Monahan v Bellevarde Constructions Pty Ltd & Ors

te of NSW v Moss [2000] NSWCA 133, (2000) 54 NSWLR 536 Stevens v Brodribb Sawmilling Company Pty Ltd (1986) 160 CLR 16; [1986] HCA 1 Uniting Church in Australia Property Trust (NSW) v Miller [2015] NSWCA 320 Vairy v Wyong Shire Council (2005) 223 CLR 442; [2005] HCA 62 Wynbergen v Hoyts Corporation Limited (1997) 72 ALJR 65 Category: Principal judgment Parties: Alan Monahan (Plaintiff) Bellevarde Constructions Pty Ltd (First defendant/second cross-claimant) L'Officina by Vincenzo Australia Pty Ltd (Second defendant/first cross-claimant) Allianz Australia Limited (Third defendant) Representation: Counsel: Mr R Goodridge (Plaintiff) Mr B Hull (First defendant/second cross-claimant) Mr R Gambi (Second and third defendants/first cross-claimant)

Solicitors: Firths (Plaintiff) Holman Webb (First defendant/Second cross-claimant) Moray & Agnew (Second and third defendants/first cross-claimant) File Number(s): 2020/119363 Publication restriction: None

Table of Contents Nature of case [1] - [2] Parties and relevant entities [3] - [4] Claims, defences and cross claims [5] - [15] Facts not in dispute [16] - [19] Disputed facts to be determined [20] Issues to be determined [21] Evidence overview and reliability of testimony [22] - [133] Documentary evidence [23] - [27] Evidence of the plaintiff [28] - [46] Evidence of Mr Rolfe [47] - [51] Evidence of Mr Chui [52] - [57] Evidence of Mr Lea [58] - [68] Evidence of Mr Petrie [69] - [75] Evidence of Mr Vincenzo Botte [76] - [93] Evidence of Mr Luciano Botte [94] - [109] Potential witnesses not called to give evidence [110] - [122] Expert ergonomic safety report of Mr Adams [123] - [132] Issue 1 - Findings on relevant factual matters [134] - [157] Issue 2 - The relevant risk of harm [158] - [159] Issue 3 - Duty of care, scope and content [160] - [163] Issue 4 - Whether the defendants were negligent [164] - [179] Issue 5 - Causation of harm [180] - [184] Issue 6 - Alleged contributory negligence [185] - [198] Issue 7 - Section 151Z(2) of the WC Act [199] - [215] Issue 8 - Cross-claims and proportionate liability [216] - [227] Issue 9 - Assessment of damages [228] - [292] Plaintiff's pre-injury circumstances [229] Plaintiff's most likely circumstances but for his injury [230] - [231] Injuries and treatment [232] Medical and allied reviews [233] - [234] Reliability of medical opinions [235] - [256] Disabilities that remain [257] - [258] Non-economic loss [260] Past economic loss [261] - [264] Past loss of employer funded superannuation benefits [265] Future economic loss [266] - [276] Future loss of employer funded superannuation benefits [277] Past domestic assistance [278] Future domestic assistance [279] - [283] Future treatment expenses [284] - [290] Past out-of-pocket expenses [291] Summary of damages assessment [292] Disposition [293] - [294] Monetary jurisdiction of the Court [295] Costs [296] Orders [297]

Nature of case

1. On the morning of Saturday 17 November 2018, the plaintiff, Mr Alan Monahan, a tradesman carpenter, was working on a residential building site located at the corner of Esther and Raper Streets, Surry Hills NSW ("the site"). He responded to a call from another workman employed by a different employer to assist in the manual lifting, and moving of a heavy metal clad door weighing approximately 200kgs (known to all concerned as Door 115), to load it onto the back of a tabletop truck parked outside the premises.
2. In those events the plaintiff sustained a debilitating musculo-ligamentous straining injury to his lumbar spine. This case concerns the compensation consequences of that incident. He brings these proceedings claiming damages for alleged negligence against three defendants. The proceedings are governed by the provisions of the Civil Liability Act 2002 (NSW) ("CL Act").

Parties and relevant entities

1. The relationship of the parties and the relevant entities is as follows: 1. The plaintiff is now aged 33 years. At the date of his injury, he was aged 30 years. At that time, he was employed by Taylor Carpentry Holdings Pty Limited ("Taylor") through a labour hire arrangement. Taylor is not a party to these proceedings. At the time of the incident the plaintiff was working in Sydney on a sponsored working visa. Due to his inability to continue working, he has been required to resume his former residence in the Republic of Ireland; 2. The first defendant, Bellevarde Constructions Pty Ltd ("Bellevarde"), a building contractor, was the head contractor in possession of the site and co-ordinated all building work on the site. Bellevarde had subcontracted Taylor to carry out certain carpentry services at the site. In November 2018, Taylor assigned the plaintiff, and another employee, to do carpentry work on the site; 3. The second defendant, L'Officina By Vincenzo Australia Pty Ltd, the trading name of ITC Eco Pty Ltd (which has been deregistered since 27 September 2019), had a subcontract arrangement with Bellevarde for the manufacture, supply, delivery, and installation, of specialised custom-made doors and windows for the site. L'Officina has acquired the assets and liabilities of that deregistered company. For convenience, in these reasons, that group of entities will be referred to as "L'Officina"; 4. The third defendant, Allianz Australia Limited ("Allianz") is the insurer for the former entity ITC Eco Pty Ltd, the deregistered company.
2. The second and third defendants have common representation in these proceedings pursuant to an agreement having the effect that, in the event L'Officina is found liable to the plaintiff for damages, as the responsible insurer, Allianz will meet that liability.

Claims, defences and cross-claims

1. The plaintiff's claim and the defendants' defences are reviewed below.

Plaintiff's statement of claim

1. The plaintiff's statement of claim filed on 21 April 2020 alleged negligence on the part of the defendants Bellevarde, L'Officina, and the deregistered company insured by Allianz: Exhibit "A", pp 1 - 11.

Bellevarde's defence

1. Bellevarde's defence was filed on 13 July 2020. In that defence, Bellevarde denied the alleged negligence, and in the alternative, claimed that any damages awardable to the plaintiff should be reduced on account of alleged contributory negligence on the part of the plaintiff, and the alleged negligence of the plaintiff's employer pursuant to s 151Z of the Workers' Compensation Act 1987 (NSW) ("WC Act"): Exhibit "A", pp 16 - 20.

L'Officina's defence

1. L'Officina's defence was filed on 16 September 2020. In that defence, L'Officina denied certain background factual matters, denied the alleged negligence, and alleged negligence on the part of the plaintiff's employer pursuant to s 151Z of the WC Act: Exhibit "A", pp 21 - 24.

Allianz's defence

1. Allianz's defence was filed on 16 September 2020. In that defence, Allianz initially raised a procedural defence which is no longer relevant. It has since admitted it is the insurer for the now deregistered company ITC Eco Pty Ltd: Exhibit "A", pp 25 - 27.

Defence as to the jurisdictional limit of the Court

1. The defences filed by both Bellevarde and L'Officina each included objections to the Court's jurisdiction being exercised for an amount that exceeds the $750,000 jurisdictional limit of the Court for such cases: s 51(2)(b) of the District Court Act 1973 (NSW). Those defences were expressed in different terms. Bellevarde claimed that defence applied as at the time of the commencement of the plaintiff's action: Exhibit "A", p 19. In contrast, L'Officina objected to "the entry of any judgment, verdict or award against it in excess of the jurisdictional limit" of the Court: Exhibit "Q", p 23.

Cross-claims and defences to cross-claims

1. The first and second defendants have exchanged cross-claims, as follows.

First cross-claim: L'Officina v Bellevarde and defence to first cross-claim

1. On 23 March 2021, pursuant to s 5 of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW), L'Officina filed the first cross-claim against Bellevarde, ambiguously claiming indemnity "and/or" contribution in respect of any liability it may have to the plaintiff: Exhibit "A", pp 28 - 35.

Bellevarde's defence to L'Officina's cross-claim

1. On 13 July 2021, Bellevarde filed its defence to L'Officina's first cross-claim and denied any such liability to L'Officina: Exhibit "A", pp 36 - 42.

Second cross-claim: Bellevarde v L'Officina

1. On 13 July 2021, pursuant to s 5 of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW), Bellevarde filed a second cross-claim against L'Officina, also ambiguously claiming indemnity "and/or" contribution in respect of any liability it may have to the plaintiff: Exhibit "A", pp 41 - 48.

L'Officina's defence to Bellevarde's cross-claim

1. On 5 November 2021, L'Officina filed its defence to Bellevarde's second cross-claim and denied any liability to Bellevarde: Exhibit "A", pp 49 - 52.

Facts not in dispute

1. At the time of his injury, the plaintiff was earning $1142.90 net per week as a tradesman carpenter in the employ of Taylor. The site at which the plaintiff was working at that time was undergoing substantial renovations for conversion into a private residence.
2. Immediately before his injury, the plaintiff had temporarily interrupted his carpentry work in order to respond to a request to help several other persons on site to manually lift Door 115, a large metal clad door weighing approximately 200kgs, onto the back of a tabletop truck without the assistance of any mechanical lifting devices.
3. During that lift the plaintiff suffered a painful musculo-ligamentous straining injury to his lumbar spine. As a direct consequence of that injury, he has incurred considerable treatment expenses in the total amount of $25,429.95.
4. At that time, the head contractor on the site, Bellevarde, employed Mr Sebastian Rolfe and Mr Adam Chui as tradesmen carpenters. Those persons also participated in the lifting and the loading of Door 115 which led to the plaintiff's injury.

Disputed facts to be determined

1. The essential factual matters in dispute to be determined in these proceedings concern events as to who had requested the plaintiff to assist in the lifting of Door 115; for what purpose and for whose benefit was that task undertaken; who participated in the lifting of the door and loading it onto the truck that was parked outside the premises; and who owned that truck.

Issues to be determined

1. My review of the pleadings, the evidence and the submissions of the parties indicates that the issues to be determined in the proceedings may be conveniently identified as follows: 1. Findings on disputed matters of fact and related matters as identified at paragraph [20] above. My findings on those matters appear between paragraphs [134] to [157] of these reasons; 2. Identification of the relevant risk of harm. My findings on this issue appear between paragraphs [158] to [159] of these reasons; 3. The scope and content of the duty of care owed to the plaintiff by the respective defendants: My findings on those matters appear between paragraphs [160] to [163] of these reasons; 4. Whether the defendants shortly described as Bellevarde and L'Officina were negligent. My findings on this issue appear between paragraphs [164] to [179] of these reasons; 5. Whether the plaintiff's injuries were caused by the negligence of the defendants. My findings on this issue appear between paragraphs [180] to [184] of these reasons; 6. Whether there was contributory negligence on the part of the plaintiff, and if so, to what extent. My findings on this issue appear between paragraphs [185] to [198] of these reasons; 7. Whether, pursuant to s 151Z of the Workers' Compensation Act 1987 (NSW), any entitlement of the plaintiff to damages should be reduced on account of an alleged breach of duty of care on the part of Taylor, the plaintiff's employer, and if so, by what proportion. My findings on this issue appear between paragraphs [199] to [215] of these reasons; 8. The apportionment of liability as between the respective defendants. My findings on this issue appear between paragraphs [216] to [227] of these reasons; 9. The assessment of the plaintiff's entitlement to damages. My findings on those matters appear between paragraphs [228] to [292] of these reasons;

Evidence overview and reliability of testimony

1. The exhibits tendered in the proceedings were in the series "A" to "J", and included a Court Book which incorporated exhibited material in common: Exhibit "A", pp 1 - 462. Those materials will be referred to in these reasons where it becomes relevant to do so. In the paragraphs that now follow, the documentary evidence on factual matters and the oral testimony is reviewed and summarised.

Summary of documentary evidence of a factual nature

1. The categories of documentary evidence comprised: 1. The contractual document that governed the respective rights and responsibilities of L'Officina and Bellevarde; 2. Relevant photographs, plans and invoices; 3. Relevant email correspondence.

Contractual documents, plans and drawings

1. L'Officina's original scope of works concerning the windows and doors for the site totalled over $300,000 including GST: Exhibit "A", p 172. The component representing Door 115 was $14,795 including GST: Exhibit "A", p 213. A condition of the works was that the supplier of the doors and windows retained property in the goods until full and final payments were received: Exhibit "A", p 175; Clause 8 of the Conditions of Sale.
2. The contractual document that governed the relationship between Bellevarde and L'Officina was dated 8 May 2018: Exhibit "A", pp 354 - 358. It was a term of the agreement between Bellevarde and L'Officina that Bellevarde's subcontractors (L'Officina) would provide all materials and handling equipment for the execution of their works, including for horizontal movement, transport, unloading and hoisting: Exhibit "A", p 358.

Photographs, plans, invoices

1. A number of plans, photographs and invoices were tendered (Exhibit "A", pp 168 - 235). They are of limited significance to the issues to be decided in these proceedings. If anything, they simply provide some background perspective. Insofar as they have relevance, reference will be made to them.

Email correspondence

1. After the plaintiff's injury, on 20 November 2018, L'Officina and Bellevarde commenced email exchanges over the state of the works and in respect of delayed completion: Exhibit "A", pp 201 - 206. Whilst those emails, and the interpretation of them occupied some time at the hearing, they have very limited bearing on the issues in the case. To the extent they contain material of relevance to the issues to be determined, they will be referenced in these reasons where it becomes appropriate to do so.

Evidence of the plaintiff

1. The plaintiff was born in the Republic of Ireland. Following the completion of his secondary education at age 17 years, he went on to complete a three-and-a-half year apprenticeship as a carpenter. Between 2011 and 2013 he worked as a carpenter in Canada. On his return to the Republic of Ireland, between 2013 and 2017, due to a shortage of work in his trade, he undertook a variety of other jobs. In September 2017, he and his fiancée arrived in Australia on an employer-sponsored working holiday visa.
2. In October 2017, the plaintiff commenced full-time employment as a carpenter with Taylor Holdings Pty Ltd. He was in the employment of Taylor by an arrangement with a labour hire company, AustCorp Consulting Pty Ltd, to provide bespoke carpentry services when, on 17 November 2018, he sustained the injury which is the subject of these proceedings.
3. At the time of his injury, it was the plaintiff's intention that he and his fiancée remain working in Australia permanently, and for him to continue to work as a carpenter. He was working a 40-hour week, with occasional additional work on Saturdays. He had carried out some work on the site in question over the course of several months before he was injured.
4. On 17 November 2018, the plaintiff and his co-worker Mr Morgan, who was another employee of Taylor, were all on site independently carrying out the carpentry duties that had been assigned to them. They did not require supervision for that work. The plaintiff said that Bellevarde's employee, Mr Rolfe, had approached them and had said that he needed a hand to lift Door 115 onto the truck which was located at the premises. He understood the door to have a timber frame construction with some hollow sections and steel cladding.
5. The plaintiff said that he and Mr Morgan, who were located about 20 or 30 steps away when that request was made, co-operatively responded to that request, and helped with lifting Door 115 from its horizontal position resting against the brickwork of a wall where it had been resting on two timbers to keep it off the ground in a position about a metre and a half from a nearby entry door jamb. The plaintiff said that Mr Rolfe had initiated the process by saying that "we need to move this door": T30.23; T31.48; T54.47; T55.2. At that time no reason was given for moving the door.

Evidence of Mr Sebastian Rolfe

1. Mr Sebastian Rolfe presently works as a self-employed builder. At the time of the plaintiff's injury he was employed by Bellevarde to work on the site as a carpenter. His memory of the events had faded somewhat due to the passage of time.
2. Mr Rolfe recalled there was a need to move and lift the door in question onto the back of a truck but he was not sure as to why this was required. He could not recall telling the plaintiff to assist to move the door on the day in question, but he conceded it was possible he may have done so. His understanding, albeit incorrect, was that the door needed to be taken back to the manufacturer, L'Officina, in order that it be worked on or altered, but he was uncertain as to the details
3. Mr Rolfe said that there were a few people on site at the time, namely Mr Chui, Mr Morgan and the plaintiff who assisted him to move the door. With the aid of copies of photographs within Exhibit "A' to refresh his memory, he recalled that the door was on site wrapped in a blue protective blanket and that it was lifted into the tabletop truck whilst still wrapped in that blanket.
4. Mr Rolfe said he recalled there were two other men who also came onto the site who were also involved in the lifting operation, one being the driver of the truck, later identified as Mr Dimitri Espimaris, and the other was, according to his understanding, also from L'Officina. His understanding was that they were there to take the door away for reasons not entirely clear to him. He said the driver of the truck and that other man assisted in the lifting and loading of the door onto the truck. He did not see if the truck had driven away with the door on its tray.
5. The evidence of Mr Rolfe, whilst limited on some matters of detail, does not serve to materially contradict the plaintiff's account of the events in question. Some of his evidence was expressed as being based on assumptions.

Evidence of Mr Adam Chui

1. Mr Adam Chui is a tradesman carpenter who was employed by Bellevarde at the time of the lifting incident. He is still in that employment. He also took part in the lifting operation on the day in question.
2. Mr Chui did not know who had initially asked him to assist with the lifting of the door. He said he had just seen his colleagues moving the door and he decided to help because the task of moving the door, from its position leaning against the wall near the front of the site office and onto the truck, looked awkward. He described the door as being very heavy. He identified those participating in the lift to be himself, Mr Rolfe, Mr Morgan, the plaintiff, and two other men wearing high visibility garments. He believed the latter two men came from the second defendant company.
3. Mr Chui had assumed those men were on site to pick up the door and take it away. He could not recall who was the organiser of the initial part of the lifting operation. However, he agreed with the proposition that Mr Rolfe was the person co-ordinating the lifting of the door onto the back of the flatbed truck and he was following Mr Rolfe's instructions on how to get the door onto the truck: T85.20 - T85.35. He identified the photograph of the truck shown in Exhibit "A" as showing a truck that was similar to the one onto which they had loaded the door in question. He agreed it was a type of flatbed truck commonly seen in the streets of Sydney and commonly seen either delivering goods to building sites or taking material away from such sites.
4. Mr Chui did not know exactly why the door was leaving the site on the day in question. He understood it was something to do with the need to fit the door into position with pivots. He estimated that he had helped to move the door from its point of rest to its position on the truck over about 5 metres.
5. Mr Chui could not recall when the door, and others like it, had been delivered to the site. He could not recall when the door was installed into its final position.
6. To the extent of his recollection, I considered Mr Chui to be a credible and reliable witness.

Evidence of Mr Ben Lea

1. Mr Ben Lea is employed by Bellevarde as a project manager. At the time of the plaintiff's injury he was the site manager responsible for co-ordinating the work of all Bellevarde employees and other trades and sub-contractors on the site. He identified another Bellevarde employee, Mr Julian Petrie as the site administrator for that particular job.
2. Mr Lea described a history of frustration with the delayed work by L'Officina. He referred to a meeting between the project architect, and principals from Bellevarde and L'Officina, ending in a resolution which enabled the parties to move forward in their dealings with each other.
3. Mr Lea identified some relevant emails that were exchanged between the first and second defendants concerning the door in question and aspects of the timetabling and sequence of the works, including why the door in question could not be installed as had originally been planned. This was because a strengthened concrete base plate or slab was required to be installed to take the pivoted weight of the door. He said that the required reinforced concrete base plate correction was installed on either the Monday or the Tuesday that followed the plaintiff's accident.
4. Mr Lea described the doors as extremely expensive: $14,430 plus GST. He also described the site as not overly large, without areas for storage of large components. He identified the driver shown in the copy photograph in Exhibit "A" as an employee of the second defendant. He said he was familiar with the driver, and Mr Vincenzo Botte, and the truck shown in the photograph, from the progress of other projects before and after the incident in question.
5. Mr Lea said that Bellevarde had no reason to remove the door from the site. He said that the removal of such a significant item, especially having regard to its cost, required his approval, including by telephone, if he was not on site, and that did not happen. He said that Bellevarde did not have storage facilities for a component such as the door in question, and did not have a truck for moving it nor did it have the knowhow as to how the door should be treated. He said that even after it had been delivered onto the site, it remained the property of L'Officina until it was physically installed.
6. Mr Lea said that if he was not on site then Mr Petrie would have been the acting site manager. He described a history of considerable frustration on the part of Bellevarde as to the project being delayed by slow progress and the timing of L'Officina's work.

Evidence of Mr Julian Petrie

1. Mr Julian Petrie is presently employed by Bellevarde as a site manager. At the time of the plaintiff's injury he was employed by Bellevarde as the site administrator for the works at the Esther Street premises from about August 2018.
2. Mr Petrie was present on that site on Friday 16 November 2018 when the door in question was delivered by L'Officina's truck. He recalled the door being brought into the premises from the truck and then stored in the hallway to await installation that was planned but which did not proceed as planned.
3. Mr Petrie identified and explained the context of some email exchanges that subsequently took place between Bellevarde and L'Officina: T117 - T119. He recalled there was an issue with the adequacy of the concrete base slab that was to support the door and that there was an associated need for Bellevarde to undertake some remedial work to replace that concrete slab.
4. Mr Petrie said that he did not see the door in question being removed from the premises on the following Saturday, 17 November. He said that he could not recall asking anyone to remove the door in question from the site. He was of the opinion that if anyone was to have removed the door it would have been the party that had ownership of it, namely L'Officina. He added the speculative suggestion that an alignment issue or a patina adjustment could be a reason for removing the door from the site. He stated that in Sydney, Bellevarde did not have a tabletop truck of the kind identified in the photographs within Exhibit "A"'.
5. Mr Petrie stated that he could not say whether any door had been taken away by L'Officina and then returned to the site. He said that he was aware that L'Officina installers were on site in November 2018, but he could not recall the details with certainty. He explained the context was that there was a degree of frustration within Bellevarde concerning L'Officina's supply and installation program, and an apparent attempt by L'Officina to deflect responsibility for the delay so caused: T122. This was reflected in the disputatious tone of an email from L'Officina's employee Mr Leonardo Malucci, who sent an email to Mr Petrie on 20 November 2018, in which L'Officina sought to deflect responsibilities for the delayed works: Exhibit "A", p 201.
6. Mr Petrie declined to speculate on the possibility that someone other than L'Officina could have removed the door in question. He stated that Bellevarde would not have been able to remove the door. He recalled the door being on the site and installed at some point on or after 19 November 2018. He confirmed that over the course of the works, L'Officina had various employees on site at various times, including up to 20 November 2018.

Evidence of Mr Vincenzo Botte

1. Mr Vincenzo Botte presented as a confident witness but he had no personal knowledge of the circumstances surrounding the plaintiff's injury.
2. He is the designer and creator of the special patina finishes for which the entity L'Officina by Vincenzo is known. He had crafted the specialised finish on Door 115. In his evidence he described it as steel framed, with internal plywood components and encased in zinc sheeting that was polished and then patinated in an antique blackened finish.
3. His estimate of the weight of the door was about 150kgs, which was significantly less than the estimate of 200kgs, more reliably identified in an email from L'Officina's employee, Mr Leonardo Malucci, who described it as weighing around 200kgs: Exhibit "A", p 201. He stated that once a door of that kind was fabricated, it could not be adjusted for size and then rectified with a restored finish. Instead, it would have to have been remade by a process that would take two men working for up to a month.
4. His evidence, whilst explanatory of some matters of background, was of limited relevance to the substantive factual issues to be determined in this case. This is so especially as he was not present at the time the plaintiff was injured, and in view of his concession that, contrary to his understanding, it was possible that the door was moved as a result of decisions made on site by persons working for L'Officina.
5. He acknowledged that there were delays on the part of L'Officina in fulfilling its work schedule for the delivery and installation of its fabricated components, including Door 115. The delays were the subject of some tensions between Bellevarde and L'Officina, as was described in the oral evidence and in the email correspondence that had passed between those parties.
6. That correspondence, which related to disputed contentions as to the cause or fault for delay in the progress of the works, has been incorporated into Exhibit "A". In my view that correspondence is peripheral to the substantive issues in this case, and only requires brief reference in a review of the documentary evidence.
7. This so where the substantive factual questions are: who was on the site on the day the plaintiff was injured; in whose interests were those persons there; and what were they doing, insofar as can be reasonably inferred from the evidence.

Evidence of Mr Luciano Botte

1. Mr Luciano Botte, the brother of Mr Vincenzo Botte, is the operations manager for L'Officina by Vincenzo Pty Ltd. He also gave his evidence in a confident manner to the effect of refuting factual elements, on which the plaintiff's case was based. However, like his brother Vincenzo, he had no personal knowledge of the circumstances of the plaintiff's injury.
2. In November 2018, he was also the operations manager for several related entities: T161.20. He described the dynamics of the operation to be that his brother Vincenzo was the creative member of the team, and he was the one who took care of the operations side of the business.
3. He said he spent roughly 50 per cent of his time in the company's workshops, of which there were two, one being for fabrication and the other for painting and finishing. The balance of his time was spent on various job sites. At the time of the plaintiff's injury, L'Officina had five such sites in progress: T162.21 - T162.40.
4. In relation to the site operations for Door 115, he said that it was his understanding that the door had been successfully delivered and safely stored on site. His evidence as to the entity responsible for the door from the time of delivery differed from the evidence given by his brother. He said that L'Officina was not responsible for the door any further "until it gets installed, I guess" (T168.7), but he added that if the door had to be moved on site and he was there, he would have taken responsibility for that: T168.18.
5. He identified his understanding of the extent of L'Officina's on site staff on 17 November 2018 as being four men, namely Mr Espimaris who was L'Officina's truck driver, and L'Officina's installation contractor, Mr Acuri, and Mr Acuri's two employees, Mateo and Piero, the latter three being persons who spoke Italian.
6. On several occasions in his evidence, properly, he made it clear that aspects of his evidence were based on assumptions as he was not on site for the either the delivery of Door 115, nor for any subsequent attempts at installation, or any activity that involved subsequent movement of that door, or its final delayed installation.
7. He was cross-examined on the terms of the contract for works between L'Officina and Bellevarde, and stated that he had only read part of the contract (T168.36) and said he knew L'Officina's contractual exclusions included no lifting, but he agreed that his company was responsible for installation: T168.42 - T169.17.

Potential witnesses not called to give evidence

1. A number of persons were named in the evidence but they were not called as witnesses, namely, Mr Leonardo Malucci, Mr Dimitri (Jimmy) Espimaris, and Mr Pasquale Acuri. Other persons were also identified according to job classifications, but without surnames, namely, Piero and Mateo, who were Mr Acuri's installation employees for the L'Officina work, and a man named Keith, another of L'Officina's installers.
2. The plaintiff seeks inferences be drawn against L'Officina concerning the absence of evidence from those persons in circumstances where there is no evidence as to any inquiries that might explain the absence of any evidence from them: Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8.
3. This raises a question as to what evidence those persons might have been able to give concerning relevant matters of fact.
4. Keith was not present on site at the time of the plaintiff's injury. It appears that he took part in the final installation of Door 115 some days later. It therefore appears that unlike the other persons named above, he could not have given evidence on any matter of relevance to the proceedings.
5. Mr Rolfe identified two men (apart from himself, the plaintiff, Mr Chui and Mr Morgan) who were also involved in moving the door, namely the truck driver and someone else. He assumed these additional persons were from L'Officina (T68.45 - T69.28), although he could not identify them by name. In that regard, he had assumed the driver of the truck was employed by the manufacturer of the door: T75.34,
6. Mr Malucci was an employee of L'Officina. He and Mr Petrie, who was employed by Bellevarde, had exchanged contentious emails about problematic aspects of the works. I infer from the terms of Mr Malucci's email to Mr Petrie, that Mr Malucci was on site on the day in question. This is because his email employed the expression "we", which in the context, I interpret as referring to himself and to at least another L'Officina employee being on the site.
7. Mr Vincenzo Botte confirmed that if Door 115 needed to be moved, Mr Malucci would have been involved in that decision, and since the door would at that time have remained the property of L'Officina and he was on site, it is highly likely that he would have been involved in the process of moving the door, including loading it onto the tabletop truck. Mr Botte confirmed that Mr Malucci had returned to Italy some time ago but that does not necessarily mean his evidence was not available or unobtainable: T149 - T150.

Expert ergonomic safety report of Mr Adams

1. The plaintiff relied upon an expert opinion in the form of an ergonomic safety analysis report dated 31 August 2020 prepared at the request of his solicitor by Mr Neil Adams. His report included compendious annexures: Exhibit "A", pp 112 - 167.
2. Initially, on behalf of L'Officina, a series of objections were taken to various parts of that report: MFI "2". In essence, those objections raised questions of hearsay and unproven assumptions. Ultimately, those objections were resolved on the basis that if the evidence does not sufficiently coincide with the assumptions made by Mr Adams, this would undermine the utility and the value of his opinion: T187.34: Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58, at [9].
3. In effect, Mr Adams was of the opinion it was foreseeable that a heavy manual lifting operation of the kind in which the plaintiff was called upon to assist, carried with it the likelihood or risk of musculo-skeletal injury such that the implementation of preventive safety precautions were warranted.
4. Mr Adams described the lifting and loading task in which the plaintiff was engaged as physically demanding. He did not see or inspect the site for the purpose of his report. He has not examined the door. He relied upon the plaintiff's descriptions of the incident as was provided by him in a telephone interview, against the background of the material with which he had been briefed by the solicitor for the plaintiff.
5. Mr Adams approached his consideration and analysis from the perspective of ergonomics and safety. His understanding was that Door 115 could not be fitted to the intended place of its installation because the intended installation site had not been appropriately prepared. He understood that the intention was to remove the door from the site by truck, hence the lifting operation in which the plaintiff became involved.
6. Mr Adams obtained the following information from the plaintiff: "2.1.6 Mr Monahan and Morgan accompanied Sebastian to the ground-floor room in which the door that had to be removed from the site (the door) was leaning in an upright orientation against one of the interior walls. Also present in that room at that time were at least three and possibly four other men. One of those men was another contractor who Mr Monahan knew as Adam (Mr Monahan does not know who employed Adam). The other men were apparently employees of the supplier. 2.1.7 With Sebastian overseeing the process but not participating physically, five men (including Mr Monahan) worked together to firstly manoeuvre the door into a position whereby its longer sides were horizontal and parallel to the floor and its shorter sides were vertical and parallel to the walls. Those men then lifted it in that orientation and carried it out into the street, where a small truck with an open fiat-bed load tray was parked. The door, still in that orientation, was then lowered to the footpath beside that truck, with some of the men (again including Mr Monahan) continuing to hold it so that it remained balanced, with one of its longer sides only in contact with the footpath. Two of the employees of the supplier then climbed onto the truck. At this time, Mr Monahan was standing adjacent to the door, approximately in a central position along its length, and with the door between him and the truck. Two other men (one of whom was Morgan while the other was Adam) were also standing on the footpath close to, and at opposite ends of, the door. 2.1.8 There was very little, if any, discussion between the workers, and no instructions were issued nor advice verbalised concerning the next stage of the process (either by Sebastian or anyone else). Nevertheless, Mr Monahan understood that he was expected to lift from the centre of the door as Morgan and Adam lifted from each end, such that between them they would raise the door sufficiently high to allow it to be grasped by the two men who had climbed onto the truck, and then presumably slid by those men into a suitable orientation and position on the load tray and secured for transportation purposes. 2.1.9 Accordingly, Mr Monahan bent and reached down towards the side of the door that was resting on the footpath with both of his hands, in order that he might grasp and lift it from its lower longer side. Either Adam or Morgan, and perhaps both of them, lifted the door sufficiently to allow Mr Monahan to push both of his hands forwards and under that lower edge. When all the three lifters on the footpath (ie. Mr Monahan, Morgan, and Adam) were ready, Mr Monahan heard Sebastian co-ordinate the lift by saying words to the effect of "One, two, three When he heard the word "three ", Mr Monahan began to exert a very high level of two-handed lifting force on the door. As a result of that force in combination with the lifting forces that were clearly being exerted by Morgan and Adam respectively, the door began to move upwards in the intended direction. Mr Monahan remembers that he had lifted his share of the load to approximately level with his waist, and was also extending his arms slightly out in front of his body in order to move the door nearer to the truck (and therefore further from his body), when he suddenly felt a sensation of strong pain in his lower back. At approximately the same time, the door was also grasped by the men on the truck. Mr Monahan continued to contribute some lifting force, despite his pain, until it was no longer necessary for him to do so, because the door was effectively on the truck and could be lowered and slid into its travelling position by the supplier's employees. 2.1.10 After the employees of the supplier had positioned and secured the door to their satisfaction, they left the site. Mr Monahan had a conversation with Morgan, during which he indicated that he had hurt his back. Mr Monahan then rested for some time. His initial discomfort seemed to resolve somewhat, which led him to infer that any injury he might have sustained was relatively minor and would resolve fully in due course. He therefore resumed working. He continued to work over the ensuing days and weeks, despite not being free of pain in his back, and on 30 November 2018 he began seeing a chiropractor who he hoped would provide him with relief from that discomfort. It was also at about that time that he reported the incident to Mr Taylor." [Exhibit "A", pp 115 - 116]

Issue 1 - Findings on relevant factual matters

1. As to the factual circumstances leading to the plaintiff's injury, I accept his account of the sequence of events which led to him sustain a straining injury to his back. That account was neither inherently improbable, nor was it unlikely, and significantly, it was not materially or relevantly contradicted.
2. The background circumstances were that earlier, on 16 November 2018, L'Officina delivered Door 115 to the premises. The installation of the door could not be completed at the time L'Officina's installers attended at the site. The door could not be installed because the concrete base required for pivoting the door was structurally inadequate.
3. On 17 November 2018 a decision was made to move Door 115. It weighed approximately 200kgs and was considerably bulky. I consider it unlikely that on that day, Mr Acuri would have attended the site alone, as the sole installer on behalf of L'Officina.
4. The circumstances suggest that his employees, Piero and Mateo were also on the site, notwithstanding that their names had not been entered on Mr Acuri's timesheets for that day. In my view the timesheets do not represent an attendance diary as they are not signed. Instead, I infer from the form and content that they were simply prepared for use as a basis for Mr Acuri billing L'Officina for installation work on the site. That explanation is consistent with the fact that no installation was carried out by Mr Acuri's workers on that date.
5. I find that when the conclusion was reached that Door 115 could not be installed, the L'Officina representatives on site at the time were Mr Malucci, Mr Espimaris, Mr Acuri and most probably, his employed installers.
6. I find it was highly likely that within that array of persons, someone on behalf of L'Officina, probably Mr Acuri, would have advised a Bellevarde employee that Door 115 could not be installed at that time, as had been planned. In those events someone made a decision to move the door.
7. The fact that the door could not be installed, the fact that storage space for materials was limited on the site, and the fact that remedial work was required on the concrete slab before the door could be installed, taken together, suggests that the door had to be moved. This was for the benefit of both Bellevarde and L'Officina, particularly to ensure the door was kept safe from damage whilst it remained on site and uninstalled. In the circumstances which prevailed, there was no option but to achieve this by manual labour, absent the availability of any suitable lifting devices.

Issue 2 - The relevant risk of harm

1. Before considering the question of whether either of the defendants were in breach of a relevant duty of care in the circumstances of the plaintiff's injury, it is necessary to first identify the relevant risk of harm in sufficiently general terms to allow for a range of foreseeable contingent circumstances in which the injury might occur: Roads and Traffic Authority (NSW) v Dederer (2007) 234 CLR 330; [2007] HCA 42, at [60], [62]; Perisher Blue Pty Ltd v Nair-Smith (2015) NSWLR 1, [2015] NSWCA 90, at [98]; Uniting Church in Australia Property Trust (NSW) v Miller [2015] NSWCA 320, at [118].
2. Accordingly, guided by those principles, I find that the relevant risk of harm in this instance was the substantial risk that a musculo-skeletal injury might occur to someone assisting to lift, then carry for a short distance, and then load, a heavy door from its point of rest, onto the back of a truck.

Issue 3 - Duty of care, scope, and content

1. Although aspects of the circumstances in which the plaintiff suffered injury were unusual, nevertheless, in view of the existence of a foreseeable risk of harm to the participants, the general circumstances were sufficient to give rise to a duty of care: Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem [2009] HCA 48; (2009) 238 CLR 420, at [11].
2. In my opinion, all of the persons who participated in the lifting and loading of the door owed a duty of care to the other participants. This was more particularly so where some of the persons involved were directing the process. That duty required the taking of the precaution of exercising reasonable care so as to seek to avoid injury to the other participants. That position was identified by McHugh J, in Allianz Australia Insurance Limited v GSF Australia Pty Limited (2005) 221 CLR 569; [2005] HCA 26, at [59], as follows: "…Where a person directs another person to take a step that places a person in proximity to a passive condition of danger, it is often the case that it is the direction rather than the condition that causes any subsequent harm." In my view, that general statement aptly applies to Bellevarde and to L'Officina in this case.
3. In the prevailing circumstances, such a duty of care could only have been reasonably discharged by ensuring the task was adequately planned and supervised so that those participating in the process were appropriately placed in strategic positions, with postures, to safely bear the weight of the door. This could only have been achieved after adequate evaluation and consideration had been applied and instructions given by the persons co-ordinating the process to ensure the move was carried out in a safe manner.
4. In the circumstances, I find that the burden of that duty of care resided with Bellevarde as an instigating party directing the process, and L'Officina, as a participating party in the loading of the truck, by their servants or agents, thus raising the spectre of vicarious liability for any relevant departures from the respective requirements of the duty to exercise reasonable care in the circumstances.

Issue 4 - Whether the defendants were negligent

1. The starting point for any consideration of questions concerning the liability of Bellevarde and L'Officina is to recognise the need to satisfy the requirements of s 5B and s 5C of the CL Act: Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem [2009] HCA 48; (2009) 238 CLR 420, at [11].

Statutory framework

1. Section 5B of the CL Act provides: 5B General principles (1) A person is not negligent in failing to take precautions against a risk of harm unless: (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and (b) the risk was not insignificant, and (c) in the circumstances, a reasonable person in the person's position would have taken those precautions. (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things): (a) the probability that the harm would occur if care were not taken, (b) the likely seriousness of the harm, (c) the burden of taking precautions to avoid the risk of harm, (d) the social utility of the activity that creates the risk of harm.
2. Section 5C of the CL Act provides: 5C Other principles In proceedings relating to liability for negligence: (a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and (b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and (c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk.
3. In view of my findings to the effect that the servants or agents of both Bellevarde and L'Officina acted together in the common enterprise of the lifting and the loading of the door, it is convenient to concurrently analyse the claims of negligence against them together, as now follows.

Consideration concerning s 5B(1) of the CL Act

1. Taking a prospective view of the action of lifting the door in the lead-up to the plaintiff's injury, in my opinion it was, and ought to have been, reasonably foreseeable to anyone directing the process and giving instructions for carrying out the task, that there was a substantial risk of injury involved which required precautions be taken aimed at avoiding injury to participants.
2. I find that Mr Rolfe, who was acting on behalf of Bellevarde and giving directions and instructions, and both Mr Espimaris and the participant installers who had knowledge of the weight of the door, knew or ought to have known that without the assistance of mechanical lifting aids, the task of lifting and relocating the door as described, was a foreseeably risk-laden undertaking: s 5B(1)(a) of the CL Act.
3. I find that by reason of the heavy, bulky and awkward nature of the door, the risk of injury in the course of manual lifting of an object of such weight and dimensions by multiple persons exerting lifting forces at the same time, was "not insignificant": s 5B(1)(b) of the CL Act.
4. I find that the circumstances involved a foreseeable and "not insignificant" risk of harm from injury, and that a reasonable person in the position of the persons involved in planning, directing, and facilitating the lifting and the loading of the door, would have taken prudent precautions against the risk of injury to a participant: s 5B(1)(c) of the CL Act.
5. Absent the availability of assistive lifting equipment, the required precautions would simply have involved first, giving due planning consideration to the weight and bulk of the door, deciding on where to strategically position the individual handhold positions for the participants to ensure an even and non-injurious bearing of the load, and secondly, to facilitatively supervise, direct and assist the process with such safety considerations in mind, including if warranted, deciding to desist from directing that the door be lifted until further and adequate manual assistance became available.
6. I am satisfied that the evidence indicates that neither Bellevarde nor L'Officina took those precautions, and instead, entered into the task without due consideration for the safety of those who were called upon to assist.

Consideration concerning s 5B(2) of the CL Act

1. I find that a reasonable person in the position of the persons acting on behalf of Bellevarde and L'Officina, would have taken the precautions identified above because the exercise involved a high probability that a person participating in the lifting task would incur a back injury in the process: s 5B(2)(a) of the CL Act.
2. In those circumstances, there was a real and not remote prospect that a back injury was likely to be seriously harmful and debilitating: s 5B(2)(b) of the CL Act.
3. In the circumstances, absent the availability of assistive lifting devices, the burden on both Bellevarde and L'Officina in giving adequate consideration to safe lifting and moving methods, including ensuring the engagement of a sufficient number of strategically placed persons for the task, was negligible: s 5B(2)(c) of the CL Act.
4. No relevant considerations of social utility arise in the described circumstances. There was no social utility in undertaking an unsafe lifting manoeuvre in the workplace: s 5B(2)(d) of the CL Act.

Consideration concerning s 5C of the CL Act

1. In my view, a reasonable person in the position of both the Bellevarde and the L'Officina employees who were responsible for relocating the door would have taken the precautions identified above: s 5C(a) of the CL Act. On a prospective view, the task should have been planned and undertaken differently: s 5C(b) and (c) of the CL Act.

Conclusion as to negligence

1. The evidence relied upon by the plaintiff, which included aspects of the evidence called on behalf of the defendants, satisfies each of the statutory pre-requisites for a finding that both Bellevarde and L'Officina were negligent in the described circumstances in which the plaintiff sustained injury to his back.

Issue 5 - Causation of harm

1. Although the respective defendants have been found to have been jointly and severally negligent, the question of causation of the plaintiff's injury and his consequential losses must be determined according to the requirements of s 5D of the CL Act, which provides as follows: 5D General principles (1) A determination that negligence caused particular harm comprises the following elements: (a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and (b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (scope of liability). (2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party. (3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent: (a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and (b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest. (4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.
2. Although medical investigations revealed the plaintiff had imaging evidence of pre-existing degenerative changes in his lumbar spine, significantly, those changes were asymptomatic. The subject injury was the obvious precipitating cause of the plaintiff's post-injury back pain and the related symptoms which flowed from the back injury. That analysis is sufficient to satisfy the "but for" test for causation in that the negligence of the defendants was the necessary condition of the subject injury: s 5D(1)(a) of the CL Act; Strong v Woolworths Ltd [2012] HCA 5, (2012) 246 CLR 182, at [18].
3. There is no reliable evidence to suggest that, absent the subject injury, the pre-existing changes seen on post-injury imaging of the plaintiff's spine, would have become symptomatic, either to the degree later experienced by the plaintiff, or to some other degree. The defendants carry the onus of proof for such a proposition: s 5D and s 5E of the CL Act. The medico-legal opinion of Dr Roy to the effect that the plaintiff had underlying degenerative changes in his spine does not assist the defendants in that regard.

Issue 6 - Alleged contributory negligence

1. To sustain an allegation that the plaintiff was contributorily negligent in the circumstances of his injury, the liability requirements of s 5B, s 5C, s 5R and s 5S of the CL Act must be satisfied, as must the causation requirements of s 5D of the CL Act.
2. The first defendant pleaded the following general and non-specific particulars alleging contributory negligence on the plaintiff's part: 1. Failing to take any, or any proper, precautions for his own safety; 2. Being inadvertent, and 3. Failing to pay attention while helping carry the heavy door.
3. It is difficult to meaningfully relate those vague allegations to the specific factual circumstances of this case.
4. Section 5R of the CL Act establishes the standard for proof of contributory negligence, as follows: 5R Standard of contributory negligence (1) The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm. (2) For that purpose: (a) the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and (b) the matter is to be determined on the basis of what that person knew or ought to have known at the time.
5. Section 5S of the CL Act provides a basis for a claim, such as the plaintiff's, to be defeated by a finding of contributory negligence. To sustain a defence of contributory negligence the defence bear the onus of proof according to the requirements of s 5B and s 5C of the CL Act: s 5E of the CL Act.
6. In my view, on a prospective analysis, for the reasons that follow, the defence of contributory negligence has not been established: Vairy v Wyong Shire Council (2005) 223 CLR 442; [2005] HCA 62, at [124].
7. The plaintiff was being asked to participate in the task of moving the door onto the truck as one of at least four other workers. Objectively, it was apparent from the prevailing circumstances, including from the non-standard size and the bulky visual appearance of the door, that it was heavy. However, there is no reliable evidence that satisfactorily established the plaintiff had been provided with any pre-injury insight or knowledge as to the weight of the door being of the order of 200kgs. Furthermore, there is no evidence that he had any prior knowledge of the material components of the door, or its manner of construction, which may have otherwise served to inform him that the task might be difficult, and involve significant risk.

Issue 7 - Section 151Z(2) of the WC Act

1. The plaintiff's employer, Taylor, is not a party to the proceedings. A defence invoking s 151Z(2) of the WC Act seeking to impute notional negligence to the plaintiff's employer must be determined according to the requirements of Pt 1A of the CL Act, particularly s 5B of the CL Act: Jurox Pty Ltd v Fullick [2016] NSWCA 180, at [88] to [94].
2. L'Officina argues that the responsibility of Taylor for the plaintiff's injury should be at least 30 per cent. For the reasons that follow, I consider that submission should not be accepted. The employer's duty of care to keep an employee safe from injury is not absolute. The employer's duty is to take reasonable care.
3. The essential question to be determined here is whether the defence have discharged the onus of proof to satisfactorily establish that the plaintiff's employer was a joint tortfeasor for the purpose of engaging s 151Z(2) of the WC Act, which relevantly provides: 151Z Recovery against both employer and stranger "(1) … (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, …"
4. The plaintiff submitted that his damages should not be reduced on account of s 151Z(2) of the WC Act because neither of the defendants have established the essential pre-requisite that his employer failed to take reasonable care for his safety. The plaintiff also submitted that his employer would not have been liable if sued as a joint tortfeasor, and therefore, this statutory provision is not engaged.
5. In evaluating the contrary claim that s 151Z(2) of the WC Act has been engaged, it is important to recognise that it was Bellevarde and not Taylor that created the risk that led to the plaintiff's injury. Bellevarde was responsible for the system of work that led to the respective breaches of duty of care by both Bellevarde and L'Officina, which then led to the plaintiff's injury.

Issue 8 - Cross-claims and proportionate liability

1. In light of the fact that the defendants have exchanged cross-claims, and as I have found each defendant to have been negligent as concurrent wrongdoers, it is necessary to determine the proportions in which the respective defendants should be held responsible for the plaintiff's damages. This is because the respective claims between Bellevarde and L'Officina are apportionable.
2. In that regard, s 35 of the CL Act relevantly provides: 35 Proportionate liability for apportionable claims (1) In any proceedings involving an apportionable claim - (a) the liability of a defendant who is a concurrent wrongdoer in relation to that claim is limited to an amount reflecting that proportion of the damage or loss claimed that the court considers just having regard to the extent of the defendant's responsibility for the damage or loss, and (b) the court may give judgment against the defendant for not more than that amount. (2) If the proceedings involve both an apportionable claim and a claim that is not an apportionable claim - (a) liability for the apportionable claim is to be determined in accordance with the provisions of this Part, and (b) liability for the other claim is to be determined in accordance with the legal rules, if any, that (apart from this Part) are relevant. (3) In apportioning responsibility between defendants in the proceedings - (a) the court is to exclude that proportion of the damage or loss in relation to which the plaintiff is contributorily negligent under any relevant law, and (b) the court may have regard to the comparative responsibility of any concurrent wrongdoer who is not a party to the proceedings. (4) This section applies in proceedings involving an apportionable claim whether or not all concurrent wrongdoers are parties to the proceedings. (5) A reference in this Part to a defendant in proceedings includes any person joined as a defendant or other party in the proceedings (except as a plaintiff) whether joined under this Part, under rules of court or otherwise.
3. An assessment must be made by comparing the relative blameworthiness of the culpabilities of each party so as to rationally identify the causative potency of the negligence of each party according to what is just and equitable in the circumstances: Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529; [1985] HCA 34, at [10]; Wynbergen v Hoyts Corporation Limited (1997) 72 ALJR 65, at p 68; James Hardy & Co Pty Limited v Roberts [1999] 47 NSWLR 425, at p 429, Clarke JA in Macquarie Pathology Services Pty Ltd v Sullivan, NSWCA, unreported (29 March 1995).

Issue 9 - Assessment of damages

1. The plaintiff's amended schedule of damages claimed damages in the amount of $979,717. In the paragraphs that now follow, before setting out my assessment of the plaintiff's entitlement to damages, it is necessary to identify my findings as to the plaintiff's pre-injury circumstances; his most likely circumstances but for his injury; his injuries and treatment; some detail of the review of the medical and allied assessments undertaken of the plaintiff following his injuries; the reliability of the medical opinions on critical matters; and the nature of the plaintiff's remaining disabilities.

Plaintiff's pre-injury circumstances

1. Before his injury the plaintiff was fit and healthy. He had no impairment in his capacity to seek, compete for, gain and sustain employment on the open labour market in his chosen trade as a carpenter. He had exercised that capacity in his own country, in Canada, and in Australia.

Plaintiff's most likely circumstances but for his injury

1. Due to prevailing economic conditions in the Republic of Ireland, there was little opportunity for the plaintiff to maintain work in his trade in that country. He was fortunate to have been sponsored to come to this country on a working visa. He obviously found it congenial to remain here and he availed himself of work opportunities. He and his then partner intended to remain in this country.
2. Were it not for the occurrence of the subject injury, the plaintiff would most probably have remained in Australia working in his trade as a carpenter for wages of the order of the earnings he was receiving at the time of his injury.

Injuries and treatment

1. Whilst the plaintiff was participating in lifting and moving Door 115, he experienced an immediate painful sensation in his lumbar spine. Subsequent radiological imaging scans revealed the injury to be a musculo-ligamentous straining injury to that region, superimposed upon pre-existing but asymptomatic degenerative changes to the lumbar spine, with disc protrusions at the levels L4/5 and L5/S1.

Medical and allied reviews

1. In the paragraphs that follow I set out a chronological summary of the medical and allied attendances that the plaintiff has pursued since his injury, as documented in the exhibits, as follows 1. On 4 December 2018, the plaintiff consulted Dr Jason Kiang, a general practitioner, with complaints of lower back pain relating to an incident on 17 November 2018. A Workcover certificate was provided to him, he was prescribed Naprosyn, and physiotherapy treatment: Exhibit "A", p 103; 2. On 10 December 2018, the plaintiff consulted Dr Christopher Han, a general practitioner in the same practice as Dr Kiang, with a history of worsening lower back pain, with fluctuating severity of symptoms aggravated by a return to work. The plaintiff complained of pain and discomfort in his lower back and he exhibited a restricted range of movements due to stiffness in the muscles of the lower back: Exhibit "A", p 103; 3. On 21 January 2019, the plaintiff attended the emergency department of Prince of Wales Hospital after experiencing aggravation of his lower back pain by lifting a 10kg object at work. A physical examination revealed mild tenderness in the midline of the lumbar spine and tenderness of the paraspinal muscles. He was thought to have had a disc prolapse but without clinical evidence of any nerve root involvement. He was discharged without any diagnostic tests having been arranged: Exhibit "A", pp 106 - 108; pp 269 - 275; 4. On 24 January 2019, at the request of Dr Han, the plaintiff underwent an MRI scan of his lumbar spine. Disc protrusions were found at the levels L4/5 and L5/S1 which were thought to be possibly contacting the right L5 and S1 nerve roots in the sub-articular recesses: Exhibit "A", p 109; 5. On 11 February 2019, at the request of Dr Han, the plaintiff underwent a CT-guided intrathecal epidural injection of cortisone and local anaesthetic into the right perineural space: Exhibit "A", p 110; 6. On 24 February 2019, at the request of Dr Han, the plaintiff underwent a CT-guided injection of cortisone and local anaesthetic adjacent to the nerve in the perineural space of the right L5/S1 neural exit foramen, with contrast to display the outline of the nerve root: Exhibit "A", p 111; 7. On 27 March 2019, at the request of Dr Han, the plaintiff was assessed by Dr Etienne du Preez, a sports and exercise physician: Exhibit "A", pp 99 - 100. Dr du Preez noted the plaintiff had been seeing an exercise physiologist for the previous 3 weeks to assist him with an exercise program to help manage his symptoms. Dr du Preez diagnosed the plaintiff as having chronic mechanical pain as a consequence of his work-related disc protrusion, with associated fear, and avoidance of activity that exacerbate the pain. He also noted an element of psychological distress, anxiety and depression, and significant protective muscle tension. Dr du Preez recommended muscle relaxant medication, pain education, psychological treatment, and a gradual re-introduction to work; 8. On 9 April 2019, at the request of Dr Han, the plaintiff consulted Dr Fred Orr, a clinical psychologist, who tested him and found scores consistent with severe depression, stress, and moderate anxiety. He started the plaintiff on a program of cognitive behavioural therapy to try and exercise some control over his symptoms of pain: Exhibit "Q", p 98; 9. On 21 May 2019, the plaintiff was re-assessed by Dr du Preez: Exhibit "A", pp 101 - 102. Dr du Preez noted the plaintiff's attempt to return to work had been unsuccessful because of the nature of the duties he was required to fulfil. He considered that a return to full duties was unlikely prior to his visa expiring. He recommended pain management education resources, continuing psychotherapy with mindfulness, a strengthening program, and avoiding heavy lifting and repetitive forward bending; 10. On 14 June 2019, at the request of the workers' compensation insurer, the plaintiff was examined by Dr Chris Walls, an occupational physician: Exhibit "A", pp 276 - 283. The purpose of the consultation, which lasted for 35 minutes, was to discuss the plaintiff's capacity for work, his treatment needs and to have a follow-on discussion with the treating general practitioner and the treating physiotherapist, against a background of only slow improvement in pain levels and function, preventing return to work as a carpenter. The assessment was undertaken even though the plaintiff was at that time being required to leave the country within a month due to the expiry of his visa as a consequence of his inability to return to work, a condition of his working visa. Dr Walls confirmed (at p 280), that the plaintiff's low back disorder was probably caused in the incident as identified by the plaintiff, and (at pp 280 - 281) he noted that the plaintiff's future work should be the subject of a series of restrictions to avoid the risk of provoking unacceptable levels of pain, Dr Walls expressed the opinion (at p 282), that there was a consistency between the plausible incident described by the plaintiff, the MRI evidence, the plaintiff's complaints of pain, and his slow recovery from the injury. The assessment was that the plaintiff had only a theoretical capacity to return to light duties, and this would be obviated by the impending need for him to leave the country. 11. On 21 June 2019, at the request of his solicitor, the plaintiff was examined by Dr Uthum Dias, a consultant occupational physician: Exhibit "A", pp 61 - 76; pp 284 - 269. He recorded (at p 67), a history of the lifting incident as described by the plaintiff, and the plaintiff having taken an initial 2 weeks off work followed by an attempt at resuming light duty work for one week, and worsening lower back pain. After noting his findings on examination of the plaintiff (at pp 69 - 70), he diagnosed the plaintiff to have chronic non-specific pain in the lumbar spine at the levels L4/5 and L5/S1 associated with disc protrusions in those areas, secondary to a musculo-ligamentous strain which was directly caused by the described frank lifting incident at work on 17 November 2018. He excluded any underlying contributing causes or aggravating causes for the plaintiff's complaints. He identified (at pp 73 - 74) a number of permanent work restrictions which the plaintiff should observe, including returning to carpentry and similar physical work tasks in view of the chronic nature of the plaintiff's lower back condition and a consequential vulnerability to incurring an aggravation injury which could cause exacerbation of that condition. He identified (at p 75) that the plaintiff's prognosis for further improvement was poor, and at that stage he considered that the plaintiff was not a suitable candidate for surgical intervention; 12. On 10 August 2019, at the request of his solicitor, the plaintiff was re-examined by Dr Dias by means of a telehealth connection as the plaintiff had returned to Ireland in mid-2019 following the cancellation of his working visa: Exhibit "A", pp 79 - 88. The updated history of ongoing symptoms noted pain, stiffness and discomfort affecting the lumbar spine (at p 80), as was the history of the plaintiff having continuing non-surgical conservative treatment for his back problems under the 3 monthly supervision of his general practitioner. He noted (at p 81), that the plaintiff has not been working since his return to Ireland, and (at pp 80 - 81), that he struggles with activities such as walking, standing, sitting and driving for prolonged periods due to worsening back pain, and he is unable to perform exercises such as running, twisting, lifting or bending without the risk of aggravating the condition of his lower back. It was noted (at p 83), that the plaintiff's range of movements were limited. At p 84, Dr Dias restated his earlier diagnosis, by now describing the plaintiff's musculo-ligamentous strain as acute. At p 85, he stated the plaintiff was fit for part-time work for about 25 - 30 hours per week with many restrictions and allowances that must be observed in his work activities. At p 87, Dr Dias considered the plaintiff had a poor prognosis for returning to full-time work, and required vocational retraining for other work. He continued to advise what the plaintiff should have conservative non-surgical treatment and supportive management on an indefinite basis 13. On 23 July 2020, at the request of his solicitor, the plaintiff had a telehealth consultation and assessment with Dr Ben Hooi-Beng Teoh, a consultant psychiatrist: Exhibit "A", pp 89 - 97. Dr Teoh recorded (at pp 91 - 94), a history of depressed mood and preoccupation with negative thoughts, insomnia, a loss of confidence, and irritability, which led to his diagnosis of a chronic adjustment disorder with depressed mood, with the potential for aggravation of the underlying pain leading to persistence of depressive symptoms. Overall, he described the prognosis for the plaintiff to be poor, requiring treatment by a psychologist; 14. On 22 January 2021, at the request of the solicitor for the second and third defendants, the plaintiff was examined in Dublin by Dr Paul Scully, a consultant psychiatrist: Exhibit "A", pp 256 - 263; pp 300 - 307. Dr Scully's report dated 30 January 2021 reviewed the plaintiff's life history and the post-injury medical reports. He expressed opinions (at p 262) to the effect that the plaintiff's stated unhappiness with all that has transpired fulfilled the diagnosis of a depressive episode; whilst the plaintiff has suffered adversity, he disagreed with Dr Teoh's diagnosis of adjustment disorder, and he also disagreed with Dr Orr's formulation as it was based on answers to a questionnaire; and he concluded that the plaintiff's psychosocial stress consequent upon his changed circumstances, did not amount to a psychiatric illness; 15. On 23 March 2021, at the request of the solicitor for the second and third defendants, the plaintiff was examined in Dublin by Dr Deb Roy, a consultant neurosurgeon and spinal surgeon: Exhibit "A", pp 264 - 267. After reviewing the plaintiff's history and examining the plaintiff in conjunction with a consideration of the MRI findings, Dr Roy expressed his opinion (at p 266) to the effect that the plaintiff's back pain, which was now lower down from the injury site, was related to underlying degenerative changes that have been rendered symptomatic due to the described injury, and his prognosis was that the plaintiff may well continue to have a degree of pain into the future even if he were to, in combination, lose weight, exercise, have facet joint injections, and have facet joint denervation; 16. On 15 November 2021, Dr Scully issued an addendum to his report dated 30 January 2021, in which at the request of the solicitors for the second and third defendants, he stated that he agreed to be bound by the Expert Witness Code: Exhibit "A", p 268; p 312; 17. On an unstated date, possibly November 2020, the plaintiff was seen by Dr Sebastian Anderssen at an orthopaedic clinic in County Meath for his severe and disabling mechanical backache symptoms. It was noted that he required analgesia and continuing physiotherapy with regular reviews. The advice was to avoid sitting and standing for prolonged periods and to avoid bending and lifting activities due to pain. Dr Anderssen considered that the plaintiff was unable to work at that time, requiring regular review, and change was not likely given the chronicity of his experience of pain: Exhibit "A", p 105.

Reliability of the medical opinions

1. In cases such as this, where parties rely on the opinions of medical experts, there are governing criteria which influence the acceptability of such opinions, which must be appropriately reasoned: UCPR r 31.27(1)(c), Sch 7 cl 3(1)(e); Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305, at [60], [82], [85]; HG v The Queen (1999) 197 CLR 414; [1999] HCA 2, at [41]; Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21, at [93]. UCPR r 31.27(1)(c), Sch 7 cl 3(1)(e).

Report of Dr Han - 17 August 2019

1. Dr Han's unchallenged report dated 17 August 2019 pre-dated this litigation. It sets out an historical summary of the plaintiff's consultations with his general practitioner, his complaints, and the resultant referrals. There is no indication for not accepting Dr Han's report.

Report of Dr Walls - 21 June 2019

1. The opinions of Dr Walls in his report dated 21 June 2019 were not prepared for this litigation but were instead provided to the workers' compensation insurer for its purposes. This may explain why Dr Walls did not refer to the Expert Witness Code. The report served an investigatory and advisory purpose in informing the insurer of the plaintiff's problems. In my view, the opinion of Dr Walls to the effect that the plaintiff's discomfort would take months to settle should carry no determinative weight not only because that prediction has not been borne out by the passage of time, but also because the opinion was not sufficiently reasoned for it to be reliable: UCPR r 31.27(1)(c), Sch 7 cl 3(1)(e). It is in the form of an ipse dixit, or no more than an oracular pronouncement that does not identify how Dr Walls' specialised knowledge leads to the conclusion he expressed: Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305, at [87]-[89]; HG v The Queen (1999) 197 CLR 414; [1999] HCA 2, at [41]; Naxakis v Western General Hospital (1999) 197 CLR 269; [1999] HCA 22, at 306; Brodie v Singleton Shire Council; Ghantous v Hawkesbury Shire Council (2001) CLR 512; [2001] HCA 29.

Report of Dr Dias - 21 June 2019 and 10 August 2019

1. Dr Dias acknowledged the Expert Witness Code in his reports. His opinions on matters of diagnosis, prognosis and work restrictions were supported by the appropriate level of reasoning: UCPR r 31.27(1)(c), Sch 7 cl 3(1)(e). Accordingly, the unchallenged opinions within his report, on their face, were reliable and capable of acceptance.

Report of Dr Roy - 10 May 2021

1. Dr Roy, a consultant neurosurgeon with spinal specialty, examined the plaintiff in Dublin on 23 March 2021. He issued his succinct four-page report to the first defendant's solicitors seven weeks later, on 10 May 2021. His report did not specifically acknowledge the Expert Witness Code that applies to litigation in this jurisdiction. There is no evidence that the solicitors who instructed him had drawn his attention to the content of that Code and the need for him to acknowledge that Code.
2. That said, Dr Roy made a declaration that, in furnishing his report, he understood his primary duty was to assist the Court, and he declared that he has complied with that duty.
3. Dr Roy's declaration was in the following terms: "I, Mr. Deb Roy declare that, 1. I understand that my primary duty in furnishing written report and giving evidence is to assist the court and this takes priority over any duty which I may owe to the party or parties by whom I have been paid. I confirm that I have complied with and will continue to comply with this duty. 2. I have endeavoured in my reports and in my opinions to be accurate and have all relevant issues concerning the matters which I have been asked to address stated, and the opinions expressed represent my own professional opinion. 3. I confirm that I am a fully trained Neurosurgeon on the Specialist Register of the Irish Medical Council." [Exhibit "A", pp 310 - 311]
4. Whilst there is no basis for doubting Dr Roy's cited declaration, it nevertheless falls short of the requirements of the applicable rules: UCPR r 31.27(1)(c), Sch 7 cl 3(1)(e). This comment should not be read as a criticism of Dr Roy. This element of compliance was the responsibility of the solicitors who retained him.
5. Dr Roy considered the MRI scan of the plaintiff's lumbar spine taken on 24 January 2019, which showed degenerative disc disease at L4/5 and L5/S1 with small disc protrusions close to the right L5/S1 nerve roots and expressed the following opinion: "This man was injured during the course of his occupation. Most of his back pain is now in the lower back region and in my opinion it is related to underlying degenerative changes which have now become symptomatic. Of importance, this was not symptomatic before the accident and I am of the opinion that the causation of his ongoing pain is related to the accident itself. With regard to prognosis, I would expect Mr, Monahan to respond to a combination of exercise, weight reduction and further therapeutic injections, particularly facet joint injections at the L4/5 and L5/S1 region which has not been done to date. If he were to respond to these injections, he would be a candidate for facet joint denervation. A combination of these treatment modalities may lead to a reduction in pain however Mr. Monahan may well continue to have a degree of pain into the future." [Exhibit "A", p 310]

Report of Dr Teoh - 28 July 2020

1. Dr Teoh's report acknowledged the Expert Witness Code. He identified the plaintiff's significantly depressed mood, his preoccupation with negative thoughts, social withdrawal, irritability, financial stress, and worrying about his future and his physical condition. Those indications formed the reasoned basis of his opinion that the plaintiff's presentation was consistent with the DMS 5 diagnostic criteria for chronic adjustment disorder with depressed mood. That opinion fulfilled the requirements for acceptance of expert opinions: UCPR r 31.27(1)(c).

Report of Dr Orr - 9 April 2019

1. The unchallenged historical report of Dr Orr dated 9 April 2019 was a contemporaneous clinical communication addressed to the plaintiff's referring general practitioner. It pre-dated this litigation. In that context, there was no requirement for Dr Orr to acknowledge the Expert Witness Code. He has acceptably explained the clinical basis for his diagnosis of the plaintiff's depression.

Reports of Dr Scully - 30 January 2021 and 15 November 2021

1. Dr Scully was provided with a copy of Dr Teoh's report dated 28 July 2020 and Dr Orr's report of 9 August 2019. He disagreed with those opinions in the sense that whilst he accepted the plaintiff suffered from psychological stress, this was not a psychiatric illness. He appears to have based that opinion on the following axiomatic colloquial statement extracted from DMS 5: "When bad things happen, most people get upset. This is not [necessarily] an adjustment disorder".
2. Without further discussion, Dr Scully then immediately went on to make the following oracular statement: "Therefore it is my opinion that [the plaintiff] does not have an adjustment disorder. In this regard I disagree with the opinion offered by Dr Ben Teoh, Consultant Psychiatrist, in 2020".
3. The terms of that disagreement did not adequately engage with the unchallenged and otherwise acceptable detail of the plaintiff's history as recorded by Dr Teoh: Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25. In my view, those circumstances undermine the basis for acceptance of that aspect of Dr Scully's report: Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58, at [9].
4. That aspect of Dr Scully's opinion is oracular in its nature, and it is in the form that was criticised as an "ipse dixit" in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305, at [60], [82], [85]. In that regard it is not compliant with the requirements of the Expert Witness Code, and therefore, prima facie, it should be rejected: UCPR r 31.27(1)(c), Sch 7 cl 3(1)(e).
5. Ten months after providing his initial report dated 30 January 2021, without additional contextual explanation, Dr Scully prepared an addendum to that report. In that addendum he stated that he had received the Code referred to in UCPR r 32.23 (without stating when and in what circumstances), and he went on to state that he read the Code and agreed to be bound by that Code.
6. I find Dr Scully's ex post facto acknowledgment of the Expert Witness Code to be unsatisfactory and not curative of the self-evident defect in the primary report. That matter could possibly have been explored and explained either in a conclave meeting of expert witnesses or by oral evidence, notwithstanding the disparate geographic locations and time zone differences. Absent such a course, I do not accept the opinions of Dr Scully where they conflict with the opinions of Dr Teoh and Dr Orr.

Reports of Dr du Preez - 27 March 2019 and 21 May 2019

1. The unchallenged historical reports of Dr du Preez dated 27 March 2019 and 21 May 2019 comprise contemporaneous clinical communications addressed to the plaintiff's referring general practitioner. That correspondence pre-dated this litigation. In that context, there was no requirement for Dr du Preez to acknowledge the Expert Witness Code. He has adequately explained the clinical basis for his diagnosis of the plaintiff's problems, namely a chronic mechanical lower back ache with associated muscle tension and pain, chronic pain sensitisation, psychological distress, anxiety, and depression.

Report of Dr Anderssen - Undated

1. Dr Sebastian Anderssen appears to be the plaintiff's general practitioner in County Meath. His undated report was not challenged. He has recorded the plaintiff's history as including severe, restricted, and disabling back pain requiring regular strong analgesia to assist in alleviating his symptoms. He noted the MRI findings and noted the disc protrusions. He noted the plaintiff's pain was aggravated by activities such as prolonged sitting and standing. He also noted that activities such as bending, and lifting, were also very painful for the plaintiff. He noted the plaintiff's problems were chronic, and unlikely to change. He noted the plaintiff has been referred to the orthopaedic team at Conolly Hospital: Exhibit "A", p 105.

Reliability conclusions concerning medical evidence

1. In the preceding paragraphs I have set out my reasons for preferring and accepting the unchallenged opinions of Dr Han, Dr Dias, Dr du Preez, Dr Roy, Dr Anderssen, Dr Teoh, and Dr Orr, along with my reasons for not accepting aspects of the opinions of Dr Walls and Dr Scully.

Disabilities that remain

1. The plaintiff has been left with considerable back disability. In view of my acceptance of the plaintiff's credit as a witness, and my acceptance of his evidence generally, I propose to treat the plaintiff's history as summarised in the medical evidence, and referred to in the paragraph that follows, as evidence of the plaintiff's difficulties that he has experienced as a result of his injuries: Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25, at [70]; s 60 of the Evidence Act 1995.
2. The plaintiff continues to experience ongoing stiffness, pain, discomfort, and restriction of the range of normal movement, with consequential related restrictions on his capacity to work. He experiences consequential low mood and sleeping difficulties. All those matters have an adverse effect upon his earning capacity which was otherwise unrestricted. Those problems have led to the plaintiff suffering a chronic adjustment disorder with depressed mood. In combination, those problems serve to significantly impair his capacity to work.

Damages

1. The parties made disparate submissions on the appropriate composite sum to be awarded for the plaintiff's damages. Some heads of damage were the subject of agreement. The plaintiff's submissions were in the total sum of $998,172.84. In contrast, the defendants' submissions totalled $572,364, subject to argued discounts for alleged contributory negligence and alleged negligence of the plaintiff's employer, arguments which have not been accepted. I now turn to my assessment of the plaintiff's damages.

Non-economic loss

1. The plaintiff submitted that non-economic loss pursuant to s 16 of the CL Act for pain, suffering and for loss of the amenity of his life should be assessed at 30 per cent of a most extreme case. The defendants accepted that submission as reasonable. Having regard to the plaintiff's circumstances as described in his evidence and in the medical evidence reviewed at paragraphs [233] to [256] above, I consider that concession was both fair and appropriate. I therefore assess the plaintiff's damages for non-economic loss at 30 per cent of a most extreme case, which equates to the sum of $159,500.

Past economic loss

1. The plaintiff claimed the sum of $167,109 as damages for past economic loss. That claim was calculated based on an agreed rate for net loss of $1142.90 per week in respect of his inability to work since the time of his injury.
2. The plaintiff described the physically demanding nature of the work of a carpenter: T38.27 - T39.5. He never had difficulty with those tasks before his injury. He has been unable to continue in that work, His rehabilitation was incomplete at the time he was required to leave the country when his visa was cancelled. His potential fitness for part-time work must be considered in light of those overarching circumstances.
3. There is no suggestion that the plaintiff has unreasonably failed to mitigate his losses. He has completed a four day course in computer assisted design but this has not led to any employment. He feels, reasonably and consistent with medical advice, that working in retail sales in a shop, as he had done previously, would be problematic for him because of the need for prolonged standing and the limited scope for varying his activity and his posture in that type of work, assuming such work was available. There have been no openings in that line of work for him to explore until now.
4. The defendants' past economic loss submission accepted that, at the agreed weekly rate, the plaintiff's past economic loss could be calculated over a period of 160 weeks, which yields the calculated sum of $182,864. I find that sum to be the appropriate measure of loss for this head of damage. I therefore assess the plaintiff's damages for past economic loss in the sum of $182,692.

Past loss of employer funded superannuation benefits

1. Past loss of employer funded superannuation benefits is calculated at 11 per cent of the sum assessed for past economic loss. I therefore assess the plaintiff's damages for past loss of employer funded superannuation benefits in the sum of $20,115.

Future economic loss

1. The plaintiff claims the sum of $515,210 as damages for future economic loss. That claim is calculated based on a projection of a loss of $700 per week net over 34 years (x 865.9) less a discount of 15 per cent for potential adverse vicissitudes.
2. In contrast, the defendants submitted there was no basis in the evidence for a precise weekly sum of $700 to be projected over the remainder of the plaintiff's working life. Instead, the defendants conceded that any continuing economic loss suffered by the plaintiff would be more appropriately compensated by a generous buffer of $200,000, considering that the plaintiff has the ambition to be productive, and he has already taken steps to start his own business.
3. Dr Dias has assessed the plaintiff as being fit for lighter part-time work but with a considerable list of restrictions on the activities to be performed in such work: Exhibit "A", p 296. Before his injury, the plaintiff had the capital asset of an unrestricted capacity to seek out, compete for and maintain, a wide range of manual work, both within and outside his trade qualifications. As a consequence of his injury, that ability has been substantially impaired and significantly confined on account of his physical symptoms of pain and his consequential psychological symptoms of depressed mood and irritability.
4. Those considerations, and my review of the medical evidence as summarised at paragraphs [233] to [256] above indicates that there should be a generous but reasonable and fair component included in the plaintiff's damages for future economic loss. The defendants' concession in that regard was fairly made. It is the amount that remains in dispute.
5. Before assessing the appropriate amount of compensation for future loss of earning capacity it is relevant to review salient features of the medical opinions touching upon this issue that I have preferred.
6. In 2019, the opinion of Dr Walls was that the plaintiff had only limited fitness for work. He excluded heavy work, unrestricted lifting, forceful movements, awkward postures, static postures, and work that involved whole body vibrations. Dr Walls considered that the plaintiff had a theoretical capacity for work comprising tasks permitting positional variety, clerical or administrative tasks, but allowing for a degree of inefficiency: Exhibit "A", pp 280 - 282.

Future loss of employer funded superannuation benefits

1. If the plaintiff had not been injured, it is more likely than not he would have legally remained in Australia and worked in his trade and he would therefore have derived the statutory benefit of employer funded superannuation contributions to fund his eventual retirement. He has lost that benefit and he should be compensated for that loss. The quantification of future loss of employer funded superannuation benefits is calculated at 11 per cent of the sum assessed for future economic loss. I therefore assess the plaintiff's damages for future loss of employer funded superannuation benefits in the sum of $49,500.

Past domestic assistance

1. The plaintiff makes no claim for past domestic assistance.

Future domestic assistance

1. The plaintiff claims the weekly sum of $50 per week over the remainder of his statistically estimated life expectancy (x 971.5) less 15 per cent for potential adverse vicissitudes, namely, $41,288.75. The hourly rate which bases that submission has not been identified but assuming it represents one hour per week it seems to be within the broad range of hourly rates for commercially provided domestic assistance often seen in such cases.
2. In contrast, based on the proposition that the plaintiff has not utilised commercial domestic assistance to date, the defendants submitted that therefore, there should be no allowance for future domestic assistance. The assistance he has received has been for less than the statutory compensation threshold of 6 hours per week: T42.5.
3. The plaintiff's evidence as to domestic tasks was to the effect that his partner does the substantive domestic tasks and his input involves carrying out the minor and lighter tasks such as wiping down counters. He feels tasks of that character represent his limit because of his reduced capacity for carrying out physical tasks: T42.12. At present, whilst he continues to live in a small flat this seems to be less of a problem, however, he has plans to marry his partner, have children, and intends to live in a two or three bedroom house. At that stage, his need for domestic assistance will be greater than it is at present.
4. Whilst the medical evidence does not specifically address the topic of assistance with domestic tasks the evidence of the plaintiff is well placed to speak with reasonable authority on that subject, the physical work restrictions identified by Dr Dias' report (at pp 296 - 297) are reasonably transposable into the plaintiff's domestic setting, where some of the heavier and periodically recurring aspects of domestic tasks would fit within the physical limitations recommended by Dr Dias. The plaintiff has a long life of restriction ahead of him. It is reasonable that he be compensated for the need to obtain paid assistance for the heavier domestic tasks of running and maintaining a home. It cannot be assumed that his partner would gratuitously and continuously take on all of those tasks indefinitely.
5. In my view this head of damage is best addressed by the allowance of an appropriate buffer amount. I therefore assess the plaintiff's damages for future domestic assistance in the buffer sum of $40,000.

Future treatment expenses

1. The plaintiff claims a buffer sum of $15,000 for his likely future treatment expenses. Although in contrast, the defendants submitted that there was no evidentiary basis for any future out-of-pocket expenses, they submitted that it would be appropriate to round up the claim for past out-of-pocket expenses to $30,000, which in effect allows for an additional buffer of about $4500 for any likely future treatment expenses. Such a course would be arbitrary.
2. The unchallenged opinion of Dr Dias, who has recommended that the plaintiff indefinitely pursue conservative future medical management, identified a likely ongoing cost of approximately $AUD1500 to $AUD2000 per annum for physiotherapy, pain management counselling sessions with a psychologist, topical and oral analgesia as required, and periodic consultations with medical practitioners. That regime is recommended in addition to adherence to a daily program of home exercises.
3. The basis for Dr Dias' future treatment recommendations is that, in addition to managing his pain, for the foreseeable future, the plaintiff needs to increase and maintain core muscle strength and stability to improve or maintain his functional tolerance and to improve his extensor endurances given his relatively poor prognosis for significant improvement in his symptoms.
4. Other medical evidence indicates that the plaintiff requires analgesia and continuing physiotherapy with regular reviews: Exhibit "A", p 105.
5. As there is no evidence as to the likely cost of the recommended services in the Republic of Ireland, those damages must be assessed by reference to the costs identified by Dr Dias, also taking into account the recommendations of Dr Roy for therapeutic facet joint injections at L4/5 and L5/S1, possibly followed by a facet joint denervation procedure aimed at reducing, but not eliminating, the plaintiff's experience of pain. The costs of Dr Roy's treatment recommendations are not known.
6. The weekly equivalent of Dr Dias' estimates is between $28 and $38 per week. The average of those two figures is $33 per week. The projection of that average sum over the plaintiff's statistical life expectancy (x 971.5) yields the amount of $32,059. There is no requirement for reducing any amount assessed for future treatment on account of potential adverse vicissitudes as the statistical formula has already been discounted for mortality.

Past out-of-pocket expenses

1. I assess the plaintiff's past out-of-pocket expenses in the agreed sum of $25,430.

Summary of damages assessment

1. My assessment of the plaintiff's damages is summarised as follows: (a) Non-economic loss $159,500 (b) Past economic loss $182,864 (c) Past loss of superannuation $20,115 (d) Future economic loss $450,000 (e) Future loss of superannuation $49,500 (f) Past domestic assistance $Nil (g) Future domestic assistance $40,000 (h) Future treatment expenses $15,000 (i) Past out-of-pocket expenses $25,430 Total $942,409

Disposition

1. The plaintiff has established that both Bellevarde and L'Officina were negligent in the circumstances that led to his accident, and he has established that negligence was the cause of his injuries. As he has sued those defendants jointly and severally, he is entitled to a verdict against each of them in the assessed amount of $942,409.
2. On the respective cross-claims exchanged between Bellevarde and L'Officina, the responsibility of those respective defendants has been apportioned as being 80 per cent to Bellevarde ($753,927.20) and 20 per cent to L'Officina ($188,481.80).

Monetary jurisdiction of the Court

1. The monetary jurisdiction of this Court for this type of case is, and has for the previous 25 years, been limited to $750,000: s 44(1) of the District Court Act 1973 (NSW). The Appendix to these reasons sets out the legislative history of this Court's monetary jurisdiction pursuant to s 44(1) since 1 July 1973, when at that inception date, it was $10,000. Whilst a judgment may be entered against a particular defendant for an amount in excess of the Court's jurisdiction, in this case, the plaintiff cannot seek satisfaction of that judgment against the affected defendant for an amount in excess of $750,000: Richards v Cornford [2010] NSWCA 99, at [12]. This was known to the parties at the commencement of the hearing: T19.2. The Court's file will be noted accordingly.

Costs

1. As the plaintiff has succeeded in obtaining judgments in his favour against each defendant, he should have an order that the defendants should pay his costs of the proceedings against each defendant on the ordinary basis unless a party can show an entitlement to some other costs order, for which there should be liberty to apply. The cross-claimants should bear their own costs of the cross-claims and bear the plaintiffs' costs in the same proportion as identified at paragraph [294] above.

Orders

1. I make the following orders: 1. Verdict for the plaintiff against the defendants jointly and severally in the assessed amount of $942,409; 2. Judgment for the plaintiff against the first defendant Bellevarde Constructions Pty Ltd in the amount of $753,927.20, noting that, by reason of the jurisdictional defence pleaded, the plaintiff is only able to recover the amount of $750,000 from that defendant; 3. Judgment for the plaintiff against the second and third defendants L'Officina by Vincenzo Australia Pty Ltd and Allianz Australia Limited in the amount of $188,481.80; 4. The defendants should pay the plaintiff's costs of the proceedings against them in the proportion of 80 per cent by Bellevarde Constructions Pty Ltd and 20 per cent by L'Officina by Vincenzo Australia Pty Ltd; 5. The respective cross-claimants should bear their own costs in respect of their cross-claims; 6. The exhibits may be returned; 7. Liberty to apply on 7 days' notice if further or other orders are required.

APPENDIX HISTORICAL CHANGES TO DISTRICT COURT'S JURISDICTIONAL LIMIT Date Legislative Instruments amending s 44(1) of District Court Act 1973 Jurisdictional Limit 1 1/7/1973 District Court Act 1973, s 44(1) at inception $10,000 2 1/4/1975 District Court Amendment Act 1975 No. 1 $20,000 3 1/4/1983 District Court Amendment Act 1982 No. 41 $100,000 4 1/7/1993 Courts Legislation (Civil Procedure) Amendment Act 1991 No. 12 $250,000 5 18/7/1997 District Court Amendment Act 1997 No. 58 $750,000

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: 11 March 2022