 169In assessing apportionment, whether between a plaintiff and a defendant for the purposes of contributory negligence or amongst defendants where the issue is contribution, the approach taken must be that delineated in Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529 at 532-533. The Court must make: [a] comparison both of culpability, i.e. of the degree of departure from the standard of care of the reasonable man ... and of the relative importance of the acts of the parties in causing the damage: ... . It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. 170In my opinion, the appropriate apportionment, particularly bearing in mind the judgment in Christie, is 25% against the Second Defendant and 75% against the Council. Were it not for the decision in Christie I should have been inclined to apportion a greater degree of responsibility to the Council for the following reasons. 171First, it was the Council's system of work that was responsible for the injury. Secondly, Mr Crowe assumed that persons in the position of the Plaintiff had received proper safety training by the Second Defendant without any basis for that assumption. Thirdly, he went on to conclude, wrongly in any event, that the Council had no responsibility to train those who were hired to the Council. Fourthly, I have accepted the Plaintiff's evidence that the Council did not in fact provide him with any specific safety instructions. Fifthly, when Mr Crowe was out on the road from time to time watching employees he observed employees not doing things safely up to four times per week. Although most of the failures were said to be minor, such frequency should have suggested a need for more rigorous instruction and training by the Council, and should perhaps have caused him to doubt the sufficiency of any training he thought the Second Defendant had provided to its employees. 172Nevertheless, when in Christie the employer was appropriately found to have a 25% responsibility in a case that concerned an intermittent fault in equipment owned and operated by the company to whom the plaintiff was hired, it seems difficult to hold in the present case that the employer should have less than a 25% responsibility. The judgments in Christie emphasised the extent of the employer's duty, particularly where it chose to delegate its responsibility to the company to whom it was hiring out its employees - see at [61]-[69] and [175]-[177]. The position in the present case is not appreciably different. Indeed in Christie the employer attended weekly at the premises where its employees worked - there was no evidence in the present case of any attendance or concern of the Second Defendant once the Plaintiff had been hired out to the Council. 173The fault on the Second Defendant's part was a failure properly to train and instruct its workers how to carry out lifting and physical work safely in circumstances where the Second Defendant was aware of the work that was to be carried out by its employees with the Council. Certainly, the defective system of work was the Council's (and the defective system included the Council's failure properly to train the body-hire employees) but the Second Defendant had a distinct responsibility to train and instruct its employees in carrying out the work safely that it knew they would be performing. If it had enquired of its employees or even, perhaps Mr Crowe, it would have ascertained that the Council gave them little or no training and instruction in safety. 174Accordingly, the damages which the Plaintiff is entitled to recover against the Council will be reduced by 25% attributable to the share of responsibility of the Second Defendant for his injuries. Cross-Claim 175The Second Defendant claims indemnity from the Council pursuant to S 151Z Workers Compensation Act 1987, and also contribution or indemnity pursuant to s 5 Law Reform (Miscellaneous Provisions) Act 1946. The latter claim can now be disregarded since the Second Defendant has no liability by reason of s 151H. 176Although I have found the Second Defendant breached its duty of care to the Plaintiff, since damages were not payable for the breach the Second Defendant has no liability. The only party liable is the Council. In those circumstances s 151Z (1)(d) operates to provide an indemnity by the Council to the Second Defendant. However, the indemnity is limited to the amount of the damages "in respect of the injury". It is not clear, but it seems likely, that the compensation paid by the Second Defendant included treatment and other costs associated with the Plaintiff's lumbar spine problems. The list of payments made by the Second Defendant' insurer does not clearly identify the treatment for which payment was made on any occasion. 177It will be necessary for the parties to identify the precise amounts that properly form part of the indemnity to which the Second Defendant is entitled.

Conclusion 178The parties should bring in Short Minutes to reflect these reasons. The Short Minutes should include a judgment for the Plaintiff against the First Defendant, a judgment for the Second Defendant on the Plaintiff's claim, and a judgment for the Second Defendant against the First Defendant. 179I will hear the parties on the issue of 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: 23 April 2012

At a glance

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Judgment (30 paragraphs)

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Cases Cited (12)

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